QUESTIONS PRESENTED
On April 3, 2018 you asked for our opinion as to whether a child, A~ (“Claimant”),
can receive benefits based on the earnings record of Number Holder and Intended Mother
[1] D~ (NH), when that child was conceived via artificial insemination using the sperm
of C~, NH’s husband, and carried by G~, a traditional surrogate [2] who was NH’s sister.
SUMMARY
Based on our review of the information you have provided, it is our opinion that on
this record, Claimant has presented insufficient evidence to demonstrate a parent-child
relationship under the laws of the Commonwealth of Pennsylvania. Therefore, we conclude
that A~ can not be considered NH’s child under Pennsylvania law and is therefore not
entitled to receive benefits based on NH’s earnings record.
BACKGROUND
On December XX, 2017, C~ filed an application for child’s insurance benefits, survivor
claim, on behalf of Claimant based on the NH’s earnings record.
C~ and the NH were married on September XX, 1995. According to the information provided
to us in your email requesting our opinion in this matter, C~ stated that NH was unable
to bear children, so they arranged for NH’s sister, G~, to be impregnated with C~’s
sperm and to act as a traditional surrogate for the couple. No medical or other evidence
regarding this procedure was submitted.
G~ gave birth to Claimant on October XX, 2011, and the birth certificate lists G~
and C~ as her mother and father. At Claimant’s first medical appointment five days
after her birth, NH was listed on the pediatrician’s records as Claimant’s mother.
According to C~, Claimant lived with him and NH from the time she was born, and he
and NH raised Claimant as their own. C~ submitted an August XX, 2013 lease listing
himself, NH, and Claimant as tenants as evidence of their cohabitation. G~ is also
listed on that lease as a tenant.
Additional evidence submitted by C~ includes the couple’s 2016 joint tax return listing
Claimant as a dependent and identifying her as “daughter,” and NH’s November XX, 2011
DIB application listing Claimant as her child.
There is no evidence that NH legally adopted Claimant, that she had started the adoption
process, or that NH, G~, and C~ had a written surrogacy agreement. NH died on October
XX, 2017. At all relevant times, NH was domiciled in Pennsylvania.
DISCUSSION
The Social Security Act (the “Act”) and implementing regulations provide that surviving
child’s benefits may be granted based on the earnings record of a fully insured individual
if the child, as defined in 42 U.S.C. § 416(e), has:
(1) filed an application for child’s insurance benefits;
(2) was unmarried at the time of application;
(3) was under the age of eighteen; and
(4) was “dependent” upon the insured.
42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2013).
Under the Act and regulations, the term child means a natural child, legally adopted
child, stepchild, [3] grandchild, stepgrandchild, or equitably adopted child. See Section 216(e) of the Act, 42 U.S.C. 416(e); 20 C.F.R. § 404.354. Section 402(d)(3)
of the Act further provides that a child may be deemed to be dependent, and therefore,
the legitimate child of the insured, if she satisfies the provisions of 42 U.S.C.
§416(h)(2)(A) (would be able to inherit personal property from an intestate NH according
to the law of the state where the NH was domiciled at the time of death). Two other
alternatives, outlined in § 416(h)(2)(B) [4] and § 416(h)(3), [5] are inapplicable here.
Because NH was domiciled in Pennsylvania at the time of her death, Pennsylvania inheritance
law governs the determination of whether Claimant could inherit NH’s personal property
intestate as her child. 20 C.F.R. §§ 404.355(a)(1), 404.355(b)(1). Pennsylvania law
provides that personal property can pass from a parent to their issue (or legally
adopted child) through intestate succession. See 20 Pa. Const. Stat. Ann. §§ 2103, 2108 (West 2017). The word “issue,” “[a]s applied
to the descent of estates, means all lawful, lineal descendants of a common ancestor.”
See 1 Pa. Const. Stat. Ann. § 1991 (West 2017).
