This essay uses Astrue v. Capato as a platform to examine how liberty and equality interact within parent-child relationships. It observes that as prospective parents have experienced an increase in liberty due to new reproductive technologies the children they create have not necessarily experienced a commensurate increase in equality. The law’s myopic focus on parent-child relationships rather than provider-dependent relationships renders posthumously conceived children unequal along multiple dimensions. They may have not only one provider, but also only one parent. This essay argues that shifting the law’s focus away from identifying parents and towards identifying providers would mitigate the status inequality that posthumously conceived children currently experience without (necessarily) altering the allocation of benefits. The Capato case would have had a very different legacy if, instead of determining whether the twins were Robert Capato’s “children,” the Social Security Administration had simply determined whether they were his “dependents.” This proposal fits with recent challenges to traditional notions of parentage.
Liberty, Equality, and Parentage in the Era of Posthumous Conception,
27 J.L. & Health
available at https://engagedscholarship.csuohio.edu/jlh/vol27/iss1/4