Is H~ (the claimant) the child of her biological mother’s domestic partner, L~ (the
NH), for the purposes of determining entitlement to child’s benefits under Title II
of the Social Security Act (the Act)?
The evidence presented does not preclude a finding of a parent-child relationship
between the claimant and the NH for purposes of determining entitlement to child’s
benefits under Title II of the Act. However, further development of the evidence is
SUMMARY OF FACTS
The NH began receiving disability benefits in November 2006. In February 2008, she
entered into a domestic partnership under Oregon law with D~. On May XX, 2013, D~
gave birth to a baby girl, the claimant. The NH is listed as a parent on the birth
certificate. Currently, D~ and the NH have separated; the claimant lives with the
NH. On October XX, 2015, the NH filed for child’s insurance benefits on behalf of
the claimant. The claimant and the NH both reside in Oregon.
Federal Law on Child’s Benefits Under Title II
Under the Act, an individual may be eligible for child survivor’s insurance benefits
if: (1) she is the “child” of the insured, as defined in the Act; and (2) she was
“dependent upon” the insured at the time of application. 42 U.S.C. § 402(d); 20 C.F.R.
§ 404.350. For the purposes of child’s insurance benefits, “child” is defined as the
natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of
the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.
Under one method for determining whether the claimant qualifies as the “child” of
an insured worker, the agency 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” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured
had permanent home at the time of the application); Program Operations Manual System
(POMS) GN 00306.001(C) (determining what state law applies). The place where a person lives is properly
taken to be his or her domicile until facts adduced establish the contrary. District of Columbia v. Murphy, 314 U.S. 441, 455 (1941). Here, the evidence indicates that the NH lives in Oregon.
In the absence of any evidence to the contrary, this opinion will assume that Oregon
is the NH’s domicile.
Oregon law provides that, if a decedent dies intestate, her surviving spouse and any
issue shall receive a share of the intestate estate. Or. Rev. Stat. § 112.025 (2013).
“Issue” includes all lineal descendants, except those who are the lineal descendants
of living lineal descendants. Or. Rev. Stat. § 111.005(22). Thus, if the claimant
is the child of the NH, she would be able to inherit and would therefore be a “child”
under 42 U.S.C. § 416(h)(2)(A).
Oregon law presumes a parent-child relationship if the purported parents were married
to each other at the time of the child’s birth. Or. Rev. Stat. § 109.070. However,
“for the presumption of parentage to apply, it must be at least possible that the
person is the biological parent of the child.” Shineovich v. Shineovich, 214 P.3d 29, 36 (Or. App. 2009) (noting that statutory provisions refer to establishing
paternity). Therefore, this presumption cannot apply to a same-sex couple.
Though the presumption of biological parentage is not available to same-sex couples,
parentage may be established if the child was conceived through artificial insemination.
The relationship, rights and obligation between a child born as a result of artificial
insemination and the mother’s husband shall be the same to all legal intents and purposes
as if the child had been naturally and legitimately conceived by the mother and the
mother’s husband if the husband consented to the performance of artificial insemination.
Or. Rev. Stat. § 109.243.
In 2009, the Oregon Court of Appeals held that Section 109.243 must be available to
same-sex couples in a domestic partnership. Shineovich, 214 P.3d at 40. Following Shineovich, the court clarified that the touchstone for determining whether Or. Rev. Stat. § 109.243
applied to a same-sex couple was “whether the same-sex partners would have chosen to marry before the child’s birth had they been permitted to.” In re Madrone, 350 P.3d 495, 501 (Or. App. 2015) (emphasis in original).
Parentage can also be established by adoption. Or. Rev. Stat. § 109.050; see Or. Rev. Stat. § 111.005(22) (including adopted children in definition of issue).
Application of Law to Facts
In February 2008, the NH entered a domestic partnership with the claimant’s mother.
In 2013, D~ gave birth to the claimant. As of the date of this request for opinion,
the NH and D~ no longer live together. These facts do not preclude the conclusion
that the claimant is the child of the NH for the purposes of the Act.
We first consider whether the claimant could inherit as the NH’s child under Oregon
intestacy law. Here, there is no allegation that the NH is the claimant’s biological
parent. However, evidence indicates that the NH and the claimant’s biological mother
were in a domestic partnership at the time of the claimant’s birth and the NH is identified
as a parent on the claimant’s birth certificate. There is no evidence of a second
legal, biological parent. Absent evidence to the contrary, it appears possible that
the claimant was conceived by artificial insemination. If the claimant was conceived
by artificial insemination, Or. Rev. Stat. § 109.243 could apply.
In making the decision in Shineovich, the court noted: “The purpose of ORS 109.243 is to protect children conceived by
artificial insemination from being denied the right to support by the mother's husband
or to inherit from the husband… [and] extending the statute's coverage to include
the children of mothers in same-sex relationships advances the legislative objective
by providing the same protection for a greater number of children.” The court also
stated that, “in 2007, the legislature passed the Oregon Family Fairness Act (OFFA),
under which same-sex couples may register as domestic partners and enjoy the same
rights, benefits, and privileges extended to married couples under Oregon law [and]
those privileges presumably include legal parenthood by operation of law for the domestic
partner of a woman who conceives a child by artificial insemination.” As the court
later explained in Madrone, Section 109.243 applies to couples who “would have married if they could have.” 350 P.3d at 502 (emphasis in original).
As a result, if the NH consented to the artificial insemination of the claimant’s
mother and the evidence shows that they “would have chosen to marry before the child’s
birth had they been permitted to,” Madrone, 350 P.3d at 501 (emphasis omitted), it appears that the claimant would be the NH’s
For the above reasons, the evidence does not preclude a finding of a parent-child
relationship for purposes of determining entitlement to child’s benefits under Title
II of the Social Security Act.