PR: Title II Regional Chief Counsel Precedents
TN 47 (07-18)
A. PR 18-081 Can a Child Carried by a Surrogate Qualify for Benefits from Intended Mother in Pennsylvania
Date: April 27, 2018
1. Syllabus
Pennsylvania currently does not have a statutory scheme governing surrogacy arrangements, nor has the Pennsylvania Supreme Court addressed the issue of surrogacy. In the absence of a statutory scheme, the Pennsylvania Department of Health outlined procedures in assisted conception births for placing the names of the intended parents on the baby’s birth certificate. The procedure entails obtaining a court order directing that the intended parents be listed on the birth certificate and providing a report containing certain information from the intended parents.
In this case, it seems unlikely that number holder (NH) would be considered to be the claimant’s legal parent because there is no written surrogacy agreement or contract. There is also no evidence that the NH attempted to follow Department of Health procedures to have her name designated on the claimant’s birth certificate, nor did she appear to profess any intention to do so.
Based upon the information provided, there is no evidence that the claimant is the NH’s natural child, stepchild, adopted child, or equitably adopted child.
2. Opinion
QUESTIONS PRESENTED
On April 3, 2018 you asked for our opinion as to whether a child, A~ (“Claimant”), can receive benefits based on the earnings record of Number Holder and Intended Mother 1 D~ (NH), when that child was conceived via artificial insemination using the sperm of C~, NH’s husband, and carried by G~, a traditional surrogate 2 who was NH’s sister.
SUMMARY
Based on our review of the information you have provided, it is our opinion that on this record, Claimant has presented insufficient evidence to demonstrate a parent-child relationship under the laws of the Commonwealth of Pennsylvania. Therefore, we conclude that A~ can not be considered NH’s child under Pennsylvania law and is therefore not entitled to receive benefits based on NH’s earnings record.
BACKGROUND
On December XX, 2017, C~ filed an application for child’s insurance benefits, survivor claim, on behalf of Claimant based on the NH’s earnings record.
C~ and the NH were married on September XX, 1995. According to the information provided to us in your email requesting our opinion in this matter, C~ stated that NH was unable to bear children, so they arranged for NH’s sister, G~, to be impregnated with C~’s sperm and to act as a traditional surrogate for the couple. No medical or other evidence regarding this procedure was submitted.
G~ gave birth to Claimant on October XX, 2011, and the birth certificate lists G~ and C~ as her mother and father. At Claimant’s first medical appointment five days after her birth, NH was listed on the pediatrician’s records as Claimant’s mother. According to C~, Claimant lived with him and NH from the time she was born, and he and NH raised Claimant as their own. C~ submitted an August XX, 2013 lease listing himself, NH, and Claimant as tenants as evidence of their cohabitation. G~ is also listed on that lease as a tenant.
Additional evidence submitted by C~ includes the couple’s 2016 joint tax return listing Claimant as a dependent and identifying her as “daughter,” and NH’s November XX, 2011 DIB application listing Claimant as her child.
There is no evidence that NH legally adopted Claimant, that she had started the adoption process, or that NH, G~, and C~ had a written surrogacy agreement. NH died on October XX, 2017. At all relevant times, NH was domiciled in Pennsylvania.
DISCUSSION
The Social Security Act (the “Act”) and implementing regulations provide that surviving child’s benefits may be granted based on the earnings record of a fully insured individual if the child, as defined in 42 U.S.C. § 416(e), has:
(1) filed an application for child’s insurance benefits;
(2) was unmarried at the time of application;
(3) was under the age of eighteen; and
(4) was “dependent” upon the insured.
42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2013).
Under the Act and regulations, the term child means a natural child, legally adopted child, stepchild, 3 grandchild, stepgrandchild, or equitably adopted child. See Section 216(e) of the Act, 42 U.S.C. 416(e); 20 C.F.R. § 404.354. Section 402(d)(3) of the Act further provides that a child may be deemed to be dependent, and therefore, the legitimate child of the insured, if she satisfies the provisions of 42 U.S.C. §416(h)(2)(A) (would be able to inherit personal property from an intestate NH according to the law of the state where the NH was domiciled at the time of death). Two other alternatives, outlined in § 416(h)(2)(B) 4 and § 416(h)(3), 5 are inapplicable here.