A. Evidence that NH Acted In Loco Parentis Alone Does Not Confer Inheritance Rights on Claimant.
Pennsylvania law does not provide for inheritance by an individual with custody or
in loco parentis status. In In re Estate of Hoffman, 466 A.2d 1087 (Pa. Super. Ct. 1983), the Pennsylvania Superior Court held that a
foster child raised by relatives is not “issue” as that term is defined by Pennsylvania’s
laws of intestate succession, even if the child is held out to the community as the
relatives’ own. In Bahl v. Lambert Farms, Inc., 819 A.2d 534 (Pa. 2003), the Pennsylvania Supreme Court determined that a man born
out of wedlock, raised by his grandparents but held out to the world as their natural
child (thus creating an in loco parentis relationship), was not entitled to inherit a share of his grandparents’ estate. The
court, interpreting a previous version of the Pennsylvania intestacy statute, explained
“it is apparent that the General Assembly intended, as a general rule, to limit ‘issue’
to those in the decedent’s blood line and did not intend to include as first degree
‘issue’ individuals without the requisite consanguinity who had merely been treated
like, or held out as, the decedent’s children.” Bahl, 819 A.2d at 538. [6]
Thus, the fact that NH acted in loco parentis and held Claimant out to be her child is not enough to establish the necessary relationship
to allow Claimant to inherit from NH, nor have the right to receive child’s benefits.
B. Claimant Has Not Demonstrated That She Was NH’s Legally or Equitably Adopted Child
For the Purpose of Benefits Under the Act.
A child may also be eligible for benefits as the insured’s child if he or she was
legally adopted by the insured. 20 C.F.R. § 404.356. The laws of the State where the
adoption took place apply to determine if a child has been adopted. Id. Claimant has not alleged that NH legally adopted her, and there is no evidence indicating
that she was legally adopted. Thus, Claimant cannot be considered the NH’s legally
adopted child for purposes of the Act.
In addition to being eligible for benefits as an insured’s child via legal adoption,
a child may also be eligible for benefits as the insured’s child if he or she was
equitably adopted. 20 C.F.R. § 404.359. A child may be equitably adopted where the
insured agreed to adopt the child, but the adoption did not occur. 20 C.F.R. § 404.359.
The agreement to adopt must be one that would be recognized under state law so that
the claimant would be able to inherit a child’s share of the insured’s personal property
if she were to die without leaving a will. Id. “The agreement must be in whatever form, and [the clamant] must meet whatever requirements
for performance under the agreement, that State law directs.” Id.
In order to establish an equitable adoption, Claimant must meet the following requirements:
(1) an express [7] contract to adopt the child usually between the adopting parent and the child’s biological
parent; (2) legal consideration for the adopting parent’s promise to adopt; (3) in
some states, a promise by the adopting parent to give the child inheritance rights;
(4) surrender of the child to the adopting parent such that the person placing the
child does not retain the right to exercise any control or supervision over the child;
(5) performance by the child under the contract; and (6) sufficient lapse of time
so that child could have been legally adopted under applicable state law.
POMS GN 00306.175(C), .180, .185, .190, .200, .205, .210.
There is no common law adoption in Pennsylvania, but Pennsylvania courts have recognized
equitable adoption as a valid means of granting inheritance rights to children in
limited circumstances. See Kilby v. Folsom, 238 F.2d 699, 700 (3d Cir. 1956); POMS GN 00306.225. For example, in Kilby, the court found that an equitable adoption had occurred where the adoptive parents
had entered into a written agreement manifesting their intent to adopt an infant child
and thereafter treated the child as their own including providing clear evidence that
the child could share in the estate of the adopting parents. Kilby, 238 F.2d at 701-02. On the other hand, in Hashem o/b/o Joseph v. Celebrezze, 226 F. Supp. 450, 452 (E.D. Pa. 1964), the court found that an equitable adoption
had not occurred where there was no impediment to an adoption for many years, but
the insured took steps to effectuate adoption only upon learning that disability benefits
might be available through adoption.
Here, there is insufficient evidence that NH was Claimant’s mother via equitable adoption.
In the first instance, there is no evidence of any written agreement to adopt Claimant,
nor is there any evidence that NH took any steps to effectuate a legal adoption in
the six years between Claimant’s birth and NH’s death. That said, there is some evidence
that G~ surrendered Claimant to NH: NH was listed as Claimant’s mother in medical
records; NH claimed her as a dependent on her taxes; and NH listed Claimant as a child
on her DIB application, However, this existing evidence is complicated by the fact
that G~ also apparently lived in the same household as Claimant and NH, as shown by
the lease submitted by C~. In the absence of anything to establish that NH had a written
agreement to adopt Claimant or took steps towards adopting her, Claimant has not shown
that she had a parent-child relationship as a result of a legal or equitable adoption
by NH.
