You asked for advice as to whether N~ is entitled to surviving child’s insurance benefits
on the record of B~, the Number Holder (NH). N~ was conceived through in vitro fertilization
(IVF) after the death of the NH. For the reasons discussed below, we believe that
N~ does not meet the requirements for entitlement under section 216(h)(2)(A) of the
Social Security Act (the Act).
Factual Background
The information you provided shows that the NH married B2~ (B2~) on August XX, 2009.
The couple learned that the NH would be deployed to Afghanistan and met with C~, D.O.,
to discuss cryopreservation of his sperm. Dr. C~ stated that the NH was interested
in cryopreservation so that “B2~ could conceive his child should he not return alive.”
Dr. C~ referred the couple to another doctor and the NH’s sperm was cryopreserved
on July XX, 2010.
On April XX, 2011, the NH died while serving with the United States Army National
Guard in Afghanistan. The NH was an Iowa resident at the time of his death.
Approximately two years later, on July XX, 2013, B2~ underwent an IVF[1] procedure. That procedure was successful and B2~ gave birth to N~ on April XX, 2014.
The NH’s name was not initially listed on N~’s birth certificate.
On October XX, 2014, B2~ filed petitions in the Iowa District Court for P~ County
to reopen the NH’s estate and establish paternity. In the petitions, B2~ informed
the court that the NH “cryogenically preserved his genetic material and agreed it
could be used by [B2~] . . . in the event that [he] did not safely return from his
service.” She also informed the court that she was “artificially inseminated”[2] with the NH’s genetic material, resulting in N2~’s birth. The NH’s mother, as the
executor of the estate, stipulated to the petitions.
On December XX, 2014, the district court granted B2~’s petitions and found that the
NH is N~’s “paternal father.” The NH was subsequently listed as N~’s father on his
birth certificate.
On April XX, 2015, B2~ filed an application, on behalf of N~, for surviving child’s
insurance benefits on the NH’s record. In connection with the application, B2~ submitted
N~’s birth certificate; the DNA test report; the district court petitions and orders;
the NH’s casualty report; medical records related to the cryopreservation and IVF
procedures; a letter from Dr. C~; an email from M~, the Survivor Outreach Support
Coordinator for the Iowa National Guard; and a Department of Defense letter regarding
the NH’s genetic sample.[3]
Analysis
The Act provides that the child of an insured individual who dies fully or currently
insured is entitled to benefits if he has applied for benefits, is unmarried and under
18, and was dependent on the insured individual at the time his application was filed.
See Act § 202(d); 20 C.F.R. § 404.350. To qualify as the child of an insured individual,
the child must be the natural child, legally adopted child, stepchild, grandchild
or stepgrandchild, or equitably adopted child of the insured individual. See 20 C.F.R. §§ 404.350(a), 404.355-404.359.
In this case, there is no evidence to suggest that N~ is the legally adopted child,
stepchild, or equitably adopted child of the NH. Therefore, the relevant inquiry is
whether N~ qualifies as the NH’s natural child under the Act.
An applicant can qualify as the natural child of an insured individual if the child
could inherit the individual’s personal property as his child under the intestacy
laws (i.e., the laws that apply when the decedent has no will) of the state in which
the individual was domiciled at the time of his death.[4] See Act §§ 216(e)(1), 216(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If the applicant qualifies
as the insured individual’s child, he is deemed dependent upon the individual for
purposes of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a).
The NH was domiciled in Iowa at the time of his death. Therefore, we apply Iowa’s
intestacy laws to determine if N~ would qualify as the NH’s child under Iowa law.
See Act § 216(h)(2)(A); 20 C.F.R. § 404.355.
Although an Iowa court held that the NH is N~’s father, we do not believe the court’s
decision is consistent with, or meets the requirements for establishing paternity
under Iowa’s intestacy laws. Iowa Code Ann. § 633.220A specifically outlines the standard
for establishing inheritance rights for children conceived and born after an intestate’s
death. This section states, in relevant part, that a child conceived after the intestate’s
death or born as the result of the implantation of an embryo after the intestate’s
death, is deemed the intestate’s child as if the child had been born during his lifetime,
if:
-
(1)
a genetic parent-child relationship between the child and the intestate is established;
-
(2)
the intestate, in a signed writing, authorized the intestate’s spouse to use the deceased’s
parents genetic material to initiate the posthumous procedure that resulted in the
child’s birth; and
-
(3)
the child is born within two years of the death of the intestate.
See Iowa Code Ann. § 633.220A.
All three elements listed in section 633.220A must be met to establish inheritance
rights for a posthumously conceived child. Based on the facts presented, it is our
opinion that N~ would not be deemed the NH’s child under Iowa intestacy law. Although
a genetic parent-child relationship exists between the NH and N~, the other two elements
of the statute are not met. N~ was not born within two years of the NH’s death, nor
did the NH authorize B2~, in a signed writing, to use his genetic material to initiate
the procedure that resulted in N~’s birth. Because the court’s order is not consistent
with state law, we do not believe the agency is bound by the court’s paternity determination.
Pursuant to Social Security Ruling (SSR) 83-37c, which adopts the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the agency is bound by a state court decision when
four prerequisites are met: (1) an issue in a claim for Social Security benefits has
been determined by a state court of competent jurisdiction; (2) the issue was genuinely
contested before the state court by parties with opposing interests; (3) the issue
falls within the general category of domestic relations law; and (4) the resolution
by the state trial court is consistent with the law enunciated by the highest court
in the state. In the current matter, it is our opinion that the court order does not
satisfy these prerequisites. Although a court of competent jurisdiction determined
the issue of paternity and that issue falls within the general category of domestic
relations law, the other two requirements have not been satisfied.
First, the paternity issue was not genuinely contested by parties with opposing interests.
To the contrary, all parties to the district court proceeding stipulated to the petitions.
Because the relevant issues were not rendered in a contested proceeding, the agency
is not bound by the state court's findings. See Gray, 474 F.2d at 1373.
Additionally, although Iowa’s highest court has yet to interpret section 633.220A,
we do not believe the district court's resolution is consistent with Iowa law. The
court order establishing the NH’s paternity is only two sentences long and does not
outline its reasoning or reference Iowa’s intestacy statutes. As discussed above,
the court’s decision is also inconsistent with Iowa law requiring not only a genetic
parent-child relationship, but also the birth of the child within two years and the
intestate’s signed consent to use his genetic materials after his death. As the state
court order does not meet all the requirements outlined under SSR 83-37c, the order
is not conclusive of paternity and the agency is not bound by the court’s decision.
CONCLUSION
Based on the available evidence, and for the reasons outlined above, it is our opinion
that N~ would not qualify as the NH’s natural child under Iowa intestacy laws and
does not meet the requirements for entitlement under section 216(h)(2)(A) the Act.
Kristi A. Schmidt
Chief Counsel, Region VII
By: Rhonda J. Wheeler
Deputy Regional Chief Counsel for
Kristin Bunnell
Assistant Regional Counsel