From California, an important legal precedent in the evolving realm of reproductive technology, involving the case of Social Security survivor benefits denied to a twins born from frozen sperm banked by their terminally-ill father. From the Monterey Herald:

SAN FRANCISCO (AP) Twins conceived from frozen sperm after their father died of cancer are eligible to collect Social Security benefits, a federal appeals court ruled. The Ninth U.S. Circuit Court of Appeals said Wednesday that an Arizona judge erred in ruling that the 7-year-olds could be denied survivor benefits.

"Developing reproductive technology has outpaced federal and state laws, which currently do not address directly the legal issues created by posthumous conception," Judge Betty B. Fletcher wrote in the three-member panel's unanimous decision. The ruling could affect cases in nine states under the court's jurisdiction. About 400,000 frozen human embryos exist in the United States, and thousands of men have preserved their sperm for future use.

The federal case involved a lawsuit filed against the Social Security Administration by the wife of Robert Netting, a University of Arizona anthropology professor who died of multiple myeloma in early 1995. After Netting was diagnosed and warned that chemotherapy might leave him sterile, he deposited some of his frozen sperm with his university's Health Science Center. Before dying two months later, he confirmed that he wanted his wife "to have their child after his death" using the sperm, according to the appellate court decision. About 10 months after he died, his wife became pregnant and gave birth in 1996 to twins, Piers and Juliet.

When Gillett-Netting applied for children's insurance benefits from the Social Security Administration, however, she was turned down on grounds that the children couldn't be dependents of Netting because he had died before they were conceived. The appellate court, however, concluded that under the Social Security Act "the vast majority of children are statutorily deemed dependent on their deceased parents."

Gillett-Netting was "absolutely thrilled" by the outcome, she told the Los Angeles Times. Dealing with Social Security officials was "frustrating," she said. "It was very difficult to communicate with them. That's why I went to a lawyer." The ruling is a "really important victory for children," said Hagit Elul of the New York law firm of Hughes, Hubbard & Reed, who worked on the case for free. "It affirms that all children should be treated equally regardless of the circumstances of their birth."

A very positive ruling, I think, and one seemingly mindful of both the needs of the children and the situation. While some people might argue the ruling in some way erodes the rights of a sperm donor to be free from financially supporting their IVF offspring, or might compel the government's payment of survivor benefits when not appropriate, I think the issue is actually more circumscribed in the legal sense.

In the case of anonymous sperm bank donors, the law recognizes that the donors clearly do not wish to be financially or socially responsible for the resulting children conceived - and they are not, as is explicit in most donor contracts, but this was not the case here. This was also not a case where a deceased man's sperm was extracted postmortem without his consent and used to conceive a child, as has been attempted. The court found that Robert Netting clearly wished his wife to be able to conceive after his anticipated medical sterility or death, and donated sperm specifically for the purpose.

Still, it would seem to be in the best interest of people planning this type of donation - that may result in posthumous conception - to have their intentions made clear in writing, with some type of will or other legal document. Not doing so would open up the argument that the donor might not have intended to produce children, even with a surviving partner, after his death.

But should the government be responsible for providing survivor benefits? In this case, I think the answer is "yes," considering that survivor benefits would have been authorized to children born to a man who died even hours or minutes after fathering a child. In its ruling, Arizona could have also negated the heirship of Netting's children, essentially "bastardizing" the twins because their father no longer existed, even though his wishes and his biological material survived. I think the U.S. Circuit Court of Appeals made the correct, compassionate decision to give his children the survivor benefits they are entitled to. Even more importantly, it shows that the law needs to maintain flexibility, vision and clarity in an ever-changing world.

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