When the Social Security Act was being written by Congress in 1939, no one thought that it might be possible to conceive a child posthumously. In 2003, 18 months after the death of her husband, Karen Capato, a Florida resident, gave birth to his (her husband’s) twins (see article). Robert, Karen’s husband, preserved his sperm in a sperm bank and gave written consent for its use by his wife before he died.
After her husband’s death, Karen applied for social security survivor benefits for the twins, but was denied because Florida laws recognize the eligibility of inheriting property only if the children who are to inherit property are named in a last will and testament. This apparently also translates into an ineligibility of the twins to receive survivor benefits. Robert could not have written the twins into his will because he did not know that they were going to exist at some point in the future. Regardless of whether or not he discussed possibilities with his wife, he had no way of knowing the genders or the number of children he would father posthumously.
There is, to my mind, a question of whether Karen’s twins can really be called “survivors” since they did not literally survive their father. And since it was Karen’s own choice to have them after her husband was already dead, perhaps counting on survivor benefits for aid was a tad premature and maybe even irresponsible. These worries aside, however, it is interesting to live at a time when technological advances create such problems for the legal system. After all, there is no question regarding biological parentage in this case. Half of Robert’s DNA had been willingly transferred to a future generation.
While thinking about what sorts of people there should be, we think in terms of human variation. However, we don’t always stop to consider why a variety of humans are “people” in the first place and what exactly makes them into “people.” It would be difficult (and likely hopelessly so) to argue that a sperm cell is a person. And yet, at the time of conception, that was all that remained of Robert. I would think that it would be absurd to insist that Karen’s twins are essentially fatherless (it is true that their father is dead, but it is not the case that they have not been fathered). It would be equally absurd to think of the doctors who prepared the fertilized egg as fathers (the medical team has no parental responsibilities toward the twins). Although the twins were not a result of sexual intercourse between Robert and Karen, their conception is an instance of sexual reproduction (Robert’s and Karen’s genetic material is present in equal proportions in the resulting offspring). So when asked who their parents are, the twins should refer to Robert and Karen and not just Karen or Karen and the hospital staff or even more absurdly to Karen and Robert’s sperm. So did Robert father the twins? I’d say he did! If that’s the case, then does he qualify to be represented under the general question of what sorts of “people” there should be? When we think about human variation, do the dead count? I think they do! If, by recognizing all kinds of people as “people,” we implicitly assume that we have duties toward them, then by making conceptual space for Robert and other deceased individuals (this also includes all of us at some point), we ought to recognize our duties toward the dead. Perhaps that should inform the court’s decision in the case of the twins even if they are not literally “survivors.”