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Outside editorial: Zygotes with benefits

Posted: March 27, 2012 - 12:09am

The following editorial appeared in the Los Angeles Times:

The Supreme Court heard arguments Monday in a case titled Astrue v. Capato, but a better name for it might be “In re: Brave New World.”

Karen Capato, who conceived twins through artificial insemination after their biological father died, asked the justices to overrule the Social Security Administration and hold that the children are entitled to survivor benefits. As Justice Samuel A. Alito Jr. pointed out, the authors of the Social Security Act “never had any inkling about the situation that has arisen in this case.”

But the fact that Congress couldn’t foresee the world of sperm banks and test tube babies doesn’t mean that the statute is meaningless. It’s possible to discern a general principle in the law, and the court should apply that principle by rejecting the twins’ claim.

Astrue v. Capato has attracted attention as an example of the way technological advances will bedevil the work of the Supreme Court, an early milestone on a road that may someday have the justices deciding whether robots are people under the 14th Amendment.

But the case illustrates more than the fact that yesterday’s science fiction is today’s science fact. It also illuminates the distinction between two approaches to judicial interpretation that are often treated as interchangeable: “original intent” and “original meaning.” The former means that judges should apply a legal text only to circumstances its authors could foresee. But that’s not a particularly helpful approach.

The framers of the 4th Amendment didn’t have telephones in mind when they prohibited unreasonable searches and seizures, so they couldn’t have intended the amendment to apply to wiretapping. Yet the Supreme Court was right to recognize that the meaning of that amendment — the protection of privacy — required that police obtain a warrant before listening in on telephone calls.

In a similar way, Congress had a general purpose in mind in 1939 when it provided for survivor benefits for the children of Social Security participants: to replace the income the children had received from a parent during his life. That purpose didn’t change when Congress amended the law in 1965 to broaden the definition of eligible children to include those born out of wedlock who were acknowledged or being supported by their parents.

By definition, a child conceived and born after a parent’s death never relied on his or her financial support, so there’s no reason that child should be entitled to survivor benefits. If the court focuses on the meaning of the law, that’s the reasonable conclusion.

And if Congress thinks that’s unfair and prefers to protect progeny born years or decades after a parent’s death, it can amend the law for a brave new world.

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