Vernoff v. Astrue ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIELA VERNOFF, on her own 
behalf and on behalf of her minor
child BRANDALYNN VERNOFF,
Plaintiff-Appellant, No. 08-55049
v.
 D.C. No.
CV-04-03237-CJC
MICHAEL J. ASTRUE, of Social
Security, in his official capacity, OPINION
and his employees, agents and
successors in office,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
May 6, 2009—Pasadena, California
Filed June 17, 2009
Before: Cynthia Holcomb Hall, Andrew J. Kleinfeld, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Hall
7177
VERNOFF v. ASTRUE 7181
COUNSEL
James T. Raetz and Wallace R. Vernoff, Coulter Vernoff &
Pearson, Pasadena, California, for the appellant.
Gregory G. Katsas, Assistant Attorney General, and Kelsi
Brown Corkran, Attorney, Civil Division, Department of Jus-
tice, Washington, D.C. for the appellee.
OPINION
HALL, Circuit Judge:
Gabriela Vernoff (“Vernoff”), on her own behalf and on
behalf of her minor child Brandalynn Vernoff
(“Brandalynn”), appeals the district court’s summary judg-
ment in favor of the Commissioner of the Social Security
Administration’s (“SSA”) denial of her claim for child survi-
vor benefits. The SSA determined that Brandalynn did not
meet the eligibility requirements because she could not estab-
lish that she was dependent upon the deceased insured at the
time of his death under California law, due to her posthumous
conception. Vernoff also appeals the district court’s denial of
her claim that the SSA’s exclusion of certain posthumously-
conceived children violates the Equal Protection Clause. We
affirm.
7182 VERNOFF v. ASTRUE
I. Background
Vernoff and the insured, Bruce Vernoff, were married for
five years when Bruce died of accidental causes in July 1995.
Shortly after his death, Vernoff directed a physician to extract
five vials of Bruce’s semen. The couple had no children, and
there is no evidence to suggest that Bruce consented to the
procedure or had ever contemplated having a child postmor-
tem. In June 1998, Vernoff underwent in vitro fertilization
using Bruce’s sperm and Brandalynn was born March 17,
1999.
In October 1999, Vernoff filed her initial claim for child
survivor benefits with the Social Security Administration, on
behalf of both Brandalynn and herself, as the mother of a sur-
viving child. Her claim was denied both by the SSA and on
appeal before an Administrative Law Judge (“ALJ”) before
she appealed to the district court. While her appeal was pend-
ing, this court decided Gillett-Netting v. Barnhart, 371 F.3d
593 (9th Cir. 2004), and the SSA subsequently issued an
Acquiescence Ruling to the decision on September 22, 2005.
See Social Security Acquiescence Ruling 05-1(9) (“SSAR”),
70 Fed. Reg. 55,656 (Sept. 22, 2005). The district court
remanded the case to the SSA for further proceedings in light
of the two decisions. The SSA reaffirmed its final decision in
December 2006, and the district court affirmed the decision
in 2007.
II. Standard of Review
We review de novo the district court’s decision to uphold
the SSA’s denial of benefits. See Mayes v. Massanari, 276
F.3d 453, 458-59 (9th Cir. 2001). The agency’s final decision
denying benefits must be affirmed unless the findings are
based on legal error or are unsupported by substantial evi-
dence. Id. “Considerable weight” must be given to the con-
struction of the Act adopted by the Commissioner of the SSA,
who has statutory authority to interpret and enforce the Social
VERNOFF v. ASTRUE 7183
Security Act (“Act”) under 42 U.S.C. § 405(a). See Das v.
Dep’t of Health & Human Servs., 17 F.3d 1250, 1254 (9th
Cir. 1994).
III. Discussion
1. The Gillett-Netting Decision
In Gillett-Netting, we contemplated the Act’s application to
posthumously-conceived children for the first time. The case
centered around twins conceived 10 months after their
father’s passing. Gillett-Netting, 371 F.3d at 595. Their father,
Netting, delayed cancer treatment in order to deposit semen
for later use by his wife. Id. at 594. Before he died, he con-
firmed that he wanted his wife to have their child using his
frozen sperm. Id. at 595.
