Child born by reproductive technology more than 10 months after father’s death not entitled to Social Security survivor benefits.

Shortly after his marriage in 1992, Don Schafer was diagnosed with cancer. Don deposited sperm samples in a storage facility and died a few months later, a resident of Virginia. Many years later, through the use of assistive reproductive technology, Don’s surviving spouse, Janice, conceived and gave birth to Don’s biological child.

Janice applied on the child’s behalf to the Social Security Administration for survivorship benefits. The SSA rejected the claim for benefits because: (1) under its interpretation of the Social Security Act, a child must be able to inherit from the decedent under local intestacy law in order to be a “child” under the Act entitled to benefits; and (2) Virginia law does not recognize any child born more than ten months after the death of a parent for intestate succession purposes.  

Janice filed suit in the U.S. District Court for the Western District of North Carolina asserting the child’s right to benefits. The district court held that: (1) the SSA’s interpretation of the Act was reasonable; and (2) because the child was not able to inherit under Virginia’s intestacy law, the child was not Don’s child for purposes of the Act and was not entitled to survivorship benefits. Janice appealed. On appeal, the U.S. Court of Appeals for the Fourth Circuit upheld the district court ruling and denied the child benefits.