The child claimant was born in Alaska using in vitro fertilization. The NH is the alleged father. The evidence presented is the testimony of the fertility specialist, and lay testimony from a psychologist who know the child's mother or the NH. In order to meet Alaska's "sufficient evidence" standard to prove the NH's paternity of the child, more documentary evidence is required, such as records identifying the sperm donor, additional background history of the patient, and the medical techniques employed.

You asked whether a child born in the State of Alaska, using in vitro fertilization, is entitled to child's insurance benefits, based on statements from a fertility clinic and from a psychologist, but without DNA testing or other indices of support or paternity.

ANSWER

We recommend further development before paying this claim. As it stands, the record probably supports payment under Alaska's "sufficient evidence" standard, which is somewhat ambiguous and tends to favor findings of paternity. By contrast, in other Region X states, after the death of an alleged father, the standard is much higher, "clear and convincing proof." See e.g. Idaho Code § 15-2-109(b)(2)(2003). To be more sure of the choice to pay, supporting medical records from the fertility specialist would be persuasive and an explanatory statement by Claimant's mother concerning the absence of any efforts to obtain child support from the number holder would be informative.

FACTUAL BACKGROUND

In September 1997, Sharon V~ consulted Nels A~, M.D., regarding infertility. Dr. A~ attempted several interventions over the next year to produce a successful pregnancy. Sharon went though an in vitro fertilization (IVF) cycle in August 1998, with a collection of all eggs and subsequent replacement of embryos. This IVF intervention resulted in the birth of Raleigh V~ on May 17, 1999.

In a sworn statement, Dr. A~ reported that it was his understanding that Laurence F. S~, the number holder, was attempting to father children with Sharon during the prior year. Dr. A~ observed that Laurence came with Sharon to the egg collection and that he provided sperm for the fertilization of all of the eggs collected for IVF. When Sharon had a miscarriage in October 1998, Laurence accompanied her to that visit, also. Dr. A~, in a sworn statement, attests that Laurence was Raleigh's father and appeared to have an ongoing relationship with Sharon at the time of conception.

Paul E. T~, Ph.D., a Clinical Psychologist, reported in a notarized statement that the NH was known to him, in the course of professional work, to be Raleigh's father. Dr. T~ reported that he was informed of Laurence's fatherhood on November 16, 1998, December 17, 1998, and on September 25, 2000.

Laurence died on January 11, 2003, while domiciled in the State of Alaska. According to Sharon, his body was found 6 days after he died. She said his family refused any DNA testing and had the body cremated immediately. There is no evidence that he shared a residence with Sharon, gave any child support for Raleigh, or produced any statement of paternity. Laurence's name is not listed on Raleigh's birth certificate.

Sharon reported that she asked the NH's family members to provide DNA samples, but they have not responded to her requests. She believes that they are concerned that she will file a claim against his estate, the final disposition for which begins in December 2003 and resolves no earlier than April 2004.

Social Security claims representatives contacted the funeral home that handled the Laurence's remains. An officer at that funeral home, BJ, reported that Laurence's brother requested that no DNA sample be taken prior to cremation.

DISCUSSION

A surviving child is entitled to child's insurance benefits if:

1. a. 

   The wage earner died either fully or currently insured; and

2. b. 

   The child is the "child," as defined in the Social Security Act, of the deceased wage earner; and

3. c. 

   The child is under the age of 18 (there are other tests for this not applicable here); and

4. d. 

   The child was dependent upon the deceased wage earner; and

5. e. 

   The child is not married; and

6. f. 

   An application for child's insurance benefits is filed.

See Social Security Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2003).^[1] Here, the NH was fully insured at the time of his death. The child, Raleigh, is under the age of 18, is not married, and has applied for benefits. Thus, the only issues are whether Raleigh meets the second and fourth requirements above. If Raleigh meets the second requirement, he is also considered dependent, which would satisfy the fourth requirement. See 20 C.F.R. § 404.361.

Raleigh may prove that he is Laurence's "child" (the second requirement) in any of the following four ways:

1. a. 

   He could inherit the Laurence's property under Alaska intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

2. b. 

