You have requested our opinion as to whether Telisha B~ may collect benefits from
the account of Joseph B~ as his natural legitimate child under Ohio Law. Although
we conclude that it is legally supportable to grant benefits in this case, you may
wish to further develop facts which are not currently in the file.
Virginia S~ and Joseph B~ were married at the time of his death as a result of a car
accident in Ohio on June 12, 1980. Telisha B~ was born 317 days later on April 25,
1981 at Dittmer Hospital, Miami County, Ohio. The birth certificate lists Joseph and
Virginia B~ as Telisha's parents.
Virginia S~ saw her physician, Dr. Edward K~ , on June 27, 1980, and was diagnosed
as pregnant on August 6, 1980. She stated that her last menstrual period was June
25, 1980. Her expected due date was April 2, 1981. Dr. K~ performed no tests to determine
how long she was pregnant during the August, 1980 visit.
The hospital records indicate that Teltsha weighed 4,026 grams at birth (approximately
9.4 pounds) and was a post mature baby with a 43 week gestation period (301 days).
Ohio Law favors legitimacy and "will indulge in all presumption" to make a child legitimate.
Dirion v. Brewer, 151 N.E. 818,20 Ohio App. 298 (1925). A child conceived during wedlock under Ohio
Law is presumed to be the child of his mother's husband, but the presumption may be
rebutted by clear and convincing evidence that the husband could not be the father
of the child. Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); Rose v. Rose, 242 N.E.2d 677, 16 Ohio App. 2d 123 (1968). Ohio recently amended its statute to
adopt parts of the Uniform Parentage Act.  Section 3111.03 of the Ohio Revised Code states that the presumption that a married
father is the natural parent of a child born to his wife applies to a birth within
300 days of his death. There is no explanation of the reason 300 days was chosen or
the effect of a birth which occurred after 300 days.
Prior Ohio decisional law reviewed the possible gestation period and determined that
a presumption of legitimacy should apply for births between 220 and 330 days from
conception. See Rose v. Rose, supra; State ex tel Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944), Similarly, in SSR' 73-28' the Social Security
Administration adopted a New Jersey decision which presumed the legitimacy of a child
born 327 days after the purported father's death. The court stated that "a pregnancy
of 327 days is well within the limits of medical possibility as recognized by the
courts" and further noted there "are references to protracted pregnancies of up to
334 days duration." The court found the presumption of legitimacy was not rebutted
where the husband and wife lived together until death and there was no evidence of
extramarital activity by the wife.
The presumption of legitimacy has been rebutted where the purported father was sterile,
in prison during the period of conception, shown not to have had sexual relations
with his wife during the period of conception or where blood tests excluded paternity.
See for example, Social Security Ruling 73-52C and 81-10C.
While the fact that the child was born 317 days after the wage earner's death does
not as a matter of law rule out the possibility that the child is the wage earner's
daughter, it obviously raises some doubt as to whether the wage earner is the child's
father. The medical records showing that the baby was large and post mature suggest
the child is legitimate. The birth certificate listing the purported father as the
child's natural father is probative evidence of legitimacy. Virginia S~ 's full release
of all records for development and examination by the Social Security Administration
further indicates her belief in the legitimacy of the child.
On the other hand, Ms. S~ 's statement that her last menstrual period occurred at
the end of June, 1980 is probative although inconclusive evidence that the wage earner
is not the father. Uterine bleeding that simulates menstruation is occasionally noted
after conception. See Williams, Obstetrics, (13th Edition), 1966, p. 267. Ms. S~'s failure to apply for benefits
for several years after her child's birth is further evidence that she may not have
believed she was entitled to them.
We believe the documentation in the file falls somewhat short of clear and convincing
evidence which would overturn a strong presumption of legitimacy. Thus, it is legally supportable to grant benefits to Telisha B~ .
However, you may wish to develop additional evidence which may lead to more conclusive
evidence of the legitimacy or illegitimacy of Telisha B~ . There is no evidence concerning
the wage earner's sexual access to his wife prior to his death. You may wish to develop
additional evidence from relatives, friends, neighbors or employers concerning whether
the couple lived together until Joseph B~'s death. You may also wish to order genetic
tests (e.g. blood, immunological, biochemical) pursuant to RC 3111.09 of the Ohio
The claims folder is returned herewith.
"Ordinary Coverage - Presumption of Legitimacy, Ohio." RA V (K~) to Regional Representative,
SSA, December 28, 1973 (where there is strong medical evidence indicative of an unusually
long gestation period, the presumption of legitimacy would be applicable even where
the child is born 290 days after the mother's divorce from the decedent, the alleged
father, and 316 days after the last reported date of access of the decedent to the
mother of the child);
"Ordinary Coverage - Period of Gestation Exceeding 287 Days - Ohio - James C. C~ A/N
~ "RA V (P~) to BRSI, January 5, 1973 (fact that gestation period approaches "outer
limits of possibilities for a normal child" does not, of itself, overcome presumption