MacNeil v. Berryhill

Filing

OPINION, Concurring, by judge GEL, FILED.[2109106] [16-2189]

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GERARD E. LYNCH, concurring:
I concur fully in Judge Livingston’s thorough and detailed opinion, which
accurately explains the law governing this case. As the panel opinion demonstrates, the
denial of the MacNeil children’s application for survivors’ benefits follows inexorably
from two clear legal rules: First, the Social Security Act defines eligible children by
reference to state intestacy law. And second, New York intestacy law does not now, and
never has, permitted intestate inheritance by children conceived long after the death of
a parent. I write separately only to note some additional facts about the case, and to
suggest that Congress may wish to take up the unique problem it poses.
First, the facts. The claimant children are the product of a combination of a
moving romantic connection and modern reproductive technology. As the panel
opinion describes, Sharon MacNeil married her college sweetheart not long after their
graduation. Shortly thereafter, Eric MacNeil was diagnosed with a dangerous cancer.
The couple were deeply committed to each other, however, and discussed their hopes
for having children together. They determined to preserve Eric’s sperm, against the
possibility that his cancer treatment would either fail, or, if it succeeded in saving his
life, render him infertile. When Eric learned that his death was inevitable, he gave his
wife permission to use the preserved sperm if she decided to have his children after his
death, and took what limited steps were in his power to provide some financial support
to his wife and to any children of his that she might bear, including making them the

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beneficiaries of a life insurance policy. Eric MacNeil died at twenty-four, barely a year
and a half into his marriage.
Needless to say, in the wake of her young husband’s death, dealing with her
grief, struggling with limited financial resources, and enduring the loss of both of her
parents in the next few years, for some time Sharon MacNeil felt unable to undergo the
expensive and difficult process of in vitro fertilization or to raise children as a single
parent. Instead, she returned to school, obtained an advanced degree, and went to
work. But her desire to have children – her late husband’s children – remained with her
over years of struggle and saving. Eleven years after Eric’s death, Sharon began the
process of in vitro fertilization of her eggs with Eric’s sperm and implantation of the
resulting embryos. The procedure was successful: Sharon became pregnant, carried two
babies to term, and gave birth to the twins whose claims are before the Court.
The MacNeils’ story, though commenced in sadness, is one of love, commitment,
and determination. It is also a story of modern scientific accomplishment. Although the
possibilities opened up by assisted reproductive technology are by now well established
and even familiar, they would have been utterly unimaginable to the drafters of the
Social Security Act in the depths of the Great Depression over 80 years ago.
Second, the suggestion. As noted, the Congress that adopted the Social Security
Act, and thereby provided for benefits for orphaned children, had no intentions

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whatever with respect to children conceived (as opposed to born) posthumously, because
such conception was unimaginable at the time. In undertaking to define which children
were eligible for benefits, a principal concern was drawing lines with respect to nonmarital children: specifically, how could such children demonstrate their “dependence”
on a deceased parent such that their entitlement to survivors’ benefits could be
established? It was eminently reasonable for Congress, concerned primarily with the
larger outlines of the complex social security program, to defer this question to the law
of the states, which had, and still have, primary responsibility for family law, and had
already developed a set of “legitimacy” laws to answer that question in the inheritance
context. And the choice to rely on state intestacy laws appears to have stood the test of
time; there is little evidence of controversy, difficulties, or complex litigation deriving
from that decision over the years.
The rise of scientifically-assisted reproduction technologies may, however, have
opened a fissure between the policies of the Social Security Act and those of intestate
succession in the small category of cases like the present one. As the panel opinion
discusses, New York has recently changed its inheritance laws to confer succession
rights on posthumously conceived children under limited circumstances, and in
particular only when such children are born within a relatively short period after the
death of the intestate parent. Imposing a strict time-limit is an eminently practical