[1] We first noted that to receive benefits under the Act, a
claimant must show that: (1) he or she is a “child,” under the
Act; and (2) he or she “was dependent on the insured wage
earner at the time of his death.” Id. at 596 (citing 42 U.S.C.
§ 402(d)(1)). We then interpreted the word “child,” for pur-
poses of 42 U.S.C. § 416(e), “to mean the natural, or biologi-
cal, child of the insured.” Id. In doing so, this court held that,
contrary to the SSA’s interpretation, a child did not also have
to satisfy the terms of § 416(h)(2), (3) (demonstrating right to
take through intestacy laws of the State and other means of
establishing paternity) where parentage was not disputed. Id.
at 596-97.
We next examined the dependency requirement of
§ 402(d). The Act does not require proof of actual depen-
dency for those children that are deemed dependent, through
a determination either that they are the legitimate child of the
insured under state law or a deemed legitimate child through
compliance with § 416(h). See § 402(d)(3).1 Applying Ari-
1
Section 402(d)(3) reads as follows:
A child shall be deemed dependent upon his father . . . at the time . . .
7184 VERNOFF v. ASTRUE
zona law, we held that the twins were the deemed dependents
of Netting because they were his legitimate children under
state law, which recognizes “[e]very child [as] the legitimate
child of its natural parents.” Gillette-Netting, 371 F.3d at 598(quoting Ariz. Rev. Stat. § 8-601). Netting was the “natural
parent” of the twins, in turn, as the “biological father of a
child born using artificial insemination” of his spouse. Id. at
599 (citing Ariz. Rev. Stat. § 25-501).2
2. The Social Security Acquiescence Ruling
[2] In the SSAR, the SSA reaffirmed its interpretation of
§ 416(e)—that to meet the Act’s definition of “child” for pur-
poses of § 416(e) a child must also demonstrate a sufficient
connection to the insured through compliance with
§ 416(h)(2), (3)—but acquiesced to Gillett-Netting’s interpre-
tation of § 416(e) for the Ninth Circuit only. 70 Fed. Reg.
55,657. The SSAR also reaffirmed that, in the usual circum-
stances, this means a “child” can only be deemed a legitimate
child for dependency purposes, under § 402(d)(3), if she has
already first complied with § 416(h)(2) and shown that she is
[of death] unless, at such time, such individual was not living with or con-
tributing to the support of such child and —
(A) such child is neither the legitimate nor adopted child of
such individual, or
(B) such child has been adopted by some other individual.
For purposes of this paragraph, a child deemed to be a child of a fully or
currently insured individual pursuant to section 416(h)(2)(B) or section
416(h)(3) of this title shall be deemed to be the legitimate child of such
individual.
2
This court also specifically noted that even Arizona law would not treat
every sperm donor as a “natural parent,” and thus legitimate, solely by
demonstrating a biological relationship to the insured. See Gillett-Netting,
371 F.3d at 599 n.7. In Gillett-Netting, the “natural parent” requirement
was satisfied because the insured was the spouse of the biological mother
at the time he agreed to the posthumous conception. See Ariz. Rev. Stat.
§ 25-501(B).
VERNOFF v. ASTRUE 7185
able to inherit through the intestacy laws of the state of the
insured’s residence.3 Id. The SSAR noted that in the Ninth
Circuit, however, due to Gillett-Netting, the child must only
be biologically related to the insured, and must only “be the
insured’s ‘legitimate’ child” under applicable state law to be
deemed dependent for purposes of § 402(d)(3). Id. The SSAR
further explained, however, that the legitimacy distinction has
been replaced in jurisdictions within the Ninth Circuit by a
system of “rights which flow between parents and their chil-
dren, regardless of the parents’ marital status.” Id. In conclu-
sion, the SSAR stated that “[a] child acquires these rights [and
thus is deemed both legitimate and dependent] if he estab-
lishes that an individual is his parent under State family law
provisions.” Id. (emphasis added).
