You asked whether a child conceived by artificial insemination qualifies for child's
insurance benefits as the child of the semen donor or the mother's husband at the
time of conception and birth.
On January 19, 2006, L~, a.k.a. L~ (the claimant's mother) filed an application for
child's insurance benefits (life claim) on behalf of J~ (the claimant) on the account
of B~ (the alleged biological father), her husband from a prior marriage. See January 19, 2006 application. You indicated that the biological father was domiciled
in the State of California at the time the application was filed. The application
was granted with payments retroactive to September 2005. See Notice of Award.
The claimant's mother, however, was married to another man, R~ , at the time of the
claimant's conception and birth. See Worksheet Remarks. She had not provided medical evidence that the presumed father
was sterile. See id. Thus, on November 22, 2005, the claim on the biological father's account was disallowed
on reconsideration. See id.
On June 26, 2006, L~ filed a new application (life claim) on J~'s behalf on the account
of the presumed father, R~ . See Development Worksheet dated June 26, 2006. You indicated that the presumed father
was domiciled in the State of Pennsylvania at the time the application was filed.
We consolidated the review of the claimant's successive applications in this opinion.
The following is a summary of the evidence presented in support of these applications.
SUMMARY OF EVIDENCE
L~ married R~ in Placerville, California. See marriage certificate. They divorced on July 1, 2003 in the State of Nevada. See Decree of Divorce (filed July 1, 2003). Starting in 1991, L~ underwent a course of
artificial insemination in a California clinic "due to her husband's history of vasectomy."
Report by L.V. , M.D., dated February 25, 1994; see also April 27, 2006 letter from Emerald Bay Center for Women's Health.
The record suggests that R~ was aware of, and consented to the artificial insemination
of his wife. There is no written record of his consent because the clinic's policy
did not require a husband's consent. See Report of Contact with Practice Manager at Emerald Bay Center for Women's Health on
July 6, 2006. There is nonetheless a later record indicating that L~ was accompanied
by R~ for a pregnancy care visit. See July 21, 1995 treatment notes.
In addition, L~ stated that R~ and the biological father agreed to her artificial
insemination with the latter's semen. See Report of Contact of Claimant's mother on October 7, 2005. According to L~, the artificial
insemination was performed not at the clinic, but at the family's home. See Report of Contact of Claimant's mother on October 7, 2005. R~ and L~ lived together
at the time. See their declarations of March 14 and 28, 2006. On October, L~ gave birth to J~ in California.
See Claimant's birth certificate. The birth certificate lists L~ as the mother and informant,
and R~ as the father. See id. According to L~, R~ raised J~ as his child during the marriage. See Report of Contact of Claimant's mother on October 7, 2005.
On July 1, 2003, a Nevada court entered a final decree of divorce incorporating the
parties' marital settlement agreement. See Property Settlement and Child Custody Agreement (Agreement) and Decree of Divorce
(filed July 1, 2003). In the Agreement, they acknowledge the existence of "one minor
child the issue of this marriage, to-wit: J~ , born October . . . ." Agreement. The
court ordered R~ to pay child support for J~ and granted legal custody of J~ to both
parents. See id. According to L~, however, R~ "now since they are no longer married refuses to pay
child support." See Report of Contact of Claimant's mother on October 7, 2005.
On or about January 11, 2006, L~, J~, R~, and B~ were genetically tested. See DNA Parentage Test Report dated January 11, 2006. The results established a 99.99+
percent probability that B~ is J~'s biological father. See id. On January 19, 2006, Bruce acknowledged that he is the biological father based on
that evidence. See Child Relationship Statement – B~ . He explained, however, that he did not otherwise
acknowledge, provide for, or hold out the child as his own. See id.
In a February 2, 2006 declaration, R~ indicated that he was sterilized in approximately
1972, and that B~ is J~'s biological father. See R~'s declaration (February 2, 2006). In a March 28, 2006 declaration, R~ stated that
he was unable to provide medical records of his vasectomy. See R~ declaration (March 28, 2006).
A. Federal Law
We determine a claimant's eligibility for child insurance benefits under section 202(d)(1)
of the Social Security Act by determining whether he is the "child" of an insured
individual as defined in section 216(e) and was dependent on the insured under section
202(d)(3). See Social Security Act § 202(d)(1); 20 C.F.R. § 404.350 (2006). In cases where parentage
is in dispute or the child is illegitimate, section 216(h) remains the appropriate
analytical framework for determining "child" status under section 216(e). See Gillett-Netting v. Barnhart, 371 F.3d 593, 596-97 (9th Cir. 2004) (holding that parentage need not be established
under § 216(h) unless parentage is in dispute or the child is illegitimate); see also Acquiescence Ruling (AR) 05 1(9), 70 Fed. Reg. 55,656 (September 22, 2005).
