Court case: Social Security benefits for child conceived after dad's death

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SALT LAKE CITY - There is no question that Ian Burns is the son of Michael Burns.

But did Michael intend to father a child nearly three years after his own death from cancer?

For his wife, Gayle, there is no doubt.

But for the Social Security Administration, which is fighting her efforts to get survivor's benefits for their son, the answer is no.

Now the Utah Supreme Court is entering the debate in a first-of- its-kind case here, though the issue has been debated in a handful of other states.

The justices are poised to answer two questions: Is a signed sperm donor agreement evidence of a man's desire to become a father, even after his death? And is that child then his legal heir?

The Social Security Administration has drawn a line between children conceived before a parent's death and those conceived afterward. Benefits are allowed only if the mother is already pregnant with the child before the father's death.

But state laws also come into play when considering eligibility of posthumously conceived children, said Patti Tye, acting regional communications officer.

When the law is unclear, legal experts say the trend for courts is toward recognizing posthumously conceived children as a deceased's dependents.

In an Arizona case, the Ninth Circuit Court found that twins conceived and born after their father's death from cancer were his "legitimate" children and entitled to benefits.

Massachusetts and New Jersey courts also found the posthumously conceived children of men who died of cancer were legal heirs of the deceased father and entitled to benefits.

The simplest way to remedy the situation is to adopt clearer language in the statute, said Michael Elliott, a North Carolina probate attorney and author of a 2004 article titled, "Tales of Parenthood from the Crypt."

And anyone who stores genetic material should address their intent in a will, he said.

In the Utah case, Michael Burns deposited semen in a storage bank before undergoing chemotherapy and signed a contract with the University of Utah's Reproductive Care Center asking that it legally transfer the sperm to his wife upon his death.

And he talked to his wife and his sister about his desire to be a father, regardless of what was ahead, Gayle said.

Michael Burns died of cancer in 2001. Two years later, Gayle became pregnant through in vitro fertilization and Ian was born Dec. 23, 2003.

When she filled out Ian's birth certificate, she listed Michael as his father. The Utah Office of Vital Records and Statistics contacted her and said she couldn't do that since Michael was dead.

It took nearly a year for Gayle to gather documents -- fertility clinic and sperm bank records, as well as a notarized affidavit from Michael's mother acknowledging Ian as her grandson -- and convince the Vital Records office that Michael was Ian's dad.

Gayle first applied for Social Security benefits for Ian as Michael's survivor in 2005. She was turned down twice before she hired an attorney, got a court order acknowledging Michael's paternity and appealed the decision to an administrative law judge.

The case is working its way through the courts:
-- Administrative Law Judge Donald Jensen ruled in her favor, noting in his August 2008 decision that provisions in Utah's Uniform Parentage Act specifically recognize an after-conceived child if the deceased spouse "consented in a record" to assisted reproduction in the event of death.

-- Social Security agreed to send Gayle $572 a month in payments, and make up those past due, but warned she would have to pay back the money if the agency's Appeals Council overturned the judge's decision.

-- A year later, Social Security was asking for its money back when the Appeals Council ruled the Burnses' marriage ended when Michael died and that Ian could not therefore be considered his dependent.

-- Meanwhile, Gayle's attorney, William Hadley, filed an appeal in U.S. District Court, which the Social Security Administration asked be referred to the Utah Supreme Court.

U.S. District Judge Dale Kimball said in his order sending the case to the state's high court that the legal status of a posthumously conceived child is "unsettled" under existing state laws.

(E-mail reporter Brooke Adams at brooke(at)sltrib.com. For more stories visit scrippsnews.com)

(Distributed by Scripps Howard News Service, www.scrippsnews.com.)

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