3. Determining Parentage Under California Law
[3] Though our decision in Gillett-Netting and the SSA’s
subsequent Acquiescence Ruling require Brandalynn to be
considered the insured’s “child” under the Act because of her
biological relationship to the insured, that determination does
not end our inquiry. Vernoff must also establish that Branda-
lynn was dependent upon the insured at the time of his death,
see § 402(d)(1)(C)(ii), to be eligible for benefits. Brandalynn
has three methods of establishing dependency under
§ 402(d)(3): (1) show actual dependency at the time of the
insured’s death; (2) satisfy the requirements in the Ninth Cir-
cuit under the SSAR and Gillett-Netting by establishing that
the insured is her “parent” under California law provisions
and that she is, therefore, deemed both legitimate and depen-
dent; or (3) satisfy the requirements under § 416(h)(2) by
establishing that she may inherit from the insured under the
intestacy laws of California, and therefore, is deemed legiti-
mate, see SSAR, 70 Fed. Reg. 55,657. Vernoff cannot estab-
3
A child can also show deemed legitimacy through compliance with
§ 416(h)(3), but that method is inapplicable to this case and we do not sep-
arately discuss it.
7186 VERNOFF v. ASTRUE
lish that Brandalynn was actually dependent upon the insured
at the time of his death, as Brandalynn was not yet conceived,
so she must rely on the other two methods of establishing
deemed dependency. We first examine whether Vernoff can
establish that the insured is Brandalynn’s natural father under
California law.
As noted above, in Gillett-Netting we relied on Arizona
state law, which recognizes “[e]very child [as] the legitimate
child of its natural parents.” 371 F.3d at 598 (quoting Ariz.
Rev. Stat. § 8-601, second alteration added). The SSAR rec-
ognized that all jurisdictions within the Ninth Circuit, except-
ing Guam, had similarly eliminated categorization of children
based upon the marital status of their parents. 70 Fed. Reg.
55,657. Therefore, following the approach taken in Gillett-
Netting, the SSAR instead required a claimant to establish that
the insured was his or her parent under State law.4 For the
court in Gillett-Netting, this determination was based upon
Arizona’s recognition of biological parenthood as sufficient to
establish “natural” parenthood, particularly for the “biological
father of a child born using artificial insemination” of his
spouse. 371 F.3d at 599 (citing Ariz. Rev. Stat. § 25-501).
California has taken a different approach to resolving the
problems posed by categorizing a child as legitimate or ille-
gitimate. Rather than deeming every child legitimate, as Ari-
zona has, California has instead chosen to replace the
legitimacy determination with an alternate scheme “which
bases parent and child rights on the existence of a parent and
child relationship rather than on the marital status of the par-
ents.” See Johnson v. Calvert, 5 Cal. 4th 84, 88-89 (1993). A
parent and child relationship can be established only between
4
The SSA’s interpretation of legitimacy for purposes of § 402(d)(3) is
entitled to deference as a “permissible construction of the statute.” See
Mesa Verde Constr. Co. v. N. Cal. Dist. Council of Laborers, 861 F.2d
1124, 1130 n.5 (9th Cir. 1988) (en banc); see also Barnhart v. Walton, 535
U.S. 212, 217-22 (2002).
VERNOFF v. ASTRUE 7187
a child and his natural or adoptive parent. See Cal. Fam. Code
§ 7601.
[4] The primary means for a father in California to acquire
rights as a natural father is through application of California
Family Code § 7611. That section sets out several methods by
which a father is presumed to be the natural parent of a child,
including, most relevant to this case, if “[h]e and the child’s
natural mother are or have been married to each other and the
child is born during the marriage or within 300 days after the
marriage is terminated by death . . . .” § 7611(a). Because the
Vernoff’s marriage was terminated by death, and Brandalynn
was not born with 300 days of the insured’s death,5 the
insured is not presumed to be her natural father under this
provision. None of the other presumptions set forth in § 7611
are applicable either, including if a man “receives the child
into his home and openly holds out the child as his natural
child,” § 7611(d), or presumptions concerning situations in
which both parents are cohabitating and there is a question as
to the biological relationship, or where there is a voluntary
acknowledgment of paternity, see §§ 7540, et seq. and 7570,
et seq.6
5
Vernoff argues that the allowance for a child to be born within 300
days of the husband’s death already provides a presumption of natural
fatherhood for posthumously-conceived children. This argument is untena-
ble. The intent of the legislature was clearly to provide a sufficient gesta-
tional window for those children conceived prior to death, especially as
posthumous conception was not a medical reality at the time the statute
was passed. See Bodell Constr. Co. v. Trs. of Cal. State Univ., 62 Cal.
