TN 46 (07-16)

PR 01005.018 Iowa

A. PR 16-117 Status of Child Conceived through In Vitro Fertilization after Number Holder’s Death in Iowa

DATE: April 15, 2016

1. SYLLABUS:

The number holder (NH) was domiciled in Iowa at the time of his death. Therefore, we apply Iowa’s intestacy laws to determine if the claimant would qualify as the NH’s child under Iowa law. Under Iowa’s intestacy laws, a child conceived after the intestate’s death or born as the result of the implantation of an embryo after the intestate’s death, is deemed the intestate’s child as if the child had been born during his lifetime, if a genetic parent-child relationship between the child and the intestate is established; the intestate, in a signed writing, authorized the intestate’s spouse to use the deceased parent’s genetic material to initiate the posthumous procedure that resulted in the child’s birth; and the child is born within two years of the death of the intestate. The claimant would not be deemed the NH’s child under Iowa intestacy law because he was not born within two years of the NH’s death, nor did the NH authorize, in a signed writing, the use of his genetic material to initiate the procedure that resulted in the claimant’s birth. The claimant would not qualify as the NH’s natural child under Iowa intestacy laws and does not meet the requirements for entitlement under section 216(h)(2)(A) the Act.

2. OPINION

You asked for advice as to whether N~ is entitled to surviving child’s insurance benefits on the record of B~, the Number Holder (NH). N~ was conceived through in vitro fertilization (IVF) after the death of the NH. For the reasons discussed below, we believe that N~ does not meet the requirements for entitlement under section 216(h)(2)(A) of the Social Security Act (the Act).

Factual Background

The information you provided shows that the NH married B2~ (B2~) on August XX, 2009. The couple learned that the NH would be deployed to Afghanistan and met with C~, D.O., to discuss cryopreservation of his sperm. Dr. C~ stated that the NH was interested in cryopreservation so that “B2~ could conceive his child should he not return alive.” Dr. C~ referred the couple to another doctor and the NH’s sperm was cryopreserved on July XX, 2010.

On April XX, 2011, the NH died while serving with the United States Army National Guard in Afghanistan. The NH was an Iowa resident at the time of his death.

Approximately two years later, on July XX, 2013, B2~ underwent an IVF1 procedure. That procedure was successful and B2~ gave birth to N~ on April XX, 2014. The NH’s name was not initially listed on N~’s birth certificate.

On October XX, 2014, B2~ filed petitions in the Iowa District Court for P~ County to reopen the NH’s estate and establish paternity. In the petitions, B2~ informed the court that the NH “cryogenically preserved his genetic material and agreed it could be used by [B2~] . . . in the event that [he] did not safely return from his service.” She also informed the court that she was “artificially inseminated”2 with the NH’s genetic material, resulting in N2~’s birth. The NH’s mother, as the executor of the estate, stipulated to the petitions.

On December XX, 2014, the district court granted B2~’s petitions and found that the NH is N~’s “paternal father.” The NH was subsequently listed as N~’s father on his birth certificate.

On April XX, 2015, B2~ filed an application, on behalf of N~, for surviving child’s insurance benefits on the NH’s record. In connection with the application, B2~ submitted N~’s birth certificate; the DNA test report; the district court petitions and orders; the NH’s casualty report; medical records related to the cryopreservation and IVF procedures; a letter from Dr. C~; an email from M~, the Survivor Outreach Support Coordinator for the Iowa National Guard; and a Department of Defense letter regarding the NH’s genetic sample.3

Analysis

The Act provides that the child of an insured individual who dies fully or currently insured is entitled to benefits if he has applied for benefits, is unmarried and under 18, and was dependent on the insured individual at the time his application was filed. See Act § 202(d); 20 C.F.R. § 404.350. To qualify as the child of an insured individual, the child must be the natural child, legally adopted child, stepchild, grandchild or stepgrandchild, or equitably adopted child of the insured individual. See 20 C.F.R. §§ 404.350(a), 404.355-404.359.

In this case, there is no evidence to suggest that N~ is the legally adopted child, stepchild, or equitably adopted child of the NH. Therefore, the relevant inquiry is whether N~ qualifies as the NH’s natural child under the Act.

An applicant can qualify as the natural child of an insured individual if the child could inherit the individual’s personal property as his child under the intestacy laws (i.e., the laws that apply when the decedent has no will) of the state in which the individual was domiciled at the time of his death.4 See Act §§ 216(e)(1), 216(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If the applicant qualifies as the insured individual’s child, he is deemed dependent upon the individual for purposes of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a).

