By ASHBY JONES
Advances in reproductive technology that were the stuff of science fiction just a few decades ago are wreaking havoc on a corner of the Social Security system—survivor benefits for some children whose parents have died.

Every year, more babies are born stemming from sperm or embryos that have been stored for months or years. In some cases, one parent has already died, usually the father.

Although the federal government generally must pay monthly benefits to children when parents die, the law is murky on whether it has to do the same for a child conceived after a parent's death. Sometimes, the Social Security Administration pays, sometimes it doesn't. So far, the decision has largely depended on the laws in the state in which the deceased parent lived.

"We're in a brave new world here.…Technology has gone far beyond where the law ever dreamed it would," said Sonny Miller, a lawyer in Minnesota and a member of the legislative committee of the Minnesota bar association's probate and trust law section.

State laws on posthumous birth—or the birth of a child after the death of a parent—vary widely. Eleven states explicitly allow recognition of a parent-child relationship that begins with posthumous conception. The laws of most states, however, define the parent-child relationship more traditionally. For the relationship to exist, a parent must be alive at the time of conception.
Ambiguities in the law surrounding the legal rights of a child born posthumously are increasingly leading to lawsuits. In recent years, courts in Massachusetts, New Jersey, Arizona and Iowa have ruled that such children are entitled to Social Security benefits. Courts in Florida, New Hampshire and Arkansas have ruled that benefits should not be paid.

One of the latest cases has made it to Utah's Supreme Court. At the center of the case is a 38-year-old widow, Gayle Burns, in Murray, Utah. In December 2003, she gave birth to a son, Ian, using sperm that her husband, Michael, had deposited in a sperm bank the year prior to his death. Michael died in 2001 of complications from non-Hodgkin's lymphoma.

Ian received a total of about $35,000 in Social Security survivor benefits. Last August, however, the agency decided that Ms. Burns had failed to show Ian was her dead husband's child, as defined under the federal Social Security Act. In response to the agency's demands to return the money, Ms. Burns was forced to file for personal bankruptcy.

A couple of months later, she sued the agency, and this June, the case ended up in the state's Supreme Court. A date hasn't been set for a hearing.

"The rationale [the administration] gives is that Michael is not Ian's father," said Ms. Burns, who hasn't remarried and works as an administrative assistant at a commercial real-estate firm in Salt Lake City. "I'll keep fighting that until the courts recognize it."
The Social Security Administration said it was simply following the law. The Social Security Act requires the federal government to look to state law to determine whether a parent-child relationship exists. "The appropriate state's…law must be considered," said Michael Baksa, a spokesman for the administration's regional office in Denver.

Mr. Miller, the Minnesota lawyer, said he understood the agency's reluctance to pay out benefits to posthumously conceived children. Typically, he said, the benefits are intended to help parents who have experienced an unexpected tragedy and loss of income. "It's not meant as something you expect to get when you make the decision to have a child," he said.

He said the Minnesota legislature recently decided not to change the state's law to account for posthumous conception. Otherwise, he said, the state would have had to amend much of its law concerning inheritance.

Critics of the traditional approach say lawmakers aren't moving quickly enough to catch up with science. "These are sensitive issues, complicated issues, dealing with the start of life and end of life, and legislatures are too often all too happy to stay away from them completely," said Steven Snyder, a lawyer in Maple Grove, Minn., and the chairman of an American Bar Association committee on reproductive technology.

"You'd think the law on the administration of a federal benefit would be the same across the country…but it's not," said Maureen McBrien, a lawyer in Boston and co-author of a book on assisted reproductive technology. "The law is all over the place."
In a Nebraska case she is handling on behalf of a widow, Ms. McBrien has argued that the patchwork approach violates the U.S. Constitution's equal-protection clause.

She also pointed out that under the laws of every state, if a man died while his wife is pregnant, the child would receive benefits. If a woman conceives one month after her husband dies, benefits are typically denied. "It's an arbitrary distinction," she said.

" ... Critics of the traditional approach say lawmakers aren't moving quickly enough to catch up with science. "These are sensitive issues, complicated issues, dealing with the start of life and end of life, and legislatures are too often all too happy to stay away from them completely," said Steven Snyder, a lawyer in Maple Grove, Minn., and the chairman of an American Bar Association committee on reproductive technology. ... "

its pretty sad when children can't be taken care of...