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