Social Security Survivor Benefits: Why Congress Must Create a Uniform Standard of Eligibility for Posthumously Conceived Children

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 states have failed to respond promptly 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, and proposes that such children should receive benefits only if (1) before death, the deceased father agreed in writing to be responsible for and support a child conceived with his frozen sperm, and (2) the child is conceived within four years of the father’s death.