Speaking of Women's Rights: The Benefits of Being Family

Thursday, June 25, 2009

The Benefits of Being Family

When does, and when should, the law recognize economic value we impart to our families through caregiving – whether it is for elder parents, children, spouses or partners, or others we consider family?

Often these issues turn on how one defines “family.” Recent headlines featured a case, Vernoff v. Astrue, in which the Ninth Circuit ruled that a 10-year-old girl who was conceived from a man’s frozen sperm four years after the man died was not entitled to Social Security survivor benefits. After the man had died suddenly from an allergic reaction, the widow had his sperm extracted and later used it to become impregnated. In a nutshell, the court ruled that the girl was not a dependent at the time of his death as defined by Social Security law, and there was no evidence of consent to the artificial insemination, as required by California law to establish paternity.

The unusual facts give rise to many interesting questions, such as “wow, can you really remove viable sperm from a dead man?” and “is it ethical to remove sperm without the patient’s consent?” But I also found myself asking about the policy implications – was this the correct result, from the perspective of the Social Security program and the intended purpose of survivor benefits? The girl never in fact depended on the deceased. Should she have been allowed to recover financially based merely on genetic link?

Another case currently pending before the Washington Supreme Court, Armantrout v. Carlson, raises a related question about whether parents can recover after losing a daughter who was providing caregiving services. The Armantrouts’ adult daughter died after complications arising from ankle surgery. Her services to the parents, particularly the blind mother, including driving her places and taking notes for her classes, that had economic value. The question before the court is whether such services, provided for free, constituted financial support, so that the parents were “financially dependent” on the daughter and may recover for what they claim was her wrongful death.

These same kinds of questions come up under a variety of areas of law, such as family law, when courts decide during dissolution proceedings what is an equitable property division, based on a spouse’s relative contributions to the relationship.

Should the law place an economic value on the caregiving and other family responsibilities that often come with a family relationship? When is giving care to our families something that should be compensated or accounted for economically – for example, to determine the “replacement cost” of a mother’s domestic work or even to calculate a nation’s gross domestic product? Would formal caregiving contracts between elderly parents and their adult children provide useful protections for both?

These aren’t easy questions, but we at Legal Voice do know this: we believe that families exist in different forms, whether different-sex or same-sex, inter-generational, single-parent, or child-free, and we believe all should be equally recognized and protected by the law. We’ll continue to fight to ensure that courts consider the real-life impacts, financial and otherwise, of their decisions on those families –however defined – who are involved.