TN 48 (08-16)

PR 01105.041 Oregon

A. PR 16-135 Relationship of a Child to Number Holder in the State of Oregon

Date: May 25, 2016

1. Syllabus:

The number holder (NH) lives in Oregon; therefore, we look to the Oregon intestacy law to determine the parent-child relationship. Oregon law presumes a parent-child relationship if the purported parents were married to each other at the time of the child’s birth. However, for the presumption of parentage to apply, it must be at least possible that the person is the biological parent of the child. 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. Under the Oregon Family Fairness Act, same-sex couples may register as domestic partners and enjoy the same rights, benefits, and privileges extended to married couples under Oregon law. Those privileges presumably include legal parenthood for the domestic partner of a woman who conceives a child by artificial insemination. This applies to couples who would have married if they could have.

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 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, it appears that the claimant would be the NH’s child. 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 required.

2. Opinion

QUESTION PRESENTED

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)?

BRIEF ANSWER

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 required.

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.

ANALYSIS

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.

State Law

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.1 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).2

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 child.3

CONCLUSION

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.


Footnotes:

[1]

. In 2007, the Oregon State Legislature enacted the Oregon Family Fairness Act, allowing same-sex couples to enter into domestic partnerships effective February 4, 2008. See 2007 Oregon Laws Ch. 99 (H.B. 2007), §§ 1-9 (codified at Or. Rev. Stat. §§ 106.300-106.340). These domestic partnerships “extend benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state.” Or. Rev. Stat. § 106.305(5); see also Or. Rev. Stat. § 106.340. Oregon has permitted same-sex marriage since May 19, 2014, when a federal district court ruled that Oregon’s ban on same-sex marriage was unconstitutional. Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1146-48 (D. Or. 2014). Prior to that date, Oregon law and the State constitution provided that marriage must be between a male and a female. See Or. Rev. Stat. § 106.010; Or. Const. Art. 15, § 5A.

[2]

. In Madrone, the court explained its rationale for refining the circumstances under which Section 109.243 applies: “Just as an opposite-sex couple may be fully committed to their relationship and family but choose not to marry, a same-sex couple, given the option to marry, could make that same choice — commitment without marriage. Because ORS 109.243 would not apply to an opposite-sex couple that made that choice, it follows that the statute also should not apply to same-sex couples that make the same choice.” Id.

[3]

. In Madrone, the court suggested that entering into a domestic partnership, like the couple did in this case, weighed in favor of finding an intent to marry because domestic partnerships were the “closest thing to marriage that the state offered to same-sex couples at the time.” 350 P.3d at 502. Nevertheless, further factual development on this point is worthwhile.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501105041
PR 01105.041 - Oregon - 08/08/2016
Batch run: 08/08/2016
Rev:08/08/2016