U.S. Supreme Court may bar Utah boy from dad's benefits

Children conceived after fathers die aren't eligible, bench rules

By Paul Foy

Associated Press

Published: Monday, May 21 2012 11:38 p.m. MDT

SALT LAKE CITY — A U.S. Supreme Court ruling means a Utah boy — conceived with the frozen sperm of his dead father — probably won't qualify for Social Security survivor benefits, the boy's mother said Monday.

The Supreme Court held in a Florida case on Monday that children conceived by artificial insemination after their fathers die aren't automatically entitled to survivor's benefits.

In Utah, Gayle Burns has been trying to get survivor's benefits for a son who was conceived with her husband's sperm two years after the husband died of infection caused by a stem-cell transplant.

The Supreme Court ruling jeopardizes her case because her husband didn't specify that he wanted to be a father, despite his obvious wish, she said.

Michael Burns failed to satisfy Utah law by writing it down on paper, his widow said.

"It's been a long haul," Gayle Burns said Monday. "From what my lawyer tells me, it doesn't look very good for us."

Her lawyer, William Hadley, said it appears the Utah Supreme Court was waiting for the U.S. Supreme Court before issuing a ruling in the Burns case. Arguments in that case were held in February.

Under Utah law, it was necessary for Michael Burns to make clear in a sperm storage contract that he would be the natural father of any child born after his death, and "he didn't do that," Hadley said Monday.

Burns used the contract to specify only that he wanted his sperm to be provided to his wife if he died — he was beating cancer and didn't expect to die or to have to make legal arrangements to preserve Social Security benefits for his future son, Gayle Burns said.

"We never had an indication he was going to die," she said. "He was cancer free."

Michael Burns had non-Hodgkin's lymphoma, or cancer of lymphoid tissue.

"It was the treatment that killed him, a stem cell transplant. His immune system was compromised, and the natural bacteria in his system took over. He was gone in about 12 hours," Gayle Burns said. "It was just one of those things the doctors couldn't catch quickly enough. It was a risk with his treatment."

The U.S. Supreme Court held that state laws govern survivor eligibility for Social Security benefits. In the case of twins conceived with the sperm of Robert Capato after his death, Florida bars children who are conceived posthumously from inheritance unless they are named in a will. They weren't.

The ruling could affect the outcome of about 100 cases nationwide involving artificial insemination and survivor benefits, depending on the laws in each state, Hadley said.

It shifts the burden of proof from the Social Security Administration to families, who will have to show why they should be entitled to survivor's benefits, he said.

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