Because NH was domiciled in Pennsylvania at the time of her death, Pennsylvania inheritance law governs the determination of whether Claimant could inherit NH’s personal property intestate as her child. 20 C.F.R. §§ 404.355(a)(1), 404.355(b)(1). Pennsylvania law provides that personal property can pass from a parent to their issue (or legally adopted child) through intestate succession. See 20 Pa. Const. Stat. Ann. §§ 2103, 2108 (West 2017). The word “issue,” “[a]s applied to the descent of estates, means all lawful, lineal descendants of a common ancestor.” See 1 Pa. Const. Stat. Ann. § 1991 (West 2017).
A. Evidence that NH Acted In Loco Parentis Alone Does Not Confer Inheritance Rights on Claimant.
Pennsylvania law does not provide for inheritance by an individual with custody or in loco parentis status. In In re Estate of Hoffman, 466 A.2d 1087 (Pa. Super. Ct. 1983), the Pennsylvania Superior Court held that a foster child raised by relatives is not “issue” as that term is defined by Pennsylvania’s laws of intestate succession, even if the child is held out to the community as the relatives’ own. In Bahl v. Lambert Farms, Inc., 819 A.2d 534 (Pa. 2003), the Pennsylvania Supreme Court determined that a man born out of wedlock, raised by his grandparents but held out to the world as their natural child (thus creating an in loco parentis relationship), was not entitled to inherit a share of his grandparents’ estate. The court, interpreting a previous version of the Pennsylvania intestacy statute, explained “it is apparent that the General Assembly intended, as a general rule, to limit ‘issue’ to those in the decedent’s blood line and did not intend to include as first degree ‘issue’ individuals without the requisite consanguinity who had merely been treated like, or held out as, the decedent’s children.” Bahl, 819 A.2d at 538. 6
Thus, the fact that NH acted in loco parentis and held Claimant out to be her child is not enough to establish the necessary relationship to allow Claimant to inherit from NH, nor have the right to receive child’s benefits.
B. Claimant Has Not Demonstrated That She Was NH’s Legally or Equitably Adopted Child For the Purpose of Benefits Under the Act.
A child may also be eligible for benefits as the insured’s child if he or she was legally adopted by the insured. 20 C.F.R. § 404.356. The laws of the State where the adoption took place apply to determine if a child has been adopted. Id. Claimant has not alleged that NH legally adopted her, and there is no evidence indicating that she was legally adopted. Thus, Claimant cannot be considered the NH’s legally adopted child for purposes of the Act.
In addition to being eligible for benefits as an insured’s child via legal adoption, a child may also be eligible for benefits as the insured’s child if he or she was equitably adopted. 20 C.F.R. § 404.359. A child may be equitably adopted where the insured agreed to adopt the child, but the adoption did not occur. 20 C.F.R. § 404.359. The agreement to adopt must be one that would be recognized under state law so that the claimant would be able to inherit a child’s share of the insured’s personal property if she were to die without leaving a will. Id. “The agreement must be in whatever form, and [the clamant] must meet whatever requirements for performance under the agreement, that State law directs.” Id.
In order to establish an equitable adoption, Claimant must meet the following requirements: (1) an express 7 contract to adopt the child usually between the adopting parent and the child’s biological parent; (2) legal consideration for the adopting parent’s promise to adopt; (3) in some states, a promise by the adopting parent to give the child inheritance rights; (4) surrender of the child to the adopting parent such that the person placing the child does not retain the right to exercise any control or supervision over the child; (5) performance by the child under the contract; and (6) sufficient lapse of time so that child could have been legally adopted under applicable state law.
POMS GN 00306.175(C), .180, .185, .190, .200, .205, .210.
There is no common law adoption in Pennsylvania, but Pennsylvania courts have recognized equitable adoption as a valid means of granting inheritance rights to children in limited circumstances. See Kilby v. Folsom, 238 F.2d 699, 700 (3d Cir. 1956); POMS GN 00306.225. For example, in Kilby, the court found that an equitable adoption had occurred where the adoptive parents had entered into a written agreement manifesting their intent to adopt an infant child and thereafter treated the child as their own including providing clear evidence that the child could share in the estate of the adopting parents. Kilby, 238 F.2d at 701-02. On the other hand, in Hashem o/b/o Joseph v. Celebrezze, 226 F. Supp. 450, 452 (E.D. Pa. 1964), the court found that an equitable adoption had not occurred where there was no impediment to an adoption for many years, but the insured took steps to effectuate adoption only upon learning that disability benefits might be available through adoption.
