The founders never conceived this

By Dana Milbank, The Washington Post
Posted March 22, 2012, at 4 p.m.

Next week, Supreme Court justices will begin deciding whether President Obama’s health-care reforms live or die. But if you think that’s ambitious, consider what the modest jurists were debating on Monday: what Americans are allowed to do after they die.

Specifically, the question before the court was this: whether a dead man can conceive children.

This odd point of law came before the court after a woman, Karen Capato, gave birth to twins 18 months after her husband died of cancer. She had used sperm he deposited when he was still alive, and she was seeking his Social Security survivor benefits for the kids.

The Constitution is silent on the question of posthumous conception, in large part because people back then did not sire children after death. In addition, the relevant Social Security law, written in 1939, does not get into questions of whether a surviving “child” includes one fertilized in vitro. In other words, the justices pretty much had to wing it.

The transcript of Monday morning’s oral argument before the High Court included, in alphabetical order, the words “illegitimate,” “insemination,” “marital,” “offspring,” “reproduced,” “reproduction,” “reproductive,” “sperm,” “unmarried,” “wedlock,” “wife” and “wives.” And that’s not even getting into Justice Sonia Sotomayor’s description of “biological input” into the procreative process.

Clearly, the justices were on another of their field trips from their judicial chambers to Americans’ bedchambers.

“Let’s assume Ms. Capato remarried but used her deceased husband’s sperm to birth two children,” Sotomayor posited. “Would they qualify for survivor benefits even though she is now remarried?”

“What happens if the decedent is the mother?” Sotomayor also wanted to know. “Does marriage matter only if it’s the father?”

The justice was not done forming new conception concepts. “What if you are a sperm donor? Does any offspring that sperm donor have qualify?”

“What if,” Chief Justice John Roberts posed, “the Capato twins were conceived four years after the death in this case? Would your argument be the same?”

And Justice Ruth Bader Ginsburg asked whether people in 1939 would have “understood that the marriage ends when a parent dies.”

The lawyers dutifully chased each scenario. “Today there are many cases in which biological parentage is not determinative of legal parentage,” argued administration lawyer Eric Miller, defending the Social Security’s decision not to pay benefits.

The argument was at once picayune (not many babies are conceived with a dead parent’s seed) and profound (the Justices have to resolve the definition of what a child is), and the case raised questions of federal versus state powers.

But mostly the case shows the struggle of an 18th-century legal system to keep up with 21st-century technology. As Justice Samuel Alito noted, “they never had any inkling about the situation that has arisen in this case” when members of Congress wrote the law.

The phenomenon is happening more often, and with more consequence — notably in the area of abortion, where legal standards have been outstripped by technologies such as the morning-after pill and the ability to make younger fetuses viable.

On the matter of posthumous conception, at least, justices on both right and left seemed disinclined to guess about what long-dead lawmakers would have thought about not-yet-invented technologies.

Charles Rothfeld, arguing for Capato, said lawmakers drafting Social Security in the 1930s only meant to include children of married parents in their definition of child, because that was “the paradigm of a child at that time.”

Justice Antonin Scalia wasn’t buying that. “When Congress says child, child means child, and the mere fact that Congress wrote that at an age when most children were indeed children of married people doesn’t change the word ‘child,’” he argued.

Justice Stephen Breyer raised a more practical objection. “There are already children who are eating up all of the money” in the survivor-benefit program, he said. “And then some new person shows up and you have to take the money away from the other children in order to give it to this new child. And all the time, you don’t know if that’s what the parent who was dead really wanted.”

Ultimately, Roberts said, the child-bearing widow loses the case if the law in question is ambiguous. “Is there any reason we shouldn’t conclude based on the last hour that it’s at least ambiguous?”

“It’s a mess!” answered Justice Elena Kagan.

“I think the problem is that we’re dealing with new technologies that Congress … wasn’t anticipating at the time,” Rothfeld allowed. “Congress would not have specifically had in mind, contemplated, the question of posthumous conception.”

Dana Milbank’s email address is danamilbank@washpost.com.

http://bangordailynews.com/2012/03/22/opinion/the-founders-never-conceived-this/ printed on July 31, 2014