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decision in the inheritance context. As the Court notes, estates cannot be held open
indefinitely (delaying distribution to existing heirs and incurring administrative
expenses) against the possibility of the birth of additional heirs years in the future, nor is
it practical to distribute an estate to existing heirs but reclaim the assets and unscramble
the distributions through further litigation years later at the behest of after-born heirs.
But those considerations are not relevant to the functioning of the Social Security Act.
The panel opinion notes another policy that may dovetail with those concerns,
however. Citing the Supreme Court’s opinion in Astrue v. Capato, 566 U.S. 541, 132 S.Ct.
2021 (2012), the panel suggests that Congress may have been concerned only with
protecting “dependent members of a wage earner’s family with protection against the
hardship occasioned by the loss of the insured’s earnings,” id. at 2032 (internal brackets
and quotation marks omitted), a hardship which the Court suggested is not experienced
by “those conceived after the death of the wage earner, and thus never reliant on his
support,” Panel op. at 20, citing id.
That is perhaps a reasonable view. Certainly the original drafters of the Act were
concerned about children who did enjoy a parent’s financial support for some period of
time (or, in the “pregnant widow” scenario, were at least conceived with that
expectation), and then were deprived of that support by the parent’s untimely death.
But again, Congress had no occasion at the time to think of children in the situation of

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the MacNeil twins.
It is perhaps unduly narrow, however, to consider that children such as the
claimants here are somehow not financially burdened by the death of their biological
father, simply because it occurred long before they were born. Surely, if Eric MacNeil
had lived, his children would have benefitted from his earning power. And equally
surely, the existing children are in a less secure financial position than they would be if
their father were alive to contribute to their support. Indeed, it would be entirely
reasonable for a person, anticipating that problem, to purchase insurance for the
purpose of supporting his or her offspring in the event of premature death, whether or
not he or she already had children or had yet developed a significant earning capacity.
In the present case, Eric made the same effort: the record indicates that Eric told his wife
to use the proceeds of his life insurance policy to support any children she conceived
after his death. In the same spirit, it is not clear that social insurance should exclude the
possibility of paying benefits on the basis of the insured’s earnings record to children
who are conceived after the insured’s death.1

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Of course, the social security system is, in fact, a “trust fund financed, in large part, by
taxes levied on the wage earners who are the primary beneficiaries of the fund,” rather than a
traditional form of insurance. See Califano v. Jobst, 434 U.S. 47, 52 (1977); see also Nat’l Fed’n
of Indep. Bus. v. Sebelius, 567 U.S. 519, 595 (2012) (describing social security as a “tax-andspend” program). Nevertheless, the program has long been pitched to voters as comparable to
insurance insofar as it extends an entitlement to benefits to people who pay into the system. See,
e.g., Califano v. Goldfarb, 430 U.S. 199, 208 (1977) (plurality opinion) (describing the social
security system as a “program of social insurance”).
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Of course, I am in no position to assess whether doing so would be good or bad
policy. It is the role of Congress, and not of the courts, to study the situation, assess the
costs and benefits of providing such coverage, and weigh the complexities of dealing
with any program to provide for posthumously conceived children (how would such
children be defined, independently of state intestate succession law? how would the
biological children of married parents like Eric MacNeil be distinguished from the
biological offspring of an insured donor to a sperm bank? would it matter if the children
were born into a two-parent household and adopted by the surviving parent’s spouse?).
Perhaps it would be reasonable to leave the law unchanged, adhering to the advantage
of a clear and simple rule that provides for the originally intended class of orphaned
children, rather than to attempt to create a more complicated program for the relatively
few (but increasing number of) children in the situation of the present claimants. I do
not have any settled view about whether it wold be practical or desirable social or fiscal
policy to provide a special rule for posthumously conceived children – and if I did, it
would not be my role to promote it, and there would be little reason for Congress to
attend to it.
But I do know that there is no evidence that Congress has ever considered or
addressed the new possibilities created by assisted reproductive technology in this
context, and I think it is a mistake to pretend that anything in the original intentions of

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Congress in adopting the Social Security Act tells us what the long-deceased drafters of
the Act would have thought about this case, or what a present or future Congress
would conclude if it studied the question. Moreover, it is tolerably clear to me that this
is an instance in which there are entirely sound reasons for states to utilize restrictive
rules in the context of intestacy, which reasons diverge from the considerations relevant
to the sound administration of the Social Security Act. It would therefore make sense, I
think, for the Social Security Administration, and members of the relevant
congressional committees and their staffs, to devote some thought to the issue.
In the present case, however, we can only apply the law as it was written, and
under the law as written it is clear that Congress has not provided benefits for children
in the category of the MacNeil twins.

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