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At the U.S. Supreme Court today, arguments related to in vitro fertilization and government benefits. At issue is whether children conceived after the death of a parent are eligible for Social Security survivor's benefits. The case involves the children of Robert and Karen Capato and, as NPR legal affairs correspondent Nina Totenberg explains, it may be groundbreaking, but it's not unique.

NINA TOTENBERG, BYLINE: Before beginning cancer treatments, Robert Capato deposited sperm at a fertility clinic, and after he died, Karen carried out the couple's plan to conceive using Robert's sperm. In 2003, she gave birth to twins and filed for survivors' benefits for the children based on her late husband's Social Security taxes. But the Social Security Administration denied the claim, contending that because the twins could not inherit under Florida state law, where the couple lived, the children were ineligible for survivors' benefits.

A federal appeals court disagreed. It said the 1939 Social Security Act confers benefits on all biological offspring of a married couple.

The Supreme Court's eventual decision in this case will have an immediate effect beyond the Capato family. More than 100 similar cases are currently pending before the Social Security Administration. And as the Capato's lawyer, Charles Rothfeld, observed on the Supreme Court steps today...

CHARLES ROTHFELD: Increasingly, members of the military - male members of the military before deployment - are freezing their sperm in case something happens, and they don't come.

TOTENBERG: Inside the courtroom, the government's lawyer, Eric Miller, contended that the Social Security Administration, since 1940, has determined a child's eligibility for survivors' benefits based on whether that child can inherit under state law.

Justice Alito noted that the Congress that enacted this law in 1939 never had an inkling about the situation that has arisen in this case; just as they had no inkling that any state would go off and take away the inheritance rights of children born to a married couple. And Justice Kagan called the government's reading of the law bizarre, in view of the fact that another section of the statute does not apply state inheritance law to stepchildren, grandchildren, and even step-grandchildren when determining survivors' benefits.

But that was about all the sympathy the Capato's got. Justices Scalia and Kennedy both raised an issue not before the court - whether a child conceived in-vitro can properly be called a survivor, since the child never lived with or was dependent upon the deceased. And when the Capato's lawyer rose to make his argument, he got pounded.

Justice Sotomayor: Suppose Mrs. Capato remarried, would her in-vitro children still qualify for survivors' benefits? A situation like that is what's making me uncomfortable, because I don't see the words biological in the statute or the word marriage within the definition of a child.

Lawyer Rothfeld replied that at the time Congress enacted this statute in 1939, more than 95 percent of the children in the United States were the offspring of married parents. So when Congress said a child is a child, it would have had in mind the paradigm of the time.

Justice Kagan: Can you point to any other statutes around the time which support the notion that when people said child, they meant child within a legal marriage? Rothfeld said it was so clear back then that there was no need to define it further.

Justice Sotomayor: So the child of an unmarried mother is not automatically covered?

Answer: As Congress wrote this statute, that's correct. After all, lawyer Rothfeld argued, in 1939 there was no way to be scientifically certain who the father of a child was. Marriage was a proxy for that.

Justice Ginsburg: Yes, but at the time this statute was written, didn't a marriage end at death?

Justice Breyer: If we rule in your favor, I don't see how you're going to save us from even worse problems, especially when I look at all the in-vitro laws in every state, it's very complicated. Couldn't the father just write a note and say, this is my child, even if it's conceived later?

Answer: The father did, in fact, write such a note. But under state law it wasn't enough.

Chief Justice Roberts: Under our precedents, if a law is ambiguous, we defer to the agency's interpretation and you lose. Is there any reason we shouldn't conclude, based on the last hour, that this law is at least ambiguous?

Justice Kagan: It's a mess.

Lawyer Rothfeld: The problem is that we're dealing with new technologies that Congress wasn't anticipating. And in this case, the court may well toss the problem right back to Congress.

Nina Totenberg, NPR News, Washington.

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