35 Pages Posted: 22 Aug 2012
Date Written: August 20, 2012
Legal issues surrounding posthumously conceived children often arise in the context of the Social Security Act, which looks to state law to determine who qualifies for benefits through a deceased parent. Because the states have failed to promptly respond to the possibility of posthumous conception, reliance on state law does not adequately protect the rights of this special class of children. This Note argues that Congress must create a uniform standard of Social Security eligibility for posthumously conceived children. It details the various developments in reproductive technology that have allowed for the possibility of posthumous conception and explains the Social Security Act and its relationship with the Social Security Administration. It then discusses the four circuit court opinions that created a split on how the Act should be interpreted and the Supreme Court's 2012 decision resolving the split. The Note finally argues that posthumously conceived children should not have to rely on state intestacy statutes to qualify for benefits and details the reasons that Congress must update the Act at the federal level before offering a solution.
Keywords: posthumous conception, posthumously conceived children, social security, survivor benefits, Chevron deference
Suggested Citation: Suggested Citation
Kennedy, Alycia Marie, Posthumous Conception and the Social Security Act (August 20, 2012). Boston College Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2132532