Reproductive Legal Update: July 2009

This month’s update focuses on two decisions out of California addressing the rights of children after the death of a parent. In the first case, twin children sought a share of their father’s inheritance after he failed to provide any support to them during his lifetime. The twins were conceived during the marriage of their mother and father, but the father filed for divorce prior to their birth. In the second case, a wife extracted and froze the sperm of her husband shortly after his death. She used the sperm to create embryos and have his biological child. When the wife and daughter sought survivor’s benefits from the Social Security Administration, they were denied.

In California, twin children carried and delivered by a surrogate sought and were denied support payments to be paid out of the deceased father’s estate. Back in November of 1993, a married couple, Harold Farb and Julie Benveniste Farb contracted with a surrogate mother to have a child. The contract was drafted and executed in California and was governed by California law. In January 1994, the surrogate was confirmed pregnant with twins due in early October of that year. Prior to their birth, Harold Farb commenced divorce proceedings. Allegedly, Harold threatened that he would use his substantial financial and political power to obtain full custody of the children and deny her access to the children if she revealed the surrogacy arrangement to the family court adjudicating the divorce. For that reason, Julie Benveniste Farb did not make the family court aware of the impending birth of the twins. When the twin children were born on September 20, 1994, Harold Farb and Julie Benveniste Farb were named as the parents of the twins on their birth certificates. Julie raised the children and provided them with support. Harold provided no financial support for them.

On October 10, 2006, Harold passed away in Texas and his estate was estimated to exceed $120 million. On October 31, 2007, the children brought an action in Los Angeles Superior Court against Harold Farb’s estate seeking damages equal to the benefits that they believed he was contractually, morally, ethically, and legally obligated to provide to them as the father. They asserted causes of action for breach of contract and for fraud.

Harold Farb’s estate argued, and the children conceded, that they could not successfully assert the cause of action for fraud. The trial court allowed the case to continue based on the breach of contract cause of action. The estate appealed this decision and won. The Second Appellate District, Court of Appeal of the State of California concluded that the children failed to bring the breach of contract cause of action within the allowable time period, namely one year from the date of Harold Farb’s death.

Also in California, the U.S. Ninth Circuit Court of Appeals upheld a ruling denying a daughter access to the Social Security benefits of her deceased father. The daughter was conceived after his death with sperm extracted and frozen upon his death. Gabriela and Bruce Vernoff were married for five years when Bruce passed away in July 1995. After his death, Gabriela Vernoff arranged for the extraction of Bruce’s semen for future use. At the time of his death, the couple was childless and, as the court specifically noted, there was no evidence that Bruce had consented to the procedure or expressed an interest in having a child postmortem.

Gabriela Vernoff first filed a claim on behalf of her daughter, Brandalynn, with the Social Security Administration in October of 1999, seeking child survivor benefits. Her claim was denied by the Social Security Administration and, on appeal, by an Administrative Law Judge. Ms. Vernoff next appealed to the district court. In the interim, the Ninth Circuit Court of Appeals decided a case with similar facts and the district court remanded the Vernoff’s case to the Social Security Administration for reconsideration based on the Ninth Circuit’s decision. The Social Security Administration reaffirmed its final decision against the Vernoffs, the district court affirmed the Social Security Administration’s decision and the Vernoff’s case went up to the Ninth Circuit Court of Appeals.

The Ninth Circuit Court of Appeals concluded that Gabriela and Brandalynn Vernoff did not demonstrate that Brandalynn was entitled to receive benefits under the Social Security Act. First, she needed to show that she was a “child” of Bruce Vernoff under the Act. Second, she needed to show that she was financially dependent upon Bruce Vernoff at the time of his death. The Court applied California law to these two criteria and found that although Brandalynn is the “child” of Bruce Vernoff she could not establish her dependency on him at the time of his death.

Under California law, dependency can be established in three ways. First, showing actual dependency at the time of the insured’s death. As Brandalynn was not born at the time of Bruce Vernoff’s death, she could not establish dependency this way. Second, establishing that the insured is a “parent” under California Law, thereby showing that the child is both legitimate and dependent. California law does not allow the simple fact of biology to establish Bruce Vernoff as a parent. In addition, although California law will presume that a father is a natural parent under some circumstances, the Vernoff’s situation did not fit within any of the legally recognized circumstances. Also, the Court noted that a decedent’s consent to post-humous conception can be a basis for establishing natural parenthood – but there was no evidence of Bruce Vernoff’s consent. Finally, Brandalynn could demonstrate dependency by showing that she can inherit from her father under California intestacy laws. The Court noted that Brandalynn was conceived nearly three years after Bruce Vernoff’s death and was conceived seemingly without his consent. Therefore, she did not fit within any of the categories of intestate succession under California law.

Gabriela and Brandalynn Vernoff also argued that the Social Security Administration’s decision to deny Brandalynn her biological father’s survivor benefits violated the Equal Protection Clause of the Fifth Amendment. The Court was not persuaded by this argument.

For all of these reasons, the Ninth Circuit Court of Appeals affirmed the Social Security Administration’s decision to deny benefits to Brandalynn Vernoff.

By: Melissa B. Brisman. An attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Park Ridge, New Jersey, offering a full range of services, including matching carriers with intended parents. Melissa Brisman can be reached at .(JavaScript must be enabled to view this email address) and http://www.reproductivelawyer.com.

By: Lauren Cuozzo. An attorney licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Cuozzo can be reached at .(JavaScript must be enabled to view this email address).

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Reproductive Legal Update: July 2009

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