App. 4th 1508, 1516 (Ct. App. 1998) (“The legislative purpose will not be
sacrificed to a literal construction of any part of the statute.”).
6
Section 7611(f), which extends the presumption of natural parent status
to posthumous children conceived under conditions that satisfy the terms
of § 249.5 of the California Probate Code, does not control this court’s, or
the SSA’s determination. Pursuant to 20 C.F.R. § 404.355(b)(4), the SSA
applies state law at the time of the death of the insured, unless a more
favorable state law is enacted before the SSA makes a final determination
on the claim. Here, § 249.5 was not effective until 2006, so need not be
7188 VERNOFF v. ASTRUE
[5] Contrary to Vernoff’s assertions, California law does
not equate natural parent status with biological parenthood
such that a mere biological relationship is sufficient under
California law to grant status as a natural parent. The Califor-
nia Supreme Court has noted that “[t]he paternity provisions
are driven not by biological paternity, but by the state’s inter-
est in the welfare of the child and the integrity of the family.”
Elisa B. v. Superior Ct., 37 Cal. 4th 108, 121-22 (2005) (quot-
ing In re Salvador M., 111 Cal. App. 4th 1353, 1357-58 (Ct.
App. 2003)); see also In re T.R., 132 Cal. App. 4th 1202,
1209 (Ct. App. 2005) (“A biological father can be a presumed
father, but is not necessarily one; and a presumed father can
be a biological father, but is not necessarily one.”).
This concept is illustrated by an examination of Califor-
nia’s Family Code and family law decisions. The presumed
natural father section itself does not mention nor require a
biological relationship between the father and the child. See
§ 7611. Moreover, while § 7612 of the California Family
Code allows the presumption of § 7611 to be rebutted with
biological evidence, the rebuttal is only permissive, not
required, and is only permitted where the biological relation-
ship (or lack thereof) is demonstrated by clear and convincing
evidence. See Elisa B., 37 Cal. 4th at 125 (refusing to rebut
the presumption of natural parenthood for non-biological les-
bian mother following termination of the relationship with the
biological mother). Furthermore, and analogously, § 7613 of
the California Family Code deems the husband who has con-
sented to his wife’s artificial insemination by another man’s
biological gamete, to be the “natural” parent. Section 7611.5
considered unless it is favorable to Vernoff. That provision expressly
requires both that the decedent specify, in writing, that his or her genetic
material can be used for posthumous conception, § 249.5(a), and that the
resulting child is in utero within two years of the decedent’s death,
§ 249.5(c). See infra n.8. Because Vernoff satisfies neither requirement,
§ 7611(f) and § 249.5 cannot be used to establish the insured as Branda-
lynn’s natural father.
VERNOFF v. ASTRUE 7189
of the Family Code, too, does not rely on biological parent-
hood alone, as that section precludes rapists from acquiring
natural father status. Moreover, in In re Jerry P., 95 Cal. App.
4th 793 (Ct. App. 2002), a case Vernoff cites to for the impor-
tance of biological parenthood, the court protected presumed
natural parent rights for a man who was not biologically
related to his son, observing that “[a]s adults we must not for-
get what every child knows—the parent-child relationship is
not spun from DNA.” Id. at 817.
[6] While Vernoff is correct in asserting that § 7611 is not
the exclusive means of determining natural parent status, see,
e.g., § 7613 (consenting husband natural father of child con-
ceived through artificial insemination of his wife), Vernoff
has failed to establish that the insured qualifies as Branda-
lynn’s natural father under any California Family Code provi-
sion.