   He is Laurence's natural child and Laurence and Sharon went through a ceremony that would have resulted in a valid marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

3. c. 

   Before his death, Laurence acknowledged in writing that Raleigh was his son; was decreed by a court to be Raleigh's father; or was ordered by a court to contribute to Raleigh's support because he was his son. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R.§ 404.355(a)(3).

4. d. 

   Laurence is shown by evidence satisfactory to the Commissioner of Social Security to have been Raleigh's father, and he was living with Raleigh or contributing to his support at the time of his death. See Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4)

   Number 1 requires application of state intestacy law; numbers 2 through 4 require the application of alternative federal standards.

   ALASKA INTESTACY LAW

   In Alaska, an individual is the child of the individual's natural parents, as established under ALASKA STAT. § 25.20.050. See ALASKA STAT. § 13.12.114. Section 25.20.050 states:

   A child born out of wedlock is legitimated and considered the heir of the putative parent when: (1) the putative parent subsequently marries the undisputed parent of the child; (2) for acknowledgments made before July 1, 1997, the putative parent acknowledges, in writing, being the parent of the child; (3) for acknowledgments made on or after July 1, 1997, the putative father and mother both sign a form for acknowledging paternity under Alaska Stat. § 18.50.165; or (4) the putative parent is determined by a superior court without jury or by another tribunal, upon sufficient evidence, to be a parent of the child. Acceptable evidence includes evidence that the putative parent's conduct and bearing toward the child, either by word or act, indicates that the child is the child of the putative parent. That conduct may be construed by the tribunal to constitute evidence of parentage. When indefinite, ambiguous, or uncertain terms are used, the tribunal may use extrinsic evidence to show the putative parent's intent.

   None of the first three elements are met. There was no marriage and there were no acknowledgments of any kind. The fourth test is open to question, however. The problem is the standard to apply. The evidence of paternity must be "sufficient evidence."

   In general, in federal law, "sufficient evidence" is established if, taken as a whole, reasonable minds could reach different conclusions on the evidence presented. See Childress and Davis, Federal Standards of Review (3rd Ed.) (1999). However, we have found no Alaska cases construing the term of art "sufficient evidence," under ALASKA STAT. § 25.20.050(a). We have produced one opinion on the subject. See Memorandum from Regional Chief Counsel, Seattle, to Assistant Regional Commissioner - MOS, Seattle, Inheritance Rights Under Alaskan Law (July 30, 1998). In that opinion, we discussed In the Matter of the Adoption of L.A.H., 597 P.2d 513 (1979), in which the Supreme Court of Alaska adopted a probate master's findings under ALASKA STAT. § 25.20.050(a) that the natural father of a child "had legitimated the child by filing an affidavit of his paternity and by conducting himself as the father of L.A.H" in the context of denial of an adoption decree pursued by the mother's husband. The probate master's report stated the following:

   The legitimation code also provides that the same may be accomplished by judgment of the Superior Court upon sufficient evidence, among which acceptable evidence is that the alleged father conducts himself as such. Both parents acknowledge he is the father. They have lived together with the child off and on after her birth from sometime in 1974 until early 1977; the child was acknowledged his to their friends and relatives. The alleged father testified he wanted his name on the birth certificate, but he testified the mother refused to cooperate in making the necessary affidavit to change the birth certificate. Alleged father has maintained a house and paid some support, part of the time involved, of both the mother and the child.

   Id., at 516, n.10. See also Grober v. State, 956 P.2d 1230 (1998) (where the Supreme Court of Alaska upheld a superior court's determination that, based on genetic testing [ALASKA STAT. § 25.20.050(d)], the putative father was the parent of the child).

   In the case at hand, the best evidence is the testimony of the fertility specialist, Dr. A~, stating that Laurence donated the fertilizing sperm and escorted Sharon to all of the fertility visits, including the miscarriage visit. ^[2] Dr. A~ appears to be an expert in fertility. In Alaska, a witness qualified as an expert is entitled to offer an opinion based on his or her specialized knowledge and facts or data, not necessarily otherwise admissible facts or data, made known to the expert prior to the adjudication. See Alaska Rules of Evidence, Rules 703 and 705.

