TN 20 (07-17)

PR 00905.039 Ohio

A. PR 17-103 Auxiliary Child’s Benefits: Establishing Parent and Child Relationship Under Ohio Law Based on a Canadian Same-Sex Marriage Between the Number Holder and the Child’s Biological Mother

Date: June 22, 2017

1. Syllabus

The number holder (NH) and the claimant’s biological mother entered into a same-sex marriage in Ontario, Canada. At the time of their marriage, same-sex marriages were valid and recognized in Ontario, Canada. The child, who was conceived via donor insemination in Ohio with the NH’s consent, was born in Ohio.

The NH was domiciled in Ohio at the time the claimant’s application for child’s insurance benefits was filed. Accordingly, the agency looks to Ohio intestacy law to determine whether the NH is the claimant’s parent. Ohio must recognize the validity of the Canadian same-sex marriage. Because the claimant was born during the valid marriage of her biological mother to the NH, Ohio law presumes that the claimant is the NH’s child, with the right to inherit intestate from the NH. This presumption may only be rebutted by clear and convincing evidence, including the results of genetic testing. However, the presumption is conclusive if Ohio Revised Code section 3111.95(A) applies. Ohio Revised Code section 3111.95(A) provides that, where the mother conceives the child through non-spousal artificial insemination and the spouse consents to the artificial insemination, the spouse is conclusively presumed to be the parent of the child. Here, the claimant’s mother conceived her through non-spousal artificial insemination, and the NH consented to the artificial insemination. Therefore, Ohio law conclusively presumes that the claimant is the NH’s child. Under Ohio intestacy law, the claimant may inherit intestate from the number holder (NH) as her child because the claimant was born during her biological mother’s marriage to the NH, and because the claimant was conceived through non-spousal artificial insemination with the NH’s consent. Accordingly, the claimant is the child of the NH for purposes of entitlement to child’s insurance benefits on the NH’s account. 

2. Opinion

QUESTION

You asked whether there is a parent-child relationship between the number holder (NH), C~, and A~ (Claimant) for purposes of determining Claimant’s entitlement to Title II child’s insurance benefits on the NH’s account, where Claimant was born during her biological mother’s same-sex marriage to the NH.

ANSWER

Yes. Under Ohio intestacy law, Claimant may inherit intestate from the NH as her child. Thus, we can conclude that you may find Claimant is the NH’s child for purposes of entitlement to child’s insurance benefits under the Social Security Act.

FACTS

On June XX, 2005, the NH and Claimant’s biological mother, M~, entered into a same-sex marriage in Ontario, Canada. The NH provided a copy of their marriage certificate issued in Ontario, Canada.

According to a declaration completed by the NH, Claimant was conceived via donor insemination at the University Hospital of Cleveland in 2007. Per the declaration, the NH was fully aware of and consented to the procedure.1

On January XX, 2008, Claimant was born in Ohio. Claimant’s birth certificate lists M~ as her biological mother. Claimant’s birth certificate does not list a father or second parent.

The NH began receiving disability insurance benefits in July 2013. The NH has filed an application on behalf of Claimant for child’s insurance benefits under the NH’s Social Security record. The NH currently resides in L~, Ohio, with M~ and Claimant.

ANALYSIS

Under the Social Security Act (Act), every unmarried minor child of an individual entitled to old-age or disability insurance benefits shall be entitled to child’s insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). As relevant here, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time she filed her application for child’s insurance benefits. See id.; 20 C.F.R. §§ 404.350, 404.355. In determining whether an applicant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of application. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her. . . .”).

Here, the NH was domiciled in Ohio at the time Claimant’s application for child’s insurance benefits was filed. Accordingly, the agency looks to Ohio intestacy law to determine whether the NH is Claimant’s parent. Under Ohio law, a child may inherit intestate from his or her parent. See Ohio Rev. Code Ann. § 2105.06 (statute of intestate descent and distribution). Thus, if Claimant is the child of the NH under Ohio law, she would be able to inherit from the NH and would therefore be a “child” under 42 U.S.C. § 416(h)(2)(A).

Ohio Revised Code section 3111.03 sets forth three presumptions for establishing that an individual is the natural father of a child. See Ohio Rev. Code. Ann. § 3111.03(A). These presumptions apply equally in determining the existence or non-existence of a mother and child relationship. See Ohio Rev. Code Ann. § 3111.17 (“[i]nsofar as practicable, the provisions of sections 3111.01 to 3111.18 of the Revised Code that are applicable to the father and child relationship shall apply to an action brought under this section” to determine the existence or non-existence of a mother and child relationship); S.N. v. M.B., 188 Ohio App. 3d 324, 332 (Ohio Ct. App. 2010) (it is appropriate to look at presumptions under § 3111.03 pertaining to establishment of a father and child relationship when determining the existence of a mother and child relationship). One of the three presumptions applies in this case. Specifically, pursuant to Ohio Revised Code section 3111.03(A)(1), a man is presumed to be the natural father of a child if the man and the child’s biological mother are married to each other, and the child is born during the marriage or is born within 300 days after termination of the marriage.

Claimant’s biological mother and the NH were married in Ontario, Canada on June XX, 2005. The NH provided proof of the foreign ceremonial same-sex marriage. At the time of their marriage, same-sex marriages were valid and recognized in Ontario, Canada. See Program Operations Manual System (POMS) GN 00210.006.D (Ontario, Canada permitted same-sex marriages on June 10, 2003). Therefore, under POMS GN 00210.006.B, the agency will recognize the marriage as of the date it was established. Further, Ohio must also recognize the validity of the Canadian same-sex marriage. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015) (“there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character”).

Because Claimant was born during the valid marriage of her biological mother to the NH, Ohio law presumes that Claimant is the NH’s child, with the right to inherit intestate from the NH. See Ohio Rev. Code Ann. §§ 2105.06, 3111.03(A)(1). This presumption may only be rebutted by clear and convincing evidence, including the results of genetic testing. See Ohio Rev. Code Ann. § 3111.03(B). However, the presumption is conclusive if Ohio Revised Code section 3111.95(A) applies. Ohio Revised Code section 3111.95(A) provides that, where the mother conceives the child through non-spousal artificial insemination and the spouse consents to the artificial insemination, the spouse is conclusively presumed to be the parent of the child. See id. §§ 3111.03(B), 3111.95(A). Here, Claimant’s mother conceived her through non-spousal artificial insemination in 2007, and the NH consented to the artificial insemination. Therefore, Ohio law conclusively presumes that Claimant is the NH’s child.

Accordingly, we conclude that you may reasonably find Claimant is the child of the NH under section 216(h)(2)(A) of the Act, for purposes of entitlement to child’s insurance benefits on the NH’s record.

CONCLUSION

Under Ohio law, Claimant may inherit intestate from the NH as her child because Claimant was born during her biological mother’s marriage to the NH, and because the Claimant was conceived through non-spousal artificial insemination with the NH’s consent. Accordingly, Claimant is the child of the NH for purposes of entitlement to child’s insurance benefits on the NH’s account.

Kathryn Caldwell

Regional Chief Counsel, Region V

By: Francesco P. Benavides

Assistant Regional Counsel


Footnotes:

[1]

. The NH and Claimant’s mother were unable to produce any other documentation of the artificial insemination.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1500905039
PR 00905.039 - Ohio - 07/10/2017
Batch run: 07/10/2017
Rev:07/10/2017