TN 21 (09-17)

PR 00905.052 Virginia

A. PR 17-122 Parent-Child Relationship - Same-Sex Marriage

Date: May 12, 2017

1. Syllabus

The number holder (NH) is domiciled in Virginia; therefore, we apply Virginia intestacy law to determine whether the claimant is NH’s child. The Virginia law provides that a child can inherit from a parent through intestate succession. According to the Virginia law, in the case of assisted conception, a same-sex spouse of the child’s gestational mother is the child’s parent, regardless of the use of the terms husband and father. We believe that the Virginia courts will likely find, in the case of assisted conception, the existence of a parent-child relationship between the child and the same-sex spouse of the child’s gestational mother.

In conclusion, we believe that the Virginia courts will likely find that a parent-child relationship was established under Virginia law to allow the claimant to inherit as the NH’s child under the Virginia intestacy statutes. Thus, we believe a parent-child relationship exists between the claimant and the NH for purposes of Title II of the Act.

2.  Opinion

QUESTIONS PRESENTED

You asked us to determine whether a parent-child relationship was established under Virginia law between the Number Holder (NH), M~, and M2~, the claimant, the biological child of the NH’s same-sex spouse, V~ (V~) for purposes of determining the claimant’s entitlement to child’s insurance benefits (CIB) under Title II of the Social Security Act (Act).

SHORT ANSWER

We believe that the Virginia courts will likely find that a parent-child relationship was established under Virginia law to allow the claimant to inherit as the NH’s child under Virginia’s intestacy statutes. Thus, we believe a parent-child relationship likely exists for purposes of Title II of the Act.

BACKGROUND

The NH began receiving disability benefits in July 1996. The NH and her spouse, V~, were married on February XX, 2005, in Massachusetts, which has recognized same-sex marriages since 2004.1 Nearly six years after the couple married, on January XX, 2011, V~ gave birth to the claimant in Virginia.2 The claimant is not the biological, adopted, or step-child of the NH. The claimant’s birth certificate issued on June XX, 2015, lists V~ as the claimant’s “mother” and the NH as the claimant’s “father.”

DISCUSSION

The Act and Regulations

A claimant may be entitled to CIB under section 202(d)(1) of the Act, if he or she (1) is the “child” of an insured individual NH, as defined in section 216(e) of the Act, and (2) was dependent on the insured individual at the time the application was filed. See Act §202(d)(1)(C)(i). In determining whether a claimant qualifies as the child of the NH, the Commissioner applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application.”3 See Act §216(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”); Social Security Ruling 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life ...”). Since the NH is domiciled in Virginia, we apply Virginia intestacy law to determine whether the claimant is NH’s child for the purposes of the Act.

State and Federal Law

The Virginia Code provides that a child can inherit from a parent through intestate succession. Va. Code Ann. § 64.2–200 (West 2017). In terms of the parent-child relationship, the Virginia Code provides that “[t]he parentage of a child resulting from assisted conception is determined as provided in Chapter 9 (§ 20-156 et seq) of Title 20.” Va. Code Ann. § 64.2-102 (West 2017). Pursuant to Chapter 9 (§ 20-156 et seq) of Title 20, in cases of assisted conception, parentage is established as follows: 1) the gestational mother of a child is the child’s mother; 2) the husband of the gestational mother is the child’s father; and 3) a donor is not the parent of the child, unless that donor is the husband of the gestational mother. Va. Code Ann. § 20-158 (West 2017).

No Court has interpreted Chapter 9 (§ 20-156 et seq) of Title 20 in the context of a same-sex marriage. That said, case law and state agency determinations shed light on how Virginia courts would likely interpret such provisions.

On February 13, 2014, the United States District Court for the Eastern District of Virginia,

Norfolk Division ruled that Virginia’s laws defining marriage as between one man and one woman and prohibiting recognition of a union between two people of the same sex were unconstitutional. Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014), amended and superseded by 2014 WL 10022686, aff’d sub nom Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, 190 L. Ed. 2d 140 (2014). Specifically, the Court held that “[t]hese laws deny [same-sex couples] their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution.” Id. at 484.

The Fourth Circuit affirmed the District Court’s judgment on July 28, 2014. Schaefer, 760 F.3d at 384. On October 6, 2014, the United States Supreme Court denied the three outstanding petitions for writ of certiorari as to the Fourth Circuit’s affirmance. Rainey v. Bostic, 190 L. Ed. 2d 140 (2014); Schaefer v. Bostic, 190 L. Ed. 2d 140 (2014); McQuigg v. Bostic, 190 L. Ed. 2d 140 (2014).

Subsequent to the decision in Bostic, the Fairfax County Clerk of Court asked the Virginia Attorney General to provide an advisory opinion as to whether Bostic altered the term “husband and wife” as used for purposes of the recordation of a tax exemption as set forth by the Virginia Code. 2014 WL 7407210, at *1 (Va. A.G. Dec. 18, 2014). On December 18, 2014, the Virginia Attorney General found that it did and further stated:

I note that, while your request addresses only one specific occurrence of “husband and wife”, the term, along with “man and wife,” “wife,” and “husband” appears in the Code of Virginia no fewer than 61 times, applying to subjects ranging from insurance contracts, to joint ownership of property, and to adoption. See, respectively, Va. Code Ann.

