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Toddler Conceived After Father’s Death Entitled to Benefits

May 31, 1995

NEW ORLEANS (AP) _ A touch of sadness tinged Nancy Hart’s jubilance after hearing that the daughter conceived after her husband’s death is entitled to his Social Security benefits.

``I’m so excited I can hardly stand it. I can’t believe that this is finally over. Judith and I can get on with our lives,″ Mrs. Hart said Tuesday.

``I guess it’s time to start mourning my husband,″ she added. ``I haven’t had time to do that yet.″

Edward William Hart Jr. stored his sperm because he and his wife wanted children, and doctors told him chemotherapy might leave him sterile. Shortly before he died in 1990, Mrs. Hart said, he reminded her of the frozen sperm and said, ``There could always be a child for you.″

Within weeks of Hart’s death from cancer of the esophagus, Mrs. Hart visited a fertility expert. Judith Christine Hart was born 10 days short of the first anniversary of her father’s death. Her fourth birthday is Sunday.

Louisiana does not recognize a child born after a parent’s death as an heir. It also requires papers seeking legal recognition of paternity to be filed within a year of the father’s death.

Since federal law relies on states to decide who should get Social Security benefits, Judith was found ineligible.

But in a decision received Tuesday at the Center for Reproductive Law and Policy in New York, which represented Mrs. Hart, Administrative Law Judge Elving Torres wrote that all of the evidence shows Judith is Hart’s child and was conceived at his wish.

The judge also wrote that in a Texas case, the U.S. Supreme Court found the one-year limit for filing paternity papers is too short and violates the constitutional guarantee of equal protection.

Mrs. Hart’s lawyer, Kathryn Kolbert, said the ruling could mean a $9,000 to $10,000 lump-sum payment for Judith and about $700 a month after that. But the amount is not settled; the government has two months to ask the Social Security Administration’s appeals council to hear the case.

Ms. Kolbert said no state recognizes a child conceived after the father’s death as legitimate. ``The ruling demonstrates that with enough prodding and pushing of the legal system, the law can keep pace with medical science,″ she said.

Mrs. Hart, a kindergarten teacher in suburban Slidell, said she had a hard time finding a lawyer before the Center for Reproductive Law and Policy took the case for free.

``No one wanted to take the case because it was so complex and there wasn’t much money at stake,″ she said. ``But it’s important for me because it’s a civil rights issue.″

The ruling does not settle a federal lawsuit asking to have Judith named her father’s legal heir in Louisiana. It was filed as a parallel attempt to win Social Security benefits for Judith; Hart’s two adult children by a previous marriage support Judith’s claim and there is no argument over Hart’s estate.

Ms. Kolbert said no decision has been made on whether to pursue the lawsuit if the appeals council upholds Torres’ ruling.

``I just know Sunday will be a wonderful birthday party,″ Mrs. Hart said. ``We’ll be with my husband’s family _ we always have a party at their home.″