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July 08, 2008

Vermont Child Eligible for Nonbio Mom’s Benefits

The child of a lesbian couple living in Vermont is eligible to share in his nonbiological mother’s Social Security benefits, the Justice Department stated in a formal memorandum opinion issued on October 16, 2007, and made public only last month. “The Defense of Marriage Act would not prevent the nonbiological child of a partner in a Vermont civil union from receiving child’s insurance benefits under the Social Security Act,” the decision read.

The two women, known only as Karen and Monique, entered into a civil union in Vermont in 2002. In 2003, Monique gave birth to their first child, a son named Elijah. Karen, who is listed on Elijah’s birth certificate as his “second parent” in accordance with Vermont civil union law, became eligible for Social Security disability benefits in 2005. Soon after, she filed an application that, if approved, would grant ‘child’s insurance benefits’ to Elijah under Karen’s plan.

The application soon hit a federal roadblock, however. The Social Security Administration was stumped: Could the Defense of Marriage Act, which prohibits federal recognition of same-sex marriages, disqualify Elijah from receiving his nonbiological mother’s insurance benefits?

For an answer, the Social Security Administration turned to the Justice Department’s Office of Legal Counsel. Deputy Asst. Atty. Gen. Steven A. Engel, author of the memorandum, took a different look at the issue. To decide whether or not Elijah was eligible for Karen’s benefits, the Office of Legal Counsel first had to decide whether or not he was legally Karen’s child.

Engel used the Social Security Act to review “how the relevant State would define the parent-child relationship for purposes of inheritance law.” Looked at this way, Vermont law dictated that Elijah, as Karen’s heir, was most certainly her child.

Engel went on to compare Karen and Monique to heterosexual families in similar situations. “Courts have regularly found that a child born by artificial insemination should be deemed to be the child of the husband, even if there is no biological connection.” (Hannah Clay Wareham, The Advocate) 

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