NH and spouse married in Canada in May 2008. The NH and spouse produced a marriage certificate from O~, Canada and our office has previously concluded that the marriage is valid under Florida law. The NH lives in Florida and we look to the Florida Intestacy Law to determine the parent-child relationship. The spouse entered into an Agreement for Artificial Insemination in October 2009 with a sperm donor. The donor finally and irrevocably waived his paternity rights. The donor would not attempt to form a parent-child relationship with any child conceived by the spouse using the donor’s sperm and consented in advance to the adoption of any child conceived through the process by NH, who was the intended co-parent for any such child.

Under the Florida law, a child’s birth in wedlock creates a strong presumption of parentage. There is no indication anyone else has challenged the relationship between NH and Claimant. The donor is barred from challenging that relationship. Under Florida law, intestate property passes to a decedent’s heirs as prescribed by the Florida Probate Code. Heirs include the decedent’s children. The NH’s marriage to the spouse indicates the Claimant is NH’s child for CIB purposes.

QUESTION

You have asked whether the claimant, who was conceived through artificial insemination and born to a woman who is the same-sex spouse of the number holder, is the number holder’s child for determining the claimant’s entitlement to child insurance benefits (CIB) on the number holder’s earnings record.

OPINION

The claimant is the number holder’s child for determining the claimant’s entitlement to CIB on the number holder’s earnings record.

BACKGROUND

M2~ (NH) married M1~ in Canada in May 2008. M1~ entered into an “Agreement for Artificial Insemination” in October 2009 with a sperm donor. The agreement states that the donor finally and irrevocably waived his paternity rights and would not “attempt to form a parent-child relationship” with any child conceived by M1~ using the donor’s sperm. He also agreed “in advance to consent to the adoption of any child conceived through [the] process” by NH, who was the “intended co-parent” for any such child. The agreement provides that it should be construed under Florida law, including Florida Statute 742.14, and bears the signature of a Florida notary.

M1~ became pregnant through artificial insemination using sperm from this donor and gave birth to K~(Claimant) in January 2011. The evidence provided does not indicate that NH contributed biological material for Claimant’s conception.

NH applied for disability insurance benefits (DIB) on January xx, 20xx, and SSA found NH entitled to DIB. NH identified Claimant as her child in her DIB application. NH applied for CIB on Claimant’s behalf on July xx, 20xx. In the CIB application, NH indicated she lived in T~, Florida.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to DIB if the claimant is the individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2015).^[1] “Child” includes “the child” of an insured individual. Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027 (2012). A claimant may show she is “the child” of a disabled insured individual, within the meaning of section 216(e)(1), by meeting the requirements in section 216(h)(2)(A) of the Act. See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled at the time of the claimant’s application for CIB. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3); Program Operations Manual System (POMS) GN 00306.001C.2.a.; Capato, 132 S. Ct. at 2028; Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989).

NH indicated she lived in Florida when she applied for CIB on Claimant’s behalf. Therefore, we look to Florida intestacy law to determine whether Claimant is NH’s child for CIB purposes. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(3). Under Florida law, intestate property passes to a decedent’s heirs as prescribed by the Florida Probate Code.^[2] See Fla. Stat. Ann. § 732.101(1) (West 2015). Heirs include the decedent’s children. See Fla. Stat. Ann. § 732.103(1) (West 2015) (noting that, after a spouse’s share, a decedent’s intestate property goes to “descendants”); Fla. Stat. Ann. § 731.201(9) (West 2015) (defining “descendant” to include children).

NH’s marriage to M1~ indicates Claimant is NH’s child for CIB purposes. NH and M1~ produced a marriage certificate from O~, Canada, indicating they were married in May 2008. Our office has previously concluded that such a marriage is valid under Florida law. See POMS PR 05825.011, PR 15-131 (Feb. 17, 2015). We have no evidence indicating the marriage was not in effect at the time of Claimant’s birth. A child’s birth in wedlock creates a strong presumption of parentage under Florida law. See Eldridge v. Eldridge, 16 So. 2d 163, 163-64 (Fla. 1944); POMS GN 00306.455.6.a; see also POMS PR 01010.11, PR 06-174 (Jun. 2006). The presumption applies even where there is no biological relationship between the parent and child. See e.g., Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 308 (Fla. 1993).^[3] There is no indication that M~ or anyone else has challenged the relationship between NH and Claimant.

Furthermore, Florida statutes provide that the donors to the artificial insemination, except for the “commissioning” couple, relinquish parental rights to the child conceived absent certain circumstances not applicable here. See Fla. Stat. Ann. § 742.14 (West 2015). This statute cannot be read or applied in a manner that would extinguish NH’s rights based on her same-sex marriage. See D.M.T. v. T.M.H., 129 So. 3d 320, 340 (Fla. 2013) (striking down an interpretation of this statute that was unconstitutional as applied to a same-sex couple), reh’g denied (Dec. 12, 2013); see also Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015). Thus, the only other party who could foreseeably contest the relationship between NH and Claimant – the sperm donor – is barred from challenging that relationship. Moreover, the sperm donor relinquished his paternity rights in a “final and irrevocable” agreement under Fla. Stat. § 742.14 and agreed not to attempt to form a parent-child relationship with Claimant. Thus, the evidence provided does not indicate there is any rebuttal to the presumption that Claimant is NH’s child for CIB purposes.^[4]

CONCLUSION

Claimant is NH’s child for determining Claimant’s entitlement to CIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Jeffrey S. Wilson

Assistant Regional Counsel