THE COUNSELOR’S CORNER
Here is a rather
interesting story. This took place in
Phoenix, Arizona, and is the story of Robert Netting and his wife Rhonda. In 1994 Robert was 59, and Rhonda was 30. At that time, they were trying to have a
child, and were not having much luck.
In December of 1994, Robert was diagnosed with cancer. Knowing that Robert did not have long to
live, the Nettings stored some sperm.
In February of 1995, only two months after his diagnosis, Robert died of
cancer.
Now flash forward to
December 1995. Proving that the
Nettings really did want to have a child together, the now widowed Mrs. Netting
became pregnant through the process of in vitro fertilization. Nine months later a baby, or actually babies
came, a son and a daughter. As Mrs.
Netting was now a widow needing financial assistance, she petitioned the Social
Security Administration for benefits for herself and her two children. Mrs. Netting’s claim was denied. She then appealed the denial, and that was
denied as well.
In January of this year, Mrs.
Netting filed a lawsuit. The questions
to be answered were, are these the children of Robert and Rhonda Netting, and
if so, are they eligible for Social Security benefits? The answers are no and no. The federal judge hearing the case decided
that the now six-year-old twins are not considered Robert Netting’s children
because they were conceived after his death.
Because they are not considered his children, they are not entitled to
help from the Social Security Administration.
The key here is the date of
conception. Had they been conceived
through the traditional mode of conception before Robert’s Death, the children
of Rhonda Netting would be getting help from Social Security. An unanswered question is what would have
happened had the children been conceived, let’s say, in January of 1995 from
the stored sperm. Mr. Netting
still would have been alive, although close to death, yet it is his stored
sperm that would have led to the birth of his children. I do not know of any court decisions that
have addressed that yet, and I think that in order to be consistent with this
decision, children conceived with his stored sperm in January of 1995 would
have been covered by Social Security.
The Judge’s ruling seems to hinge on the date of conception rather than
the mode of conception.
I can truly see both sides
of the argument in this case. I
understand and am sympathetic to Mrs. Netting; however, I also understand
Social Security’s position. I truly
think that this is a matter to be taken up by either state legislatures or
Congress, as I could easily see a federal judge in another jurisdiction
reaching the opposite conclusion. I do
not want where one resides to be the determining factor in whether or not one
receives Social Security benefits. That
then would lead to people moving to a state that will allow them benefits, and
moving out of a state that will not.
Justice should not depend on where one lives. It is unfortunate enough that it does in many cases, but I would
just as soon not create a new one. I would not be at all surprised if this case
is appealed from the United States District Court to a court of appeal to
determine whether or not the federal judge’s ruling will stand. The US District Court Judge deciding this
case held that, “Only a child who survives a deceased parent or who is in
gestation at the time of the deceased parent’s death, may inherit.”
OK, if that is to be the
law, then so be it. There is important
public policy at stake here, and I don’t think it should be decided by one
District Court Judge. Let state
legislatures or Congress consider this matter and spend an appropriate amount
of time examining both sides, and hopefully, come up with a statute or statutes
that will be relatively consistent in all fifty states.
Dr. Charles J. Unger is a criminal defense attorney
in the Glendale law firm of Flanagan, Unger & Grover,
and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal
and psychological issues. He can be
reached at
charlieunger @hotmail.com