C. Claimant Has Not Demonstrated That She Was Legally NH’s Child Via a Surrogacy Agreement
For the Purpose of Benefits Under the Act.
Unlike other states, Pennsylvania currently does not have a statutory scheme governing
surrogacy arrangements, nor has the Pennsylvania Supreme Court addressed the issue
of surrogacy. The Pennsylvania Superior Court has addressed surrogacy arrangements
in only two opinions. In the first, J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006), the court held that a gestational surrogate
[8] who had a written surrogacy contract with the biological father lacked standing to
seek custody and remanded the case with instructions to award full custody to the
biological father. The status of the intended mother, who was not a party to the contract
or to the lawsuit, was not addressed.
See id.
More recently, the Pennsylvania Superior Court addressed the issue of surrogacy in
In re Baby S., 128 A.3d 296 (Pa. Super. Ct. 2015). In that case, the intended parents, then a married
couple, hired a lawyer and executed multiple contracts governing surrogacy issues,
including a contract with the gestational surrogate in which they agreed to arrange
for their names to be placed on the child’s birth certificate and to take legal responsibility
for the child. Id. at 298-300. They began the process of seeking a court order designating them as the
child’s parents on the birth certificate, [9] but the intended mother ultimately refused to sign the paperwork because she and
her husband were having marital difficulties. Id. at 301. A few weeks before the child was born, the gestational surrogate filed a
petition seeking a court order declaring the intended parents to be the legal parents
of the child. While the intended father willingly took physical custody of the baby,
the intended mother, now no longer in a relationship with the intended father, challenged
the petition, arguing that the surrogacy contract was void and unenforceable as against
public policy. Id.
Despite the intended mother’s arguments, the Pennsylvania Superior Court affirmed
the lower court’s holding that surrogacy agreements are not void as against public
policy, noting the “growing acceptance of alternative reproductive arrangements in
the Commonwealth,” as evidenced by case law enforcing a contract addressing the parental
obligations of sperm donors, the Department of Health’s longstanding procedures facilitating
alternative reproductive arrangements, and the absence of any contrary legislation.
Id. at 305-06. The court then held that the intended mother was the legal mother of the
child, and that formal adoption proceedings are not the only route to legal parent
status, pointing to the common use of Department of Health procedures for “ensur[ing]
that intended parents acquire the status of legal parents in gestational carrier arrangements.”
Id. at 306-07.
Thus, Baby S. seems to have identified two possible paths to becoming a legal parent to a non-biological
child outside the formal adoption process. First, although the court did not expressly
rule on their legitimacy, the Baby S. court recognized that the Pennsylvania Department of Health has established procedures
that have been widely used to facilitate the designation of intended parents as birth
parents on a child’s birth certificate without a formal adoption proceeding. Here,
NH did not pursue that option, as is clear from Claimant’s birth certificate.
Second, the Baby S. court held that a contractual agreement can lead to legal parent status. This second
path seems similar to equitable adoption, in that the contracts in question in Baby S. were written agreements that provided that the intended parents would be legally
responsible for the child, that they would follow Department of Health protocol to
have their names placed on the child’s birth certificate, and that neither the gestational
mother nor the egg donor had any legal rights or obligations with respect to the child
(i.e., that they agreed to surrender the child to the intended parents). 128 A.3d at 298-300.
Because of this strong parallel, it seems unlikely that NH would be considered to
be Claimant’s legal parent via a surrogacy agreement for the same reasons she would
not be considered to have equitably adopted Claimant: there is no written surrogacy
agreement or contract. There is also no evidence that NH attempted to follow Department
of Health procedures to have her name designated on Claimant’s birth certificate,
nor did she appear to profess any intention to do so. [10]
In summary, based upon the information provided, there is no evidence that Claimant
is a natural child, stepchild, adopted child, or equitably adopted child of the NH
under the Act.
CONCLUSION
For the reasons stated above, it is our opinion that a Pennsylvania court would likely
find that Claimant has not presented sufficient evidence to demonstrate a parent-child
relationship under the laws of the Commonwealth of Pennsylvania. If C~ supplies additional
information, such as a written surrogacy contract to which NH was a party, we would
be happy to review this claim again.