Boy conceived after father's death not entitled to Social Security, court rules

Published: Friday, Oct. 12 2012 6:07 p.m. MDT

Utah Supreme Court Justice Ronald E. Nehring.

Trent Nelson

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SALT LAKE CITY — A young boy who was conceived from preserved sperm after his father's death is not entitled to Social Security benefits under Utah law, the Utah Supreme Court ruled Friday.

"For the reasons we explain in this opinion, an agreement leaving preserved frozen semen to the deceased donor's wife does not, without more, confer on the donor the status of a parent for purposes of Social Security benefits," Justice Ronald Nehring wrote in the unanimous decision.

The case centered around Gayle Burns, whose husband, Michael, was diagnosed with cancer within three years of their marriage, and the child she conceived with his preserved sperm. After Michael Burns' diagnosis, he deposited semen for cryopreservation and filled out a storage agreement that, in the event of death, the sperm would be kept for his wife.

Utah law requires a sperm donor to have specifically stated an intention to "parent" a child conceived through assisted reproduction before death in order to later be legally considered that child's father. Such intentions must be recorded in writing or in an electronic record.

Michael Burns did not specifically write that he intended to be a parent, but Gayle Burns said previously that the couple talked about it often and her attorney argued there was an "oral record" the Utah Supreme Court should consider.

Michael Burns died of cancer-related complications in 2001 and, two years later, his wife used his semen to conceive a child. She then applied for mother's insurance benefits and child's insurance benefits, which were twice denied by the Social Security Administration.

"The SSA found that Mrs. Burns had not shown (the child) was Mr. Burns's 'child' as defined by the Social Security Act," Nehring wrote. "Mrs. Burns requested a hearing before an administrative law judge on the matter. After holding a hearing, the judge issued a decision reversing the SSA’s previous determination and finding that Mrs. Burns was entitled to benefits."

But the Social Security Appeals Council reopened the case and determined again that Gayle Burns had not shown the child was Michael Burns' child as defined under the Social Security Act. She appealed to the U.S. District Court, which asked the Utah Supreme Court to answer a question of state law.

"The federal court has specifically asked us to interpret one section of the Utah Uniform Parentage Act ... which states, 'If a spouse dies before placement of ... sperm ... the deceased spouse is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased spouse would be a parent of the child,'” Nehring wrote.

A U.S. Supreme Court decision issued in May reiterated that state laws govern survivor eligibility for Social Security benefits.

The high court found that an agreement leaving semen to a spouse simply "does not constitute sufficient consent" to be a parent of a child after death.

"We agree with the SSA in that 'the mere act of preserving semen does not show an individual’s intent to be a parent,'" Nehring wrote. "The agreement in question makes no mention of the donor’s consent to be a parent of a child using his preserved semen. The agreement is a contract that defines the risks and obligations between Mr. Burns and the University of Utah. ... It did not ask for Mr. Burns's consent to be a parent of a posthumously conceived child."

E-mail: emorgan@desnews.com, Twitter: DNewsCrimeTeam

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