Monday, May 21, 2012

Supremely Disappointed

First, let me say that this is not a political post. It's a very personal one. If you can only respond from a partisan point of view, then keep your opinion to yourself. If you can respond to a mother's heart, then I'd love to hear your thoughts. If you're a reproductive lawyer in Southern California, I'd really like to hear your thoughts!

I don't think that I have blogged about this situation before, but today I just need to do so.

Prior to getting pregnant with Michaela, I had learned on a widows' online forum of a young widow in my local area who had conceived a child after her husband's death from cancer. She shared that after a 13 month battle with the Social Security Administration that she had finally won survivors benefits for her child. Now, I would have continued to pursue a pregnancy without this knowledge, but the idea that any child of Michael's and mine could receive benefits was a positive. As his widow, I am not entitled to any of Michael's SS benefits now or in the future. Being a teacher with a defined benefit pension plan, I am not entitled to his benefits, or mine from the years I paid into the system before becoming a teacher. That's just the way it is.

Anyway, I had no idea that there was any controversy surrounding Social Security benefits for "posthumously conceived children" as Michaela is referred to in a legal sense. So, the month after she was born, I made an appointment to apply for benefits. I provided documentation from my doctor to prove that she was Michael's child, and the young woman who helped me said that it usually took about a month for an application to be processed and for the benefits to start being received.

With that in mind, I made arrangements for my housekeeper to take on the additional responsibility of being Michaela's nanny two days per week. I figured if there was a delay in the receipt of the benefits, then my small savings account would cover me for several months of pay for our nanny. Surely, it couldn't take that long. Or could it?

Toward the end of the summer, I started calling the local SSA office to check on the status of my application. I was told that the young woman who had taken my application was no longer there, and that someone else had been assigned to my case. I left messages for this person, but never received a return call. At some point, I spoke with the operator in the office and was told that once again my application had been reassigned to yet someone else. I left messages again and again throughout the fall of 2011, but no one ever returned my call. Sometime toward the end of the year, I called the SSA's 1-800 number, and at that point I actually talked to someone who would only tell me that my application had been referred to "legal".

By the time I got that much information out of the SSA, I had already become aware that there was much controversy swirling around posthumously conceived children and whether or not they are entitled to survivor's benefits. In fact, I learned that the SCOTUS was going to hear arguments about a similar case this spring, which they did in March this year.

Then at some point in my research online, I came across a woman with a similar situation to mine who had gone through this nearly twenty years ago. Her fight with the SSA resulted in her daughter receiving benefits, and it motivated her to become a lawyer. She has since organized a private group for those of us she could locate with posthumously conceived children, and we've all been hanging in there together waiting for the SCOTUS's decision.

Today that decision came, and the court decided that benefits can only be allowed if the individual state's inheritance laws allow for it. That means I'm still in limbo because I do not know if our case will meet these terms, or not:

A posthumous child may inherit if: (1) the decedent consented in writing to be treated as a parent; (2) if the decedent designated an agent; (3) the decedent’s designated agent gives notice to the person with the power to control the distribution of the estate within 4 months of his death that the decedent’s genetic material is available; and (4) a child is conceived within 2 years after the decedent’s death.

Obviously, #4 applies, and Michael did sign his sperm over to me in case of his death. I contacted my RE's office today to request all documentation that indicates his consent. I should have it in hand very soon. #2 and #3 are not easy for me to understand. Michael had a will, and I was the agent (executor) of the will, and everything of Michael's was left to me in the will. But is that what #2 and #3 mean, or not?

So, I guess the next step will be for me to meet with a "reproductive lawyer" and discuss whether or not we qualify to petition the SSA for benefits or not. Great. Legal fees. Sigh... I think the thing that bothers me the most is that some have received benefits, and some have not. I am also surprised that a federal program like SS pays out based on states' laws instead of a uniform policy that applies to all Americans.

I am so blessed to be Michaela's mom, and I would do it all again no matter what, but those benefits would be a big help.

Why can't these things be easy?


  1. I had no idea that there were survivor's benefits or that there'd be any hassle due to the nature of your daughter's conception. I hope this all works out to your advantage.

    I also read the birthday post and Mother's Day post. Yes, time just keeps marching on and on. I had to go through my daughter's clothes for the first time and take out all the things she's out grown this year and it was so bitter-sweet. She was still a baby in so many ways when I adopted her and I wanted her to grow and thrive, but now that she has, it's hard saying good-bye to the baby part of her. However, the next stage is super wonderful, too!

    I did discover this year that a single mother's Mother's Day is a Do-It-Yourself holiday!!!

  2. Interesting they would find the need to differentiate between children born before or after someone has died. I understand them needing some criteria to prove the person actually wanted/was willing to be a father. I don't know any stats, but I don't imagine these children make up a large percentage of children getting survivor much do they really save by denying these benefits to deserving children/families? Sorry you are caught up in this! I do hope you are able to get Michaela the benefits she so clearly deserves as Michael's child.

  3. As a former public interest/public health lawyer, I would urge you to contact some of the local and fabulous law schools in L.A. to see if any of their students want to help research this for you. You could end up getting some great free advice that will at least get you going toward understanding things better and could save time (and thus money) with your lawyer (who you should definitely hire, by the way...but in the end it should hopefully be worth it as it seems your case is strong). Hope this helps!

  4. This is just wrong on so many levels!! She is HIS CHILD, period. I hope you get some answers, and quickly!!


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