Utah High Court To Hear Posthumous Benefits Case

Published February 7, 2012 9:54PM (EST)

SALT LAKE CITY (AP) — Utah's Supreme Court on Tuesday considered what it means to "parent" and whether a sperm donor contract is proof that a man wanted to be father, even after his death.

The question stems from a dispute between Gayle Burns and the Social Security Administration, which denied survivor benefits to the son Burns conceived after her husband died from cancer.

Oral arguments in the case were heard Tuesday in Salt Lake City, although it's not clear when justices might rule.

Michael Burns had contracted with a University of Utah reproductive clinic to preserve his sperm before he began treatment for cancer in 2000 — a decision he made specifically because he knew cancer treatments would leave him sterile, Gayle Burns told The Associated Press after the hearing.

Michael Burns died in 2001, and Gayle Burns became pregnant through artificial insemination in 2003. Their son, Ian, is now 8 years old, Gayle Burns said.

"We had discussed children. He wanted to be a dad," Gayle Burns said. "The intention was for me to have his child in the event of his death."

Social Security officials denied a benefits petition that Gayle Burns filed in 2005.

She appealed the decision through an administrative hearing and won, but it was reversed by Social Security appeals board that said the law doesn't allow for payments to posthumously conceived children.

Gayle Burns then challenged the ruling in Utah's federal court, and a judge said Utah's Supreme Court should consider the issue first because Social Security policies require consideration of individual state probate laws in deciding to award benefit.

Justices noted a distinct difference in the law between being providing DNA material — semen — to produce an offspring and choosing to become a parent and asked attorneys how they would define the term "parent."

Social Security Administration attorney Alexess Rea said the label requires both "DNA and financial support."

Utah law requires a sperm donor to have specifically stated an intention to "parent" a child conceived through assisted reproduction before death in order to in order to later be legally considered that child's father. Such intentions must be recorded in writing or in an electronic record.

In the Burns case, no such record exists and a contract with the clinic is insufficient proof of Michael Burns' intentions, Rea said.

"There needs to be an indication of financial support," Rea told the court.

The contract signed by Michael Burns only addressed his consent to assisted reproduction and gave the legal rights to his sperm to his wife in the event of his death, she said.

Michael Burns did check a box on the contract preventing the destruction of his sperm, but even that isn't enough to suggest that he intended to parent a child, Rea said.

"Then what would his status be?" Justice Ronald Nehring asked, noting an apparent circular nature to Utah's law. "What is he? Is he a stranger to this child?"

Burns family attorney William Hadley concedes that Utah's law requires the creation of a record but said the couple was not aware of the requirement. But Hadley told justices the clinic contract is littered with words and phrases like "offspring" and "contributing to a pregnancy" that leave little room for misunderstanding intent.

"He did not check 'destroy,'" Hadley told the court, noting that Burns also took out a life insurance policy to provide for the future financial needs of his wife and child.

In the absence of a written record, Hadley said the court should consider an "oral record" of conversations Michael Burns had with his wife, sister, mother and other family about his desire to be a father.

Those records have already been used by Utah's vital statistics office and a probate judge to recognize Michael Burns as Ian's father, Hadley said.

Hadley said he knows of about 100 cases similar to the Burns case across the U.S. He said justices may delay any decision in the case until after the U.S. Supreme Court hears arguments in one of those cases in March.

By Salon Staff

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