NPR - 5/21/12
by Nina Totenberg
The U.S. Supreme Court ruled Monday that that a Florida man's children, conceived after his death through in vitro fertilization, are not entitled to Social Security survivors benefits. More than 100 similar cases are pending before the Social Security Administration, but Monday's ruling is unlikely to resolve most of them.
Karen Capato's husband, Robert, was diagnosed with esophageal cancer in 2000. Fearing that his chemotherapy would leave him sterile, Robert deposited sperm at a fertility clinic before his cancer treatments began. When Robert's condition deteriorated, the couple planned to have Karen use the frozen sperm to conceive after Robert's death so their son would have siblings.
Eighteen months after Robert's death at age 44, Karen gave birth to twins.
As she had with their other child, Karen applied for survivors benefits, based on Robert's earnings and taxes paid under the Social Security system. The agency denied the claim. It contended that under the Social Security Act, eligibility is based on the intestacy laws of each state — meaning whether an individual would qualify to inherit if there were no will. And in Florida, where the couple lived, state law bars inheritance for children conceived posthumously.
Karen Capato challenged the denial of benefits in court, contending that Social Security Administration had misread the statute. She argued that the word "child" is clearly defined in the 1939 Social Security Act as the biological offspring of a married couple, and she contended that the section of the law linking benefits to state intestacy statutes only applies when biological parentage is disputed. A federal appeals court sided with her, but on Monday, the U.S. Supreme Court ruled unanimously against her.
Writing for the court, Justice Ruth Bader Ginsburg said the Social Security Administration's reading of the law, linking it to state intestacy statutes, is "better attuned" to the design of the Social Security statute, which, she said, is to "benefit primarily those the deceased wage earner actually supported in his or her lifetime."
Ginsburg conceded that that the agency's interpretation may not be the only reasonable one, but under the court's long-standing precedent, she said as long as it is reasonable, it is entitled to deference.
Freezing sperm for future use goes back to the early 1960s, says Pepperdine law professor Kristine Knaplund.
"Right about the time we started planning the space program," Knaplund says, "astronauts began banking their sperm partly because we weren't sure if they would come back, and partly because even if they came back we weren't sure they'd still be fertile."
Since then, banking sperm has become far more commonplace for people of childbearing age who have potentially terminal diseases, or for those going off to war.
The Social Security Administration has more than 100 cases pending with claims like Capato's. An unknown number of those were filed by the surviving spouses of military personnel who froze sperm or embryos before deploying.
But unlike Robert Capato, who lived in a state where the intestacy law is very specific for posthumously conceived children, most of these children do not live in a state where the law is clear. Thirteen states have laws that specifically allow posthumously conceived children to inherit in cases where there is no will. Four states, including Florida, specifically do not. As for the rest, it will be up to the state courts to determine what the state law is by determining who is a "child" entitled to inherit under state intestacy law.
In short, in most of the country, this is a question still very much up in the air.
Alternative reproductive technology (ART), also known as assisted reproductive technology, is an alternative to traditional reproduction, used by persons who are infertile. It is also an umbrella term for conceiving children through medical technology that encompasses in vitro fertilization, sperm donation, ovum donation, a surrogate carrier, and other techniques. Conception by ART can lead to legal conflict over who the parents of the resulting child are. (Nolo's Plain-English Law Dictionary)
Center for Disease Control (CDC)
What is Assisted Reproductive Technology?
Although various definitions have been used for ART, the definition used by CDC is based on the 1992 Fertility Clinic Success Rate and Certification Act that requires CDC to publish the annual ART Success Rates Report. According to this definition, ART includes all fertility treatments in which both eggs and sperm are handled. In general, ART procedures involve surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman. They do NOT include treatments in which only sperm are handled (i.e., intrauterine—or artificial—insemination) or procedures in which a woman takes medicine only to stimulate egg production without the intention of having eggs retrieved.
ART has been used in the United States since 1981 to help women become pregnant, most commonly through the transfer of fertilized human eggs into a woman’s uterus (in vitro fertilization). However, deciding whether to undergo this expensive and time-consuming treatment can be difficult. According to CDC’s 2010 ART Success Rates Report, 147,260 ART cycles were performed at 443 reporting clinics in the United States during 2010, resulting in 47,090 live births (deliveries of one or more living infants) and 61,564 infants. Although the use of ART is still relatively rare as compared to the potential demand, its use has doubled over the past decade. Today, over 1% of all infants born in the United States every year are conceived using ART.
ART can alleviate the burden of infertility on individuals and families, but it can also present challenges to public health, as evidenced by the high rates of multiple delivery, preterm delivery, and low birth-weight delivery experienced with ART.1 Monitoring the efficacy and safety of technologies that affect reproduction, such as contraception and ART, has become an important public health activity.