   Dr. A~ believed that Laurence donated the sperm for the conception of Raleigh and, as the doctor directing the IVF, would have been in the best position to know. He was familiar with fertility patients in general and their visitation practices, and he observed specifically that Laurence behaved as if he were the donating father. ^[3] The statute permits use of such evidence of paternal conduct and "bearing toward the child" in assessing sufficiency of evidence. See ALASKA STAT. § 25.20.050(a). Dr. A~'s testimony is uncontroverted.

   On the other hand, in previous cases, SSA has received much more documentary evidence of the in vitro process, including records identifying the sperm donor, additional background history of the patient, and the medical techniques and procedures employed to achieve pregnancy. See e.g., Memorandum from Regional Chief Counsel, Seattle, to Ass't. Reg. Comm.-MOS, Seattle, Gestation and Birth After Death II Arlando Lombard (August 15, 2002). By contrast here, Dr. A~'s testimony stands alone, without contemporaneous medical records verifying the testimony. His testimony would constitute better evidence than documentation of underlying facts standing alone (see Alaska Rule of Evidence 705), but additional, routine business and medical documentation would make this record more compelling.

   There is corroborating lay testimony from the psychologist, Dr. T~, who apparently had some relationship with either Laurence or Sharon, perhaps in the context of the miscarriage. Generally, a lay witness' impression is assayable against the background of ordinary experience. M~, S~, H~, and I~, Scientific Evidence in Civil and Criminal Cases (4th ed. 1995), § 1.02. The relevant question is whether on a particular subject, a weigher of fact could receive appreciable help from the particular lay witness. Id. In Alaska, lay testimony is probative if it is rationally based on the perception of the witness and helpful to a clear understanding of his testimony. See Alaska Rules of Evidence, Rule 701.

   Dr. T~ reported that Laurence's fatherhood was "known to me." Dr. T~ testified that he was informed of Laurence's fatherhood on 3 occasions, twice before Raleigh's birth. The early dates may be suggestive. Sharon had a miscarriage in October 1998, according to Dr. A~. Dr. T~ reported that he was informed that Laurence was the father of Raleigh on November 16, 1998 and December 17, 1998, within months after the miscarriage. We do not know exactly who the source of the report was or why Dr. T~ was informed, but it seems plausible Sharon told Dr. T~ in counseling after her miscarriage, but we cannot say for certain. Notwithstanding the uncertainty, taken with the testimony of Dr. A~, this lay testimony from the psychologist supports the claim for child's insurance benefits.

   Additionally, Sharon reported that Laurence was the father, which counts at least as some evidence. See People ex. rel. Kelly v. Pasko, 540 N.E.2d 462 (Ill. 1989) (holding that the mother is competent to name the father of the child); see also Fortier v. Laviero, 522 A.2d 313 (Conn. 1987) (same). Sharon also provided a rationale as to why Laurence's brothers and other family members might not agree to DNA testing, namely, that they were concerned that she might file a claim against his probate estate and use such DNA testing to her advantage. If this is true, one can infer that Laurence's family believed he was Raleigh's biological father.

   If Sharon wished to file a clam against Laurence while he was alive, she could have required DNA testing to be conducted by the State of Alaska. See ALASKA STAT. §§ 25.20.050(e), 25.27.040, 25.27.165. There is no statutory requirement for family members to undergo genetic testing after the death of a putative father, even if paternity is disputed. The family members, without formal comment, have simply not agreed to any genetic testing of themselves or of Laurence's body before cremation.

   Taken as a whole, the evidence here is not as complete as in Adoption of L.A.H. There, both parents acknowledged paternity, lived together with the child off and on after her birth, the alleged father testified he wanted his name on the birth certificate, and maintained a house and paid some support to mother and child. If that case presents the standard for "sufficient evidence," that standard has not been met here. Moreover, without further development with DNA testing of the NH's family, the evidence cannot be improved, unless members of his family are willing to provide corroborating testimony, but that appears unlikely.

   However, it is not clear that Adoption of L.A.H. presents the minimal "sufficient evidence" standard; rather, the evidence there appeared very strong, beyond the requirements of the standard. Applying the federal construction of "sufficient evidence," evidence is sufficient if reasonable minds could reach different conclusions based on the evidence presented.

