Alycia Marie Kennedy has posted a new law review article on ssrn.com entitled Posthumous Conception and the Social Security Act, forthcoming in the Boston College Law Review. In it, she highlights a circuit split over the application of Social Security regulations (for child survivor benefits). Divergent decisions appeared in the Fourth and Eight Circuits in 2011 - basically, over the application of Chevron deference to the Social Security Administration's interpretation of the relevant statute. Interestingly, both appellate courts ruled in favor of the SSA. The Fourth Circuit reached its conclusion at Chevron step one, finding that there was no ambiguity in the statute, while the Eighth Circuit went to Chevron step two, finding the statute ambiguous, and SSA's interpretation reasonable. The author proposes (and argues convincingly for) a Congressional amendment to the statute to bring clarity and to ensure equal rights for posthumously conceived children. Here is the abstract:
Legal issues surrounding posthumously conceived children often arise in the context of the Social Security Act, which looks to state law to determine who qualifies for benefits through a deceased parent. Because the states have failed to promptly respond to the possibility of posthumous conception, reliance on state law does not adequately protect the rights of this special class of children. This Note argues that Congress must create a uniform standard of Social Security eligibility for posthumously conceived children. It details the various developments in reproductive technology that have allowed for the possibility of posthumous conception and explains the Social Security Act and its relationship with the Social Security Administration. It then discusses the four circuit court opinions that created a split on how the Act should be interpreted and the Supreme Court's 2012 decision resolving the split. The Note finally argues that posthumously conceived children should not have to rely on state intestacy statutes to qualify for benefits and details the reasons that Congress must update the Act at the federal level before offering a solution.
- Dru Stevenson