Whether the claimant, J~, is eligible for child’s insurance benefits on the account
of the number holder (NH), E~.
Yes, the claimant is eligible for child insurance benefits on the NH’s account because
he is the NH’s child under North Dakota law intestacy law.
The NH, E~, was approved for disability benefits as of August 2006. On May XX, 2013,
the NH entered into a same-sex marriage with L~ in the State of Iowa. The marriage
certificate provides that both parties combined their surnames after marriage. On
May XX, 2014, L~ gave birth to J~ in the State of Minnesota; a medical note indicates
that the child was conceived by artificial reproductive technology using donated sperm.
The birth certificate lists L~ and E~ as the parents of J~. On July XX, 2014, the
NH filed an application on her record for child’s insurance benefits for J~ with a
month of entitlement of June 2014. The NH has acknowledged that she is not the birth
parent of J~.
Under the Social Security Act (Act), every unmarried minor child of an insured individual
is entitled to child’s insurance benefits. Act § 202(d)(1). However, to receive child’s
insurance benefits, the applicant must qualify as the insured individual’s “child,”
as defined by section 216(e) of the Act, and be dependent on the insured individual
at the time he filed his application. See id.; 20 C.F.R. § 404.350.
Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child
of an individual.” Act § 216(e)(1). The Act further provides: “[i]n determining whether
an applicant is the child . . . [of an] insured individual . . . apply such law as
would be applied in determining the devolution of intestate personal property by the
courts of the State . . . .” in which the insured individual was domiciled. Act §
216(h)(2)(A). An applicant is eligible for benefits as the insured individual’s “natural
child” if he could inherit property based on this intestacy test. 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. See 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 (SSR) 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 . . . .”).
The NH was domiciled in North Dakota at the time the application was filed. Accordingly,
North Dakota intestacy law determines Claimant’s relationship with NH, and thus, his
entitlement to child’s insurance benefits.
North Dakota Law
North Dakota intestacy law provides that, if a parent-child relationship is established
under sections 30.01-04-14 through 30.01-04-20, the child is a child of the parent
for purposes of intestate succession. See N.D. Cent. Code § 30.1-04-15. Section 30.1-04-19 addresses children “conceived by
assisted reproduction,” which contemplates children who are conceived using donated
eggs or sperm. This section provides that a parent-child relationship exists between
a child of assisted reproduction and the birth mother. See N.D. Cent. Code § 30.1-04-19(3). The statute further states that “[a] birth certificate
identifying an individual other than the birth mother as the other parent of a child
of assisted reproduction presumptively establishes a
parent-child relationship between the child and that individual.” N.D. Cent. Code
§ 30.1-04-19(5). In this case, J~’s birth certificate identifies the NH as a parent.
Thus, pursuant to North Dakota law, a parent-child relationship has been established,
and J~ could inherit the NH’s property as her child. See id. Therefore, J~ is also entitled to child insurance benefits on the NH’s record. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); POMS GN 00306.001(C)(1)-(2).
It is important to note that the language in N.D. Cent. Code § 30.1-04-19(5) is sex-neutral.
Further, the comments to the corresponding provision of the Uniform Probate Code,
§ 2-120, make clear that the birth certificate presumption set forth in N.D. Cent.
Code § 30.1-04-19(5) “could apply” to a same-sex couple if state law permits a woman
who is not the birth mother to be listed on the child’s birth certificate.  Unif. Probate Code § 2-120 cmt. (amended 2008). Here, we note that the birth certificate
was issued by the state of Minnesota—not North Dakota. Nonetheless, we identified
no statute or case law in North Dakota suggesting that North Dakota would not permit
a same-sex partner to be listed on the birth certificate or would not otherwise recognize
a same-sex couple as parents. See Damron v. Damron, 670 N.W.2d 871, 876 (N.D. 2003) (finding that a custodial parent’s homosexual household
is not grounds for modifying custody in the absence of evidence that the environment
endangers or potentially endangers the children’s physical or emotional health). And
in the case of a child born to unmarried parents, both North Dakota and Minnesota
generally require that a father (or presumably a same-sex partner) consent in writing
to being named on a child’s birth certificate. See N.D. Cent. Code
§ 23-02.1-13(5); Minn. R. 4601.0600, Subp. 5. Additionally, the North Dakota adoption
statute does not expressly ban same-sex couples from adopting or having custody of
children. See N.D. Cent. Code § 14-15-01, et seq. Thus, based on the plain language of the statute as well as the drafter’s comments,
we conclude that an individual’s sex is not relevant to the question of parentage
under N.D. Cent. Code § 30.1-04-19(5).