Old vs. new at the High Court

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Published March 19, 2012

| FoxNews.com

On Monday, the Supreme Court struggled to square a law crafted in 1939 with some very modern technology: in vitro fertilization. 

The case centers on Karen Capato, whose husband was diagnosed with cancer not long after they married. On the advice of doctors, Robert Capato banked some sperm for future use. 

He died after the couple had one child naturally. Then, with the help of in vitro treatments, 18 months after Robert Capato's death Karen delivered twins.

When Karen attempted to collect Social Security survivor benefits for her two youngest children, the agency denied her claim. 

As the legal fight raged over the past several years, the government has always maintained that the Capato twins do not meet the definition of "child" under the relevant federal statute.

The government also argues that in this case, the decision must be made by deferring to the state intestacy laws that govern where Robert was domiciled at the time of his death, Florida. Under those guidelines, the twins would not be eligible to inherit personal property. 

The government maintains that also means the children cannot collect Social Security benefits.

Capato's attorney, Charles Rothfeld, says the underlying purpose of the Social Security Act was to "make it possible for a family to stay together" and to help a surviving spouse provide for his or her children. He told the Justices that deference to Florida law was incorrect, and that the twins fall squarely under the federal statute's definition of "child."

Many of the Justices appeared skeptical on Monday. 

Justice Stephen Breyer said it appeared Rothfeld simply wanted the Court to apply "this old law to new technology" and simply overlook the complications that arise by deferring to individual state laws.

However, Chief Justice John Roberts noted that recognizing state law as the relevant authority wouldn't necessarily lead to easy answers.

He cited the current case as an example, pointing out that many states "haven't had a chance to decide whether they want to recognize the offspring for State intestacy law or not."

Most agreed that the case presents significant challenges for a law crafted decades ago, long before lawmakers could envision the fertility treatment options now available.

At one point, Justice Elena Kagan summed up the difficulties by simply stating: "It's a mess."

But it is a critical dispute for the Justices to settle, given that the use of artificial reproductive technology continues to grow. 

As Rothfeld noted after the oral arguments, "Many members of the military, you know men who are deployed overseas, are increasingly banking their sperm so in case something happens ... their wives can create or expand on their families."

A decision is expected by the end of the Court's term in late June.

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