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.
The claimant is the number holder’s child for determining the claimant’s entitlement
to CIB on the number holder’s earnings record.
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.
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). “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. 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). 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.
Claimant is NH’s child for determining Claimant’s entitlement to CIB on NH’s earnings
Mary Ann Sloan
Regional Chief Counsel
By: Jeffrey S. Wilson
Assistant Regional Counsel