   Dr. A~'s expert opinion, corroborated by the lay testimony of Dr. T~, arguably establishes that Laurence was the sperm donor. Reasonable minds could differ based on that uncontroverted evidence alone. On this basis and on the unavailability of other evidence from Laurence's family, a reasonable dispute exists as to Raleigh's paternity. That arguably meets the "sufficient evidence" standard.

   FEDERAL STANDARDS

   Raleigh cannot meet number 2 of the alternative federal standard because Laurence and Sharon were not married and there is no indication that they went through a ceremony that would have resulted in a valid marriage except for a legal impediment. Raleigh cannot meet number 3 of the federal standard because there is no evidence that Laurence acknowledged in writing before his death that Raleigh was his child. Nor is there a court order stating that Raleigh is Laurence's child or requiring Laurence to pay support for Raleigh. There is no evidence of any court proceedings or court orders. Further, there is no evidence that the NH lived with or contributed to Raleigh's support after Raleigh was born.

   Number 4 of the federal methods is not easily resolved, however. Dr. A~ reported that Laurence came with Sharon to the IVF visits, provided sperm, and came with her when she had her miscarriage. This is sworn testimony from an expert witness, a fertility expert, and is not controtverted in the record. This fertility specialist believed that Laurence contributed the fertilizing sperm. That may be evidence satisfactory to the Commissioner that Laurence is the biological father, although the record could be clarified with DNA testing.

   Whether it is satisfactory evidence need not be resolved here. The second prong of the fourth test fails, however, because the requisite support was not ongoing at the time of Laurence's death. The Court of Appeals for the Ninth Circuit has set the support standard at a very low threshold. Support must only be proportional to the needs of the child at any given stage of life. For example, helping the mother move to a new residence and repairing her roof during the first trimester of the pregnancy constituted support commensurate with the needs of the unborn child. Doran v. Schweiker, 681 F.2d 605, 608 (9th Cir. 1982). Also, buying gas for the pregnant mother, sharing grocery and laundry expenses, spending much free time together constituted sufficient support. See Smith v. Heckler, 820 F.2d 1093, 1095 (9th Cir. 1987). Here, Laurence was not providing support to the 3 year old Raleigh.

CONCLUSION

The record supports payment under Alaska's "sufficient evidence" standard, but to be certain, we need some specific development. You should ask Sharon for any medical records of the IVF procedures, or any medical records identifying the Laurence as the sperm donor, or documenting that he attended any of her medical visits, such as the miscarriage visit. The more visits he attended, the less he looks like an anonymous sperm donor. If necessary, recontact Dr. A~ to obtain his routine medical records of Sharon's IVF efforts. These medical records are protected by the doctor-patient privilege, so get authorization in writing from Sharon. See Alaska R. Evid. Rule 504. Laurence does not have a privacy interest in Sharon's medical records, they are personal to her, so only she can refuse to disclose them. Id. Moreover, he has died, and his relatives have no basis to assert privacy rights or privileges on his behalf. See generally Henderickson v. California Newspapers, Inc., 121 Cal. Rptr. 429, 431 (Cal. App. 1975) (invasion of privacy, under common law, does not survive death and is not available to relatives).

Additionally, please obtain a sworn statement from Sharon explaining why she did not seek child support from Laurence or otherwise seek his further parental involvement after Raleigh was born. Such a statement, like her speculation that Laurence's family members were uncooperative because they did not want her making a claim on the NH's estate, would give clarifying background information. If she was concerned that she might lose a child support dispute in court, it would be good to know why she might think that.

A child, born to a married woman by means of artificial insemination performed by a licensed physician and consented to in writing by both spouses, is considered for all purposes the natural and legitimate child of both spouses.

ALASKA STAT. § 25.20.045. Note that this assumes consent in writing and a marriage, both missing here. We have the word of the fertility specialist and his professional observations.

Where the NH was domiciled in Alaska at his death, SSA may make a paternity determination based on sufficient evidence of paternity. In this case, the child's mother was the NH's daughter. She alleged that her father had raped her and was the father of her child. Although the NH failed to acknowledge paternity or expressly recognize the child as his natural child, there is sufficient evidence of paternity, i.e., the mother's sworn testimony, her brother's statement, the police investigation, the NH's plea of nolo contendere to rape and incest charges, and the lack of evidence of sexual contact with anyone other than the NH.