[7] California Family Code § 7630(c), which allows Vern-
off to initiate a court action to establish paternity where there
is no presumed father or the presumed father is deceased, is
of little help to her. In any paternity action, a California state
court would apply the same Family Code provisions to deter-
mine who is Brandalynn’s natural father. None of those provi-
sions contemplate this situation. The most analogous
provision, § 7613(b), excludes a sperm donor from status as
a natural father. Section 7613(a) allows a husband to instead
be treated as the natural father following artificial insemina-
tion of his wife, but only if he specifically consents to the arti-
ficial insemination. Consent is lacking here. Section 7630(f)
also allows for a paternity suit to be filed in cases of artificial
insemination, but only to enforce the intent expressed in the
assisted reproduction agreement. Here, there is no agreement,
or even evidence of the insured’s consent or intent.
[8] The courts’ reliance on the decedent’s consent to the
posthumous conception, as a basis for establishing natural
parenthood, was central to the holdings in both Gillett-Netting
7190 VERNOFF v. ASTRUE
and in Woodward v. Commissioner of Social Security, 435
Mass. 536, 760 N.E.2d 257 (2002), a case cited by both
Gillett-Netting and Vernoff. See Woodward, 435 Mass. at 553
(noting “inadequacy of a rule that would make the mere
genetic tie of the decedent to any posthumously conceived
child” sufficient to establish the decedent as the legal father
of any resulting child). Consent, in turn, demonstrates a will-
ingness to support the child and an intent to create the child.
In Gillett-Netting, the court determined that the insured was
the natural parent under Arizona law because he was married
to the children’s biological mother at the time he consented to
the posthumous conception. See Gillett-Netting, 371 F.3d at
599; see also Ariz. Rev. Stat. § 25-501(B). Both an intent to
create and a willingness to support a child are relied upon reg-
ularly by California courts in determining whether an alleged
parent should be considered a natural parent. See, e.g., Elisa
B., 37 Cal. 4th at 125 (applying § 7611 presumption to les-
bian, non-biological, mother “because she actively partici-
pated in causing the children to be conceived with the
understanding that she would raise the children as her own
together with the birth mother”); In re Jerry P., 95 Cal. App.
4th at 817 (protecting natural parent rights of non-biological
parent who was “indisputably ready, willing, and able to exer-
cise the full measure of his parental responsibilities”); In re
T.R., 132 Cal. App. 4th at 1209-1210; see also Cal. Fam.
Code §§ 7613, 7630(f).
[9] Vernoff has not persuasively argued that she would pre-
vail in any suit filed under § 7630(c), based only upon the
undisputed biological relationship between the insured and
Brandalynn.7 She has not provided any evidence of consent to
the conception by the insured or his willingness to support
7
Moreover, 20 C.F.R. § 404.355(a)(3) requires that a paternity court
order must be issued prior to the insured’s death. While § 404.355(a)(4)
allows a claimant to overcome this deficiency through other persuasive
evidence of natural parenthood, it also requires the claimant to show actual
dependency, which Brandalynn cannot do.
VERNOFF v. ASTRUE 7191
Brandalynn, as the biological mother was able to do in Gillett-
Netting. Therefore, Brandalynn does not fall under the Ninth
Circuit’s ruling in Gillett-Netting and the subsequent SSAR,
and is not deemed to be the insured’s legitimate child and
deemed dependent for purposes of § 402(d)(3).
4. Determining Intestate Succession Under California
Law
Vernoff’s third and final option to establish Brandalynn as
the insured’s deemed dependent is to establish that Branda-
lynn can inherit from the insured’s estate pursuant to Califor-
nia intestacy law. See SSAR, 70 Fed. Reg. 55,657 (citing
§§ 402(d)(3), 416(h)(2)). Vernoff’s primary argument is that
the SSA has not shown that Brandalynn is excluded from Cal-
ifornia’s intestacy provisions. This argument misplaces the
burden, which is on Brandalynn to establish her eligibility. It
also misconstrues the nature of intestacy law, which excludes
from inheritance any person not specifically included. Three
primary provisions of the California Probate Code merit our
consideration: §§ 6407, 6453, and 249.5.
[10] Under § 6407, “[r]elatives of the decedent conceived
before the decedent’s death but born thereafter inherit as if
they had been born in the lifetime of the decedent.” Vernoff
attempts to construe this provision in her favor, as a provision
extending rights to “posthumous children.” This argument
fails, however, as children born posthumously, but conceived
before death, and posthumously-conceived children are not
similarly situated. As we discussed in relation to California
Family Code § 7611(a), see supra n.5, this provision neither
explicitly or impliedly includes posthumously-conceived chil-
dren. Section 6407 does not extend intestacy rights to
posthumously-conceived children. Cf. Finley v. Astrue, 372
Ark. 103, 270 S.W.3d 849 (2008).