Section 216(h)(2)(A) directs us to "apply such law as would be applied in determining
the devolution of intestate personal property by the courts of the State in which
such insured individual is domiciled . . . at the time the application was filed .
. . ." Social Security Act § 216(h)(2)(A). We would apply California law to the claimant's
January 19, 2006 application on the account of his alleged biological father who was
domiciled in California at that time. If we find that that application was properly
denied, we would apply Pennsylvania law to the claimant's June 26, 2006 application
on the account of his presumed father who was domiciled in Pennsylvania.
B. California Intestacy Laws and Claimant's Application on the Account of his Alleged
Biological Father, B~
Under California intestacy law, a child may inherit the intestate estate of his natural
parent. Cal. Prob. Code §§ 6401, 6402, 6450 (2006). A natural parent and child relationship
for purposes of intestate succession may be established based on a "presumed father"
status under the Uniform Parentage Act (Cal. Fam. Code § 7600, et seq.). Cal. Prob. Code § 6453. A man who was neither legally married nor attempted to
legally marry the mother of his child cannot, however, be a "presumed father" unless
he receives the child into his home and openly holds out the child as his natural
child. Cal. Fam. Code § 7611(d). Further, a "donor" who provided semen for use in
the artificial insemination of a woman other than his wife through a physician has
no valid paternity claim. See Cal. Fam. Code § 7613(b).
Here, even if Bruce's semen was used, he was only a "donor," and never attained "presumed
father" status. See id. Notwithstanding the fact that Bruce may have been L~'s husband by a prior marriage,
he was not married or attempted to marry her at any relevant time, and had no relationship
with the claimant. See Cal. Fam. Code § 7611. There is no indication that he attempted to create a relationship
with the claimant either before or after L~'s divorce from R~. See id.
As further consideration, California law would not recognize Bruce's biological paternity
since he had not taken the child into his home nor developed a parent-child relationship;
on the other hand, the claimant's longstanding father-child relationship with R~,
his presumed father militates against the existence of presumed or natural father
status with Bruce. For more than seven years after the child's birth, R~ assumed the
obligations and functions characteristic of a father-child relationship. See, e.g., Agreement; and Cal. Fam. Code § 7611(d) (presumed father status based on actual
parenting). The existence of a longstanding relationship provides the strongest policy
consideration for preserving R~'s status in this case. See Guardianship of C~, 148 Cal. App. 3d 81, 86 (1983) ("in the case of an older child the familial relationship
between the child and the man purporting to be the child's father is considerably
more palpable than the biological relationship of actual paternity") (internal quotes
and citation omitted). In addition, the claimant was born during R~ and L~'s marriage.
See Cal. Fam. Code § 7611(a) (husband presumed father of child born in wedlock).
That the presumed father R~ belatedly disclaimed paternity is of no consequence to
his status. As the California Supreme Court reasoned in a leading case:
[o)ne who consents to the production of a child cannot create a temporary relation
to be assumed and disclaimed at will, but the arrangement must be of such character
as to impose an obligation of supporting those for whose existence he is directly
People v. Sorenson, 68 Cal. 2d 280, 285 (1968). In S~, the California Supreme Court held the father criminally liable for unpaid child
support for a child who was not genetically related to him, when he consented to the
procreation of the child through artificial insemination of his wife by an anonymous
sperm donor. Based in part on the decision in S~ and other case law cited therein, we advised that a husband who had consented to artificial
insemination of his wife was the legal father of the child, even though the father
and mother separated before the child was born, and the biological father never had
any contact with the child. See POMS PR 01105.006.A, Claim for Child Insurance Benefits on account of wage earner, Joseph (September 24, 2003).
Here, the presumed father R~ took J~ into his home and raised him as his own for seven
years. Thus, even if R~ later chose to have his DNA tested to disclaim paternity,
such evidence would not be admissible because he consented to the claimant's conception
by artificial insemination and assumed the obligations of a father for seven years.
See Cal. Fam. Code § 7541(e).
Finally, the Nevada stipulated court order would be given full faith and credit by
courts and have the same effect as a paternity determination made in California. See Cal. Fam. Code § 5604. The order would be binding on the parties and their privies.