You have requested a legal opinion regarding whether Adam R~ is the father of Myron R~.

FACTUAL BACKGROUND

On October 27, 1999, Sarah R~ filed an application on behalf of Myron R~ for child's benefits on the account of the deceased number holder (N/H), Adam R~. Sarah is the N/H's biological daughter.

On July 23, 1982, Sarah fled the home in Stebbins, Alaska, in which she had been living with the N/H, her mother, and siblings, and went to a Women's Shelter in Nome, Alaska. The following day, she filed a report with the Nome Police Department accusing the N/H of sexually assaulting her. She stated that this conduct had been continuing since she was about seven years old and that she was not certain how many times or exactly when she had been sexually assaulted. Although she reported that the most recent incident was around July 6, 1982, this was not the only incident.

Sarah also told the police that she thought she might be pregnant from the sexual assault by her father and that she had never had sex with another man in her life. She said her last boyfriend was four years prior to the report. See Department of Public Safety Report, Cpl. D. Casanovas, July 24, 1982 [Police Report of July 24, 1982].

During a criminal investigation into Sarah's report, Cpl. D. Casanovas of the Nome Police Department concluded that the N/H had numerous sexual contacts with Sarah and that Sarah had "not recently nor probably ever had sex with a male other than Adam J. R~." See Department of Public Safety Report, Cpl. D. Casanovas, July 25, 1982 [Police Report of July 25, 1982]. Two witnesses reported that Sarah had told her of the N/H's sexual assaults on her, and one witness, Sarah's brother Charles R~, stated that he knew the N/H had been raping Sarah since 1979. See Alaska State Trooper Report, August 10, 1982.

On July 26, 1982, a grand jury in Nome, Alaska, indicted the N/H for one count of rape, and one count of incest. See Indictment for Sexual Assault in the First Degree, Nome Superior Court, July 26, 1982. On December 16, 1982, the N/H pleaded nolo contendere to incest as charged in count II of the July 26th indictment. See Judgment and Order of Probation, Nome Superior Court, December 16, 1982. Sentencing was conducted at the same hearing, at which time Sarah testified that she was pregnant and that the N/H was the father of her baby. See Audio Tape of Sentencing Hearing (side 1), Nome Superior Court, December 16, 1982 [Sentencing Tape, December 16, 1982]. The N/H did not deny that he was the father of Sarah's baby. Mr. John R. V~, the N/H's attorney at the time (and the current District Attorney for the Second Judicial District of the State of Alaska, in Nome) has stated that there was no dispute that Sarah had become pregnant as a result of the incest. See Letter from John R. V~ to Larry H~, December 10, 1999.

Myron was born on February 26, 1983. A birth certificate, obtained from the Alaska Bureau of Vital Statistics on January 27, 2000, lists only his mother's name. See Bureau of Vital Statistics Certificate of Live Birth, Issued January 27, 2000.

The N/H died in Alaska on March 9, 1995. At the time Sarah filed the application for child's benefits, she signed a statement that she believed the N/H was Myron's father, because he raped her and she became pregnant with Myron. She claimed the rape occurred in May 1982, and that Adam was convicted, in June 1982, of raping her. She stated that she lived with the N/H from her birth in 1962, to June 1982. In May 1992, she married Brian C. S~, Sr. See Statement of Claimant or Other Person, October 27, 1999.

DISCUSSION

A child is entitled to child's insurance benefits if he applies for such benefits, is unmarried, is under the age of 18, and was dependent upon the N/H at the time of the N/H's death. See 42 U.S.C. § 402(a)(1). There is no dispute that Myron meets the age, filing and non-marriage requirements. The focus here is on whether he meets the dependency requirement.

A child is deemed dependent if he or she was (1) living with or supported by the N/H at the time or his or her death, or (2) is the legitimate child of the N/H. See 42 U.S.C. § 402(d)(3). If a child is illegitimate, he or she may nonetheless be deemed legitimate for purposes of child insurance benefits, and hence deemed dependent and entitled to benefits, if he would be entitled to inherit personal property from the N/H under State intestate law of the state where the N/H was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A).