The NH was domiciled in Iowa at the time of his death. Therefore, we apply Iowa’s intestacy laws to determine if N~ would qualify as the NH’s child under Iowa law.

See Act § 216(h)(2)(A); 20 C.F.R. § 404.355.

Although an Iowa court held that the NH is N~’s father, we do not believe the court’s decision is consistent with, or meets the requirements for establishing paternity under Iowa’s intestacy laws. Iowa Code Ann. § 633.220A specifically outlines the standard for establishing inheritance rights for children conceived and born after an intestate’s death. This section states, in relevant part, that a child conceived after the intestate’s death or born as the result of the implantation of an embryo after the intestate’s death, is deemed the intestate’s child as if the child had been born during his lifetime, if:

  1. a genetic parent-child relationship between the child and the intestate is established;

  2. the intestate, in a signed writing, authorized the intestate’s spouse to use the deceased’s parents genetic material to initiate the posthumous procedure that resulted in the child’s birth; and

  3. the child is born within two years of the death of the intestate.

See Iowa Code Ann. § 633.220A.

All three elements listed in section 633.220A must be met to establish inheritance rights for a posthumously conceived child. Based on the facts presented, it is our opinion that N~ would not be deemed the NH’s child under Iowa intestacy law. Although a genetic parent-child relationship exists between the NH and N~, the other two elements of the statute are not met. N~ was not born within two years of the NH’s death, nor did the NH authorize B2~, in a signed writing, to use his genetic material to initiate the procedure that resulted in N~’s birth. Because the court’s order is not consistent with state law, we do not believe the agency is bound by the court’s paternity determination.

Pursuant to Social Security Ruling (SSR) 83-37c, which adopts the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the agency is bound by a state court decision when four prerequisites are met: (1) an issue in a claim for Social Security benefits has been determined by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. In the current matter, it is our opinion that the court order does not satisfy these prerequisites. Although a court of competent jurisdiction determined the issue of paternity and that issue falls within the general category of domestic relations law, the other two requirements have not been satisfied.

First, the paternity issue was not genuinely contested by parties with opposing interests. To the contrary, all parties to the district court proceeding stipulated to the petitions. Because the relevant issues were not rendered in a contested proceeding, the agency is not bound by the state court's findings. See Gray, 474 F.2d at 1373.

Additionally, although Iowa’s highest court has yet to interpret section 633.220A, we do not believe the district court's resolution is consistent with Iowa law. The court order establishing the NH’s paternity is only two sentences long and does not outline its reasoning or reference Iowa’s intestacy statutes. As discussed above, the court’s decision is also inconsistent with Iowa law requiring not only a genetic parent-child relationship, but also the birth of the child within two years and the intestate’s signed consent to use his genetic materials after his death. As the state court order does not meet all the requirements outlined under SSR 83-37c, the order is not conclusive of paternity and the agency is not bound by the court’s decision.

CONCLUSION

Based on the available evidence, and for the reasons outlined above, it is our opinion that N~ would not qualify as the NH’s natural child under Iowa intestacy laws and does not meet the requirements for entitlement under section 216(h)(2)(A) the Act.

Kristi A. Schmidt

Chief Counsel, Region VII

By: Rhonda J. Wheeler

Deputy Regional Chief Counsel for

Kristin Bunnell

Assistant Regional Counsel


Footnotes:

[1]

. The initial request for a legal opinion indicated that B2~ conceived through artificial insemination. This appears to be a mistake as the medical records indicate that B2~ became pregnant after a “frozen embryo transfer.”

[2]

. As noted previously, this appears to be an error. The medical records show that N~ was born as a result of IVF, not artificial insemination.

[3]

. Many of these documents were obtained upon further request and were received by OGC on August XX 2015. On September XX, 2015, the field office confirmed that B2~ attested under penalty of perjury that she had not remarried after the NH’s death.

[4]

. An applicant can also qualify as an individual’s child if she can show that (1) the insured, prior to his death, had acknowledged in writing the child as his child, been decreed by a court to be the parent, or been ordered by a court to contribute to the support of the child; or (2) the individual was her parent and was living with or contributing to her support at the time of the his death. See Act §§ 216(h)(3). Since the NH died before N~ was born, he could not have performed these acts during his lifetime. Therefore, N~ does not meet these requirements.


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http://policy.ssa.gov/poms.nsf/lnx/1501005018
PR 01005.018 - Iowa - 07/11/2016
Batch run: 07/11/2016
Rev:07/11/2016