§§ 38.2-302 (2014), 55-20.2 (2012), 63.2-1215 (2012). The guarantees of equal protection and due process apply equally to these provisions, and they must be applied equally to all legal marriages. As Bostic v. Rainey makes clear, the Constitution of the United States requires no less.

2014 WL 7407210, at *3, n 14 (Va. A.G. Dec. 18, 2014). Neither the Virginia Attorney General’s opinion, nor its content has been interpreted by a Court, but the opinion can be fairly read to state that Chapter 9 (§ 20-156 et seq) post-Bostic likely means that in the case of a same-sex marriage involving assisted conception that the same-sex spouse of the child’s gestational mother is the child’s parent.

The following month, on January 22, 2015, the Commonwealth of Virginia Department of Health, Division of Vital Records, through the Director and State Registrar, wrote a letter to hospital administrators stating that based on Bostic where a child is conceived by assisted conception and there are two female spouses in a legal marriage, both spouses can be listed on their child’s birth certificate.4 This letter is notable because the Virginia Code states that “[f]or the purpose of birth registration in the case of a child resulting from assisted conception, pursuant to Chapter 9 (§ 20-156 et seq.) of Title 20, the birth certificate of such child shall contain full information concerning the mother’s husband as the father of the child and the gestational mother as the mother of the child.” Va. Code Ann. § 32.1-257 (West 2017). In other words, the Virginia Department of Health interpreted the Virginia Code post-Bostic to stand for the proposition that in the case of assisted conception, a same-sex spouse of the child’s gestational mother is the child’s parent, regardless of the use of the terms “husband” and “father” in Chapter 9 (§ 20-156 et seq.) of Title 20 of the Virginia code

In sum, while no Court has interpreted Chapter 9 (§ 20-156 et seq) of Title 20 in the context of a same-sex marriage, the federal courts’ determination in Bostic, the Virginia Attorney General’s Opinion in December 2014, and the Virginia Department of Health’s letter to hospital administrators in January 2015, appear to indicate that the Virginia courts will likely find— in the case of assisted conception—the existence of a parent-child relationship between the child and the same-sex spouse of the child’s gestational mother.

CONCLUSION

In conclusion, we believe that the Virginia courts will likely find that a parent-child relationship was established under Virginia law to allow the claimant to inherit as the NH’s child under the Virginia intestacy statutes. Thus, we believe a parent-child relationship exists between the claimant and the NH for purposes of Title II of the Act.

Sincerely,

Nora Koch

Acting Regional Chief Counsel

By: Stuart Weiss

Assistant Regional Counsel


Footnotes:

[1]

. Same-sex marriages became valid in Massachusetts on May 17, 2004. Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003). Thereafter, Massachusetts began enforcing laws from 1913 to prevent same-sex out-of state couples from marrying if the marriage would be invalid in the state where the couple lived. Mass. Gen. Laws ch. 207, §§ 11-13 (1913);

Cote-Whitacre v. Dep’t of Pub. Health, 446 Mass. 350 (2006). At the time, NH and V~ were married, Virginia did not recognize out of state same-sex marriages. See Va. Code Ann.

§ 20–45.2 (West 2017). On July 31, 2008, the “1913 law” was repealed. Mass. Gen. Laws ch. 207, §§ 11-13 (West 2017). As discussed in more detail later herein, Virginia’s laws banning same-sex marriage were found unconstitutional in 2014 in the Bostic case. In addition, on

June 26, 2015, the U.S. Supreme Court held that “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.” See Obergefell v. Hodges, 135 S. Ct. 2584, 2607-08 (2015). Here, despite the 1913 law, the NH and V~ were able to marry in Massachusetts in 2005. In addition, on

July XX, 2015, the Commonwealth of Virginia issued a birth certificate listing the NH as the claimant’s “father” and V~ as the claimant’s “mother,” implicitly recognizing the marriage at issue in this opinion is valid in Virginia. See Footnote 4 herein. Accordingly, we believe that a Virginia Court would likely find that the marriage between the NH and V~ is valid for relevant purposes.

[2]

. For reasons stated in Footnote 4 of this memorandum, we have assumed that the claimant was conceived through assisted conception.

[3]

. In this case, we evaluated whether the claimant would be considered the natural child of the NH under 20 C.F.R. § 404.355 because the facts of the case failed to support any of the alternative child classifications. The claimant was not legally adopted by the NH. 20 C.F.R. § 404.356. The claimant also fails to satisfy the definition of stepchild under our rules because she was both conceived and born during the couple’s marriage. 20 C.F.R. § 404.357. Lastly, the NH is not the claimant’s grandmother. 20 C.F.R. § 404.358.

[4]

. A copy of such a letter can be found at http://acluva.org/wp-content/uploads/2015/02/RaineyLettertoHospitals20150122.pdf (last accessed May 10, 2017). Subsequent to th