On November 27, 1998, the agency began applying the most favorable version of State inheritance law in effect from the date of the death of the decedent, or from the first date a claimant might possibly be entitled to child insurance benefits, up through the date of the final administrative decision. See 20 C.F.R. § 404.355(b) (1999). Moreover, the agency began applying State law without regard to time limits therein, or court order requirements. Id. Here, the decedent was domiciled in Alaska at the time of his death.

In Alaska, for purposes of intestate succession by, through, or from a person, an individual is the child of the individual's natural parents, regardless of their marital status, and the parent and child relationship may be established as indicated under Alaska Statute section 25.20.050. Alaska Stat. § 13.12.114(a). Section 25.20.050 provides that:

A child born out of wedlock is legitimated and considered an heir of the putative parent when (1) the putative parent subsequently marries the undisputed parent of the child; (2) for acknowledgments made before July 1, 1997, the putative parent acknowledges, in writing, being a parent of the child; (3) for acknowledgments made on or after July 1, 1997, the putative father and the mother both sign a form for acknowledging paternity under AS 18.50.165; or (4) the putative parent is determined by a superior court without a jury or by another tribunal, upon sufficient evidence, to be the parent of the child. Acceptable evidence includes evidence that the putative parent's conduct and bearing toward the child, either by word or act, indicates that the child is the child of the putative parent. That conduct may be construed by the tribunal to constitute evidence of paternity. When indefinite, ambiguous, or uncertain terms are used, the tribunal may use extrinsic evidence to show the putative parent's intent.

AS § 25.20.050 (1999). Because the agency applies State law without regard to time limits therein, or court order requirements, the Program Operations Manual System (POMS) provides that SSA may make the determination outlined in subsection 4 of section 25.20.050. See POMS GN 00306.080. Although there are no Alaska Attorney General Opinions or Alaska Supreme Court precedents that would provide significant guidance in our decision, we believe there is sufficient evidence to show that the N/H is Myron's father.

Despite the N/H's failure to acknowledge paternity or expressly recognize Myron as his natural child, both Sarah's sworn testimony and the police investigation indicated that, at the time of Myron's conception, Sarah had never had sexual relations with anyone other than the N/H. See Police Report of July 25, 1982; see also Sentencing Tape, December 16, 1982. Sarah also testified under oath that the N/H was the father of her child. See Sentencing Tape, December 16, 1982. Finally, Sarah's brother indicated that he knew that the N/H had been raping Sarah since 1979. See Alaska State Trooper Report, August 10, 1982. There is no evidence to indicate that Sarah had engaged in intercourse with anyone other than the N/H around the time of Myron's conception.

Moreover, the N/H's plea of nolo contendere would estop him from relitigating the question of whether he had intercourse with Sarah. Although under federal law an exception is made to the rule of collateral estoppel for convictions based on pleas of nolo contendere, "Alaska law is significantly different from federal law on the subject of nolo contendere pleas . . . ." Pletnikoff v. Johnson, 765 P.2d 973, 979 (Alaska 1988) (M~, C.J. dissenting). In Burcina v. City of Ketchikan, 902 P.2d 817 (Alaska 1995), the Alaska Supreme Court held "based on public policy grounds, that a civil plaintiff is collaterally estopped from relitigating any element of a criminal charge to which he has plead nolo contendere." Burcina, 902 P.2d at 822. More recently, the Alaska Supreme Court has held that a defendant in a subsequent civil action was precluded from challenging the facts which constituted the elements of offenses to which he had pled nolo contendere. See Lashbrook v. Lashbrook, 957 P.2d 326, 329 fn. 2 (Alaska 1998) (citing Burcina, 902 P.2d at 822). Therefore, the N/H's nolo contendere plea here would preclude him from denying that he had sexual intercourse with Sarah around the time of Myron's conception.

CONCLUSION

Based on all the evidence, we believe an Alaska State court would find that the N/H was Myron's natural father. As a result, Myron would be entitled to inherit from the N/H's estate, and hence is entitled to child's insurance benefits.