Section 6453 of the California Probate Code defines natural
parents for purposes of intestacy. The primary means of estab-
7192 VERNOFF v. ASTRUE
lishing a natural parent and child relationship, as in the family
code, is through reliance on the unrebutted presumptions out-
lined in California Family Code § 7611. See § 6453(a). Natu-
ral parent status can also be established pursuant to an action
permitted by § 7630(c), but only if one of three limited condi-
tions also exists. Most relevant to this case is § 6453(b)(3),
which allows a § 7630(c) action to establish paternity if “[i]t
was impossible for the father to hold out the child as his own
and paternity is established by clear and convincing evi-
dence.”
[11] Vernoff argues that § 6453(b) is an alternative means
of showing that the insured is Brandalynn’s natural father. It
is unclear, however, if the provision could be used in this situ-
ation. Previously, courts have approved the “impossibility”
argument only in situations where the alleged father died after
the child was conceived but before it was born, see Cheyanna
M. v. A.C. Nielson Co., 66 Cal. App. 4th 855 (Ct. App. 1998),
or where the child’s mother or a third party was physically
preventing the father from holding the child out as his own,
see In re Jerry P., 95 Cal. App. 4th at 809. After 2006, the
“impossibility” condition of § 6453(b)(3) likely would not be
applied to a posthumous conception situation, as a new condi-
tion outlined in § 6453(c) specifically applies when “[a] natu-
ral parent and child relationship may be established pursuant
to § 249.5 [posthumous conception].” We need not decide if
§ 6453(b) could be extended to cover Brandalynn’s situation,
however, because Vernoff misconstrues the import of that
section. Even if that section applies and it was impossible for
the insured to hold out Brandalynn as his child, Brandalynn
still cannot automatically take through the intestacy provi-
sions. Instead, § 6453(b) would only permit a natural parent
relationship to be established pursuant to a § 7630(c) action,
and, as we explained above, Vernoff has not established that
she would prevail in such action if it were filed (and it has not
been).
VERNOFF v. ASTRUE 7193
[12] Finally, California Probate Code § 249.5, though not
controlling because it was passed after the insured’s death, see
supra n.6, illustrates California’s current legislative intent
regarding posthumously-conceived children. Consistent with
Massachusetts’s determination in Woodward, § 249.58 only
provides intestacy rights to posthumously-conceived children
where it is guaranteed the decedent consented to the proce-
dure and the conception is timely (promoting the interest in
finality of an estate).9 See Woodward, 435 Mass. at 551-552.
Vernoff cannot establish Brandalynn’s rights of intestacy
through § 249.5 because Brandalynn was conceived nearly
three years after the death of the insured and without his con-
sent.
8
Section 249.5 provides, in relevant part:
For purposes of determining right to property to be distributed upon the
death of a decedent, a child of the decedent conceived and born after the
death of the decedent shall be deemed to have been born within the life-
time of the decedent . . . if the child or his or her representative proves by
clear and convincing evidence that all of the following conditions are sat-
isfied:
(a) The decedent, in writing, specifies that his or her genetic material shall
be used for the posthumous conception of a child of the decedent . . .
(c) The child was in utero using the decedent’s genetic material and was
in utero within two years of the date of issuance of a certificate of the
decedent’s death . . . .
9
All other state statutes concerning posthumous conception also support
the sound policy determination that the decedent’s consent to the concep-
tion is essential, but not always sufficient, to establish parentage or intes-
tate eligibility. See Ala. Code § 26-17-707; Colo. Rev. Stat. § 19-4-106(8);
Del. Code Ann. tit. 13, § 8-707; La. Rev. Stat. Ann. § 9:391.1(A) (child
must also be born within three years); N.D. Cent. Code § 14-20-65; Tex.
Fam. Code Ann. § 160.707; Utah Code Ann. § 78B-45-707; Va. