By Frank James

Here's a different kind of Father's Day story.

A woman's husband dies in 1995 from an allergic response. Shortly after his death, the widow has his sperm extracted and frozen. Three years later she has herself artificially inseminated with her dead husband's sperm.

After a child is born, she applies for Social Security survivor's insurance benefits for herself and the child. Should they receive them? And is the child the legitimate, natural child of the deceased man?

No and no seem like the right answers. But when the Social Security Administration told her as much, Gabriela Vernoff sued. She lost in U.S. District Court and appealed. The U.S. Court of Appeals for the Ninth Circuit now has ruled against her too.

Among the court's reasoning: there was no evidence that Bruce Verner, the dead man, ever wanted to have or support the child, named Brandalynn who is now ten years old.

The court also looked to California law and found a statute there that appears to rule out the dead man's parentage as well.

[4] The primary means for a father in California to acquire rights as a natural father is through application of California Family Code ?? 7611. That section sets out several methods by which a father is presumed to be the natural parent of a child, including, most relevant to this case, if "[h]e and the child's natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death . . . ." ?? 7611(a). Because the Vernoff's marriage was terminated by death, and Brandalynn was not born with 300 days of the insured's death, 5 the insured is not presumed to be her natural father under this provision.

So according to the federal courts, the dead man may be the girl's biological father, but he isn't her father in the eyes of the law.

Again, an interesting case to contemplate as Father's Day approaches.

categories: Legal

2:13 - June 18, 2009

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