15 Years of ART Surveillance
CDC’s Division of Reproductive Health has a long history of surveillance and research in women’s health and fertility, adolescent reproductive health, and safe motherhood. In response to Congressional mandate, CDC began work to strengthen existing data collection efforts initiated by the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) and to develop a national system for monitoring ART use and outcomes. In 1997, CDC submitted to Congress the first annual report, entitled Assisted Reproductive Technology Success Rates: National Summary and Fertility Clinic Reports. This report gained a wide audience, including potential ART patients and their families, policy makers, and health care providers. Maternal and child health professionals, as well as state and local public health departments, also began requesting data on birth outcomes among infants born using ART technologies in their localities. In 2002, CDC prepared the first ART surveillance report on ART use and outcomes by state. The ART Surveillance Summary is now published annually as a supplement to CDC’S Morbidity and Mortality Weekly Report (MMWR).
In 2006, the Division launched the CDC National ART Surveillance System (NASS), which builds on previous data collection systems and implements CDC model standards for surveillance.2 The success of this system depends on key partnerships. Our partners include ASRM and SART, who are involved in framing the surveillance and research questions and in collecting and reporting data from member clinics. Other important partners who represent consumers of ART and infertility services include RESOLVE, the American Fertility Association, and most recently, Fertile Hope. These organizations provide ongoing consultations about the Report and its use for public health communications and education.
|1986||SART begins a system to collect data from member clinics.|
|1992||The Federal Trade Commission intervenes in a case of false advertising by a fertility clinic, resulting in the Fertility Clinic Success Rate and Certification Act (FCSRCA). The act requires CDC to collect data from clinics and submit an annual report to Congress on ART success rates.|
|1997||CDC publishes the first ART Success Rates Report.|
|2001||CDC begins to develop the States Monitoring ART (SMART) Collaborative by linking ART data with state surveillance data.|
|2002||CDC publishes the first ART Surveillance Summary in the MMWR.|
|2004||CDC starts to develop NASS|
|2007||CDC posts a Web-based version of the 2005 Preliminary ART Success Rates in May and releases the complete annual Report in late October.|
|2009||CDC continues to update and enhance ART surveillance and monitoring activities.|
Research on the Safety of ART
CDC’s Division of Reproductive Health developed a productive research program on the safety of ART. This research provides evidence that can be used to make public health recommendations and health care practice recommendations. In addition, the research helps individual providers and patients make informed decisions about infertility treatment and services.
Findings from our research include the following—
- Multiple embryo transfer in women with good prognosis increases multiple deliveries without substantially improving live birth rates.
- The national trend toward reducing the number of embryos transferred has not translated into a large decrease in the multiple birth rate.
- Despite fewer embryos transferred, day-5 embryo transfer does not translate into fewer multiple births.
The advent of NASS allowed us to document information such as gestational age and weight at delivery. On a larger population scale, NASS analyses confirmed what previous small U.S. studies or studies from European nations have suggested—
- The risk of pre-term delivery and of low/very low birth weight is increased with ART, largely because of the elevated risk of multiple pregnancy.
- Adverse perinatal outcomes are more common among singleton ART infants than among naturally conceived singletons.
Expanding the Scope of ART Safety Research
In 2001 CDC began a collaborative project with the Massachusetts Department of Public Health to explore the possibility of linking ART data with birth certificate and death certificate records. The main objective was to—
- create a population-based dataset of ART mother-infant pairs with information on both conception and delivery, and
- compare this with similar data from other mother-infant pairs in the population.
The results of the project indicate that systematic assessment of certain adverse outcomes is feasible through linkage of the ART data with existing vital statistics and health care information systems. To develop surveillance data on maternal and infant health outcomes after ART, we are discussing the possibility of expanding the linkage process to more information items (e.g., hospital discharge summaries) and more states. Florida and Michigan were recently included in 2008.3 We envision establishing a collaborative network of 5–10 states where use of ART is common and where vital statistics records allow linkages. Such a network would be a first and important step toward developing a national surveillance system of ART maternal and infant health outcomes, and strengthen our capacity to evaluate these outcomes.
CDC is also collaborating with SART, the Boston University School of Public Health, and the Massachusetts Department of Public Health to support the Massachusetts Outcomes Study of ART (MOSART) project. This project links the SART database with multiple record systems maintained by the Commonwealth of Massachusetts and may also provide a rich source of information on the outcomes of ART.
1 ART includes in vitro fertilization with trans-cervical embryo transfer (IVF), intracytoplasmic sperm injection (ICSI), and gamete and zygote intrafallopian transfer (GIFT, ZIFT). ART does not include intrauterine (artificial) insemination only or use of ovarian stimulation medications without egg retrieval.
3 A large number of ART procedures are performed each year in both these states; as of 2006, Florida ranks sixth among all U.S. states and territories in the number of procedures performed, and Michigan ranks thirteenth.
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