I'm the parent of three children -- and, next month, if all things go as planned, a fourth -- and there's no doubt I'm the father of each of them.
But particularly in the modern era, the answer to the seemingly simple question "Who's your daddy?" is not always so facile. We all know the scoop about surrogacy, gay and lesbian adoption, etc. But today's Ninth Circuit case has a new (and interesting) factual twist on the whole issue.
A little background first. Back in 2004, the Ninth Circuit had a case involving a father in Arizona who had prostate cancer and who delayed treatment so he could deposit some semen for later use by his wife in case he didn't make it. Sadly, he didn't, and around 10 months after his death, the wife was artificially inseminated and had his kid. The wife then applied for Social Security survivor benefits on behalf of the child, and the Ninth Circuit held that, yep, the child was indeed the child of the deceased father, so he got benefits. The Social Security Administration didn't like this ruling, but it acquiesced to it -- albeit in the Ninth Circuit only.
Meanwhile, in California, another tragedy was taking place. Shortly after the Ninth Circuit's ruling, in 2005, another husband died of accidental causes. The wife again wanted to potentially have the husband's child -- they'd been married for five years. So again a physician took some sperm and froze it.
But there are significant differences between the two cases. For example, in the first case, the husband was alive (though knew he was dying), and expressly agreed to the procedure at the time. But in the second case, because the husband died in an accident, there was no express consent by the husband to the procedure (and the couple had no previous children), and instead they took the sperm out of the husband after he was dead. (I didn't realize that you could do this. It makes sense, of course. I just hadn't thought about it.) Another difference is that unlike the first case, where the child was conceived 10 months after the father's death, in the second case, the child is conceived over three years later. And the final difference is, again, that the first case was in Arizona, whereas the second case is in California.
So in answering the question "Who's the kid's daddy?", all of these facts might be important. It's also raises interesting policyand doctrinal issues. Are children conceived in this context entitled to social security survivor benefits? Where do we draw the line? Do we require express consent of the father, or implicit consent, or merely a biological connection? Should we consider a child conceived 9 months after death a survivor, or 3 years, or 10 years, or 50? Medical science again forces us to rethink and assess some of our basic assumptions in this area.
Ultimately, Judge Hall concludes that none of this matters, and that instead what matters is that the child was born in California, not Arizona. Because whether you're a "child" of the deceased for Social Security purposes depends upon state law. And, according to Ninth Circuit, the child here was a child of his mother, but not of his father. Since -- and this seems ironic to me, given the usual differences between the two states -- California law is allegedly more restrictive about who counts as a "parent" in this context than Arizona.
So particularly if you're interested in who counts as a daddy in our Great State, this is definitely an opinion worth reading. Plus, the whole "pull the sperm out of you after you're dead" thing is a neat concept to brighten up a Wednesday morning.