See Guardianship of C~ ., 148 Cal. App. 3d 81, 85 (1983). In addition, Cal. Fam. Code § 7630(a)(2) would require
that an action to declare the nonexistence of a presumed parent and child relationship
be "brought within a reasonable time." Cal. Fam. Code § 7630(a)(2). The statute reflects
the strong California public policies of maintaining established parent-child relationships
and ensuring the finality of paternity judgments, which go beyond the doctrines of
res judicata and collateral estoppel. See Guardianship of C~ ., 148 Cal. App. 3d at 85 (applying policy to preclude a challenge brought by grandparents
who were not parties to the action in which the parentage finding was made). There
is no likelihood that a court would entertain a challenge to the presumed father's
paternity of a child born, like the claimant, over 10 years ago. Finally, it is unlikely
that the claimant could show that his best interest requires disregarding a longstanding
As the foregoing analysis indicates, the court's determination appears to be fair
and correct under California law, and is not the result of a judgment by def A~. There is no reason why it should be disturbed by the Agency. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973) (Agency is not free to ignore the adjudication
of a state trial court in a contested proceedings where it is fair and consistent
with the law as enunciated by the highest court of the State); see also SSR 83-37c, http://www.socialsecurity.gov/OP_Home/rulings/oasi/09/SSR83-37-oasi-09.html (adopting that circuit court decision), and Memorandum from Regional Chief Counsel,
San Francisco, to Ass't Reg. Comm.-MOS, Richmond, Claim for Child's Insurance Benefits on Account of Wage Earner Michael (August 22, 2005) (reprinted in POMS PR 01215.006).
In light of the foregoing, we believe that the claimant's application for child's
insurance benefits on the account of Bruce was properly disallowed on reconsideration.
We thus turn to the claimant's application on the account of his presumed father in
light of Pennsylvania intestacy laws.
C. Pennsylvania Intestacy Laws and Claimant's Application on the Account of his Presumed
Pennsylvania law vests intestate inheritance rights in "the issue of the decedent."
20 Pa. C.S. § 2103 (2006). As to the determination of J~'s paternity, Pennsylvania
law relies on the same policy considerations as California. As indicated below, these
considerations lead us to conclude that R~ is the claimant's father.
Specifically, R~ is presumed to be the legitimate father of the claimant as a child
of the marriage. Miscovich v. Miscovich, 688 A.2d 726, 728-29 (Pa. Super. Ct. 1997). "Although the presumption is rebuttable,
one who attempts to overcome it bears a heavy burden." Id.
Even if the presumption could be successfully overcome, R~ would be estopped from
denying paternity because he consented to the artificial insemination, supported J~
as his own for more than seven years, agreed to do so in a marital settlement agreement,
and did not appeal the court's support order. See, e.g., McConnell v. Berkheimer, 781 A.2d 206, 211 (Pa. Super. Ct. 2001) (applying estoppel doctrine where, in particular,
father lived with the mother and the child for four months after the child's birth,
accepted the child as his own for over a year; and failed to timely appeal support
and contempt order); M~, 688 A.2d at 726 (denying husband's request for blood tests to disprove paternity
where husband had an established relationship with child that did not deteriorate
until after relationship with wife deteriorated, a familial relationship existed at
the time the child was born, and no evidence of nonaccess, sterility, or impotency
was offered); Commonwealth ex rel. Gonzalez v. Andreas, 369 A.2d 416, 418 (Pa. Super. Ct. 1976) (same where, for approximately three years,
parties lived together following the child's birth and father supported the child
as his own and never expressed any doubts about the child's parentage).
That the alleged biological father belatedly acknowledged paternity is of no consequence.
As previously indicated and as opposed to R~'s conduct, Bruce has not played any significant
role in the child life. As a result, he would be estopped from asserting paternity.
See Buccieri v. Campagna, 889 A.2d 1220, 1228 (Pa. Super. Ct. 2005) (finding that delay and inactivity for
eight years barred alleged biological father from asserting paternity where mother's
husband was involved in child parenting for three years).
Finally, the Nevada court's July 1, 2003 final order would be given full faith and
credit by Pennsylvania courts and have the same effect as a paternity determination
made in Pennsylvania. See Chrzanowski v. Chrzanowski, 472 A.2d 1128, 1131 (Pa. Super. Ct. 1984). Because R~ was afforded the opportunity
to litigate, he would be barred from relitigating the issue of his paternity that
was determined by a court of competent jurisdiction. See Ruth F. v. R~ B., 690 A.2d 1171, 1174-75 (Pa. Super. Ct. 1997) ("Principles of res judicata are also
applicable to determinations of paternity."). Again, the Agency is not free to disregard
the court order, which appears to be fair and correct.
In sum, we believe that the claimant's application for child's insurance benefits
on the account of R~ should be granted.