Here, there is insufficient evidence that NH was Claimant’s mother via equitable adoption. In the first instance, there is no evidence of any written agreement to adopt Claimant, nor is there any evidence that NH took any steps to effectuate a legal adoption in the six years between Claimant’s birth and NH’s death. That said, there is some evidence that G~ surrendered Claimant to NH: NH was listed as Claimant’s mother in medical records; NH claimed her as a dependent on her taxes; and NH listed Claimant as a child on her DIB application, However, this existing evidence is complicated by the fact that G~ also apparently lived in the same household as Claimant and NH, as shown by the lease submitted by C~. In the absence of anything to establish that NH had a written agreement to adopt Claimant or took steps towards adopting her, Claimant has not shown that she had a parent-child relationship as a result of a legal or equitable adoption by NH.
C. Claimant Has Not Demonstrated That She Was Legally NH’s Child Via a Surrogacy Agreement For the Purpose of Benefits Under the Act.
Unlike other states, Pennsylvania currently does not have a statutory scheme governing surrogacy arrangements, nor has the Pennsylvania Supreme Court addressed the issue of surrogacy. The Pennsylvania Superior Court has addressed surrogacy arrangements in only two opinions. In the first, J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006), the court held that a gestational surrogate 8 who had a written surrogacy contract with the biological father lacked standing to seek custody and remanded the case with instructions to award full custody to the biological father. The status of the intended mother, who was not a party to the contract or to the lawsuit, was not addressed.
See id.
More recently, the Pennsylvania Superior Court addressed the issue of surrogacy in In re Baby S., 128 A.3d 296 (Pa. Super. Ct. 2015). In that case, the intended parents, then a married couple, hired a lawyer and executed multiple contracts governing surrogacy issues, including a contract with the gestational surrogate in which they agreed to arrange for their names to be placed on the child’s birth certificate and to take legal responsibility for the child. Id. at 298-300. They began the process of seeking a court order designating them as the child’s parents on the birth certificate, 9 but the intended mother ultimately refused to sign the paperwork because she and her husband were having marital difficulties. Id. at 301. A few weeks before the child was born, the gestational surrogate filed a petition seeking a court order declaring the intended parents to be the legal parents of the child. While the intended father willingly took physical custody of the baby, the intended mother, now no longer in a relationship with the intended father, challenged the petition, arguing that the surrogacy contract was void and unenforceable as against public policy. Id.
Despite the intended mother’s arguments, the Pennsylvania Superior Court affirmed the lower court’s holding that surrogacy agreements are not void as against public policy, noting the “growing acceptance of alternative reproductive arrangements in the Commonwealth,” as evidenced by case law enforcing a contract addressing the parental obligations of sperm donors, the Department of Health’s longstanding procedures facilitating alternative reproductive arrangements, and the absence of any contrary legislation. Id. at 305-06. The court then held that the intended mother was the legal mother of the child, and that formal adoption proceedings are not the only route to legal parent status, pointing to the common use of Department of Health procedures for “ensur[ing] that intended parents acquire the status of legal parents in gestational carrier arrangements.” Id. at 306-07.
Thus, Baby S. seems to have identified two possible paths to becoming a legal parent to a non-biological child outside the formal adoption process. First, although the court did not expressly rule on their legitimacy, the Baby S. court recognized that the Pennsylvania Department of Health has established procedures that have been widely used to facilitate the designation of intended parents as birth parents on a child’s birth certificate without a formal adoption proceeding. Here, NH did not pursue that option, as is clear from Claimant’s birth certificate.
Second, the Baby S. court held that a contractual agreement can lead to legal parent status. This second path seems similar to equitable adoption, in that the contracts in question in Baby S. were written agreements that provided that the intended parents would be legally responsible for the child, that they would follow Department of Health protocol to have their names placed on the child’s birth certificate, and that neither the gestational mother nor the egg donor had any legal rights or obligations with respect to the child (i.e., that they agreed to surrender the child to the intended parents). 128 A.3d at 298-300. Because of this strong parallel, it seems unlikely that NH would be considered to be Claimant’s legal parent via a surrogacy agreement for the same reasons she would not be considered to have equitably adopted Claimant: there is no written surrogacy agreement or contract. There is also no evidence that NH attempted to follow Department of Health procedures to have her name designated on Claimant’s birth certificate, nor did she appear to profess any intention to do so. 10
In summary, based upon the information provided, there is no evidence that Claimant is a natural child, stepchild, adopted child, or equitably adopted child of the NH under the Act.
CONCLUSION
For the reasons stated above, it is our opinion that a Pennsylvania court would likely find that Claimant has not presented sufficient evidence to demonstrate a parent-child relationship under the laws of the Commonwealth of Pennsylvania. If C~ supplies additional information, such as a written surrogacy contract to which NH was a party, we would be happy to review this claim again.
Footnotes:
. The term “intended mother” refers to the woman who ultimately intends to parent a child conceived through a surrogacy arrangement.
. The term “traditional surrogate” refers to a surrogate mother who carries a child intended to be raised by others and conceived with her own egg, rather than a donated egg, making her both the biological and gestational mother of the child.
. In order to establish a stepchild relationship, the relationship must have been created by the insured’s marriage to the biological parent or adoptive parent after the child’s birth; or when a child, who was conceived before their parent’s marriage to the insured (who is not the child’s biological parent), was born after that marriage; or when the child was adopted before their adoptive parent’s marriage to the insured. 20 C.F.R. § 404.357; POMS GN 00306.230(A)(1).
Here, Claimant was conceived and born after NH and C~ (Claimant’s biological father) had been married for 16 years. To be considered a stepchild, the child must have been conceived or born prior to the stepparent’s marriage to the biological or adoptive parent. Therefore, Claimant was not the stepchild of NH, despite Claimant’s biological relationship to NH’s husband.
. Section 416(h)(2)(B) provides that if a child is not deemed to be a child under section 416(h)(2)(A), then the child may be deemed to be the child of the insured if the mother or father went through a marriage ceremony resulting in a purported marriage, which, but for a legal impediment, would have been a valid marriage. This provision does not apply here.
. Section 416(h)(3) provides that an applicant who is the daughter of a fully insured individual, but who is not the child of the insured under 416(h)(2), shall, nevertheless, be deemed to be the child of a deceased insured (1) if the insured had acknowledged in writing that the applicant was her child, had been decreed by a court to be the parent of the applicant, or had been ordered by a court to contribute to the support of the applicant and such acknowledgement was made before the death of the insured; or (2) the insured is shown by evidence satisfactory to the Commissioner to have been the parent of the applicant and the insured was living with or contributing to the support of the applicant at the time the insured died. Although at first glance, it appears that Claimant may satisfy this section because NH acknowledged Claimant in writing and was living with her and contributing to her support at the time of her death, this section has been construed to apply only to biological children. POMS GN 00306.100(A)(1) (stating that under Section 416(h)(3), “the biological son or daughter of a NH may be deemed to be his/her child for benefit purposes regardless of the child’s status under state law” if certain requirements are met) (emphasis added). It is undisputed that Claimant was not NH’s biological child.
. Although the rule in Bahl was amended by the Pennsylvania legislature to state that legally adopted children should be included within the meaning of the term “issue,” see 20 Pa. Cons. Stat. Ann. § 2108 (West 2017), the propositions set forth in Bahl otherwise stand. As mentioned by the dissent in Peters v. Costello, 891 A.2d 705, 720 (2005), a case where the majority of the Pennsylvania Supreme Court found that grandparents who were in loco parentis had standing to file a petition to seeking visitation with their grandchild, “[s]hould appellees [the grandparents] die intestate, neither mother nor child will be recognized as an heir entitled to a share of their estate.”
. In some states, an implied contract to adopt or an oral agreement to adopt is sufficient, but a written agreement is required in Pennsylvania for equitable adoption. See POMS GN 00306.225.
. The term “gestational surrogate” refers to someone who carries a child pursuant to a surrogacy agreement but who is not biologically related to that child.
. In the absence of a statutory scheme, over 20 years ago the Department of Health established procedures that intended parents may follow prior to a child’s birth to be named as the child’s parents on the child’s birth certificate. See Baby S., 128 A.3d at 301 n. 1, 305 (noting that the Pennsylvania Department of Health has “outlin[ed] procedures in assisted conception births for placing the names of the intended parents on the baby’s birth certificate,” that the procedure entailed obtaining a court order directing that the intended parents be listed on the birth certificate and providing a report containing certain information from the intended parents, and that this practice had been in place for 20 years).
. Moreover, this case is made more complicated by the fact that the gestational mother, G~, is also the biological mother of Claimant. In Baby S., that was not the case, 128 A.3d at 298-300, and in J.F., the gestational surrogate’s lack of biological relationship to the child weighed heavily in favor of denying her standing to pursue a suit for custody, 897 A.2d at 1280. Indeed, in J.F., the court noted that the egg donor (i.e., the biological mother of the child) was an indispensable party to a suit to determine the legal mother of the child. Id. at 1278.