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Government Refusing to Support Child Conceived After Father’s Death

July 27, 1995

WASHINGTON (AP) _ The Social Security Administration is refusing to pay survivor’s benefits to a Louisiana girl conceived after her father died, in a case that raises questions about the impact of reproductive medicine on the government’s largest social program.

Social Security argues that Judith Christine Hart is not entitled to her father’s Social Security benefits because she was never dependent on him.

Judith was conceived from the frozen sperm of her father, Edward William Hart Jr., three months after he died from cancer of the esophagus in 1990. She was born 10 days short of the first anniversary of his death.

An administrative law judge ruled in May that Judith was clearly Hart’s child and was entitled to his Social Security benefits.

Social Security’s appeals council, however, believes the judge may have made a serious error in law and that benefits should not be paid to the 4-year-old girl from Slidell, La.

Judith’s mother, Nancy Hart, and her attorneys were notified of the decision Thursday. The appeals council now reviews the case and will issue a final decision in about 90 days.

Should it conclude that the administrative law judge erred in awarding benefits, the only recourse for Judith’s mother would be to appeal to federal court, a step her attorneys have already begun.

Mrs. Hart, an Episcopal church organist and school music teacher, said late Thursday: ``I am so angry I can hardly think.″

``My husband and I planned this child and I don’t feel government can step in and say how you reproduce, or when,″ she said. ``We’re not going to get rich off Social Security. It’s not the money; it’s the principle of the thing. How dare someone step into my private life like this.″

Both sides say the case raises questions about whether the rules surrounding Social Security, which dates from the Depression, are keeping up with advances is reproductive medicine on the eve of the 21st century.

Social Security argues that under current law, children must demonstrate that they were dependent on a deceased worker in order to qualify for survivor’s benefits, and that Judith fails the test because she was conceived after Hart’s death.

The agency also notes that there isn’t a single state in the country that would recognize Judith as having inheritance rights.

``The controversy regarding Judith Hart’s eligibility for Social Security survivor’s benefits is not about whether she is the biological daughter of Edward Hart, but more a question about her dependency on her deceased father,″ said Social Security Commissioner Shirley Chater.

``Such dependency is the crux of a child’s eligibility for monthly Social Security survivor benefit payments,″ Chater said.

But Kathryn Kolbert, Hart’s lawyer, said Judith is the daughter of Edward and Nancy Hart, and ought to be recognized as such by the government.

``Judith’s is Edward’s child, and law has to catch up with that reality,″ Kolbert said, calling Thursday’s decision ``one more setback but, not by any means, the last word.″

Kolbert is vice president of the Center for Reproductive Law & Policy in New York, a public interest law firm specializing in litigation involving reproductive issues.

Just under 2 million children of deceased workers receive survivor’s benefits from Social Security, with the average monthly payment totaling $450.

Judith’s payments, based on her father’s work history, would be closer to $700 a month, and if she ultimately wins her case she would be entitled to a lump sum payment worth up to $30,000, according to an agency estimate.

The government pays survivor’s benefits to age 18, 19 if the child is still in high school. Judith’s total benefits would be worth at least $150,000, excluding cost-of-living increases.

Chater said that Social Security is reviewing all laws and policy-related issues raised by the case, apparently the first of its kind for the agency, and that changes in laws and regulations may be necessary because of recent advances in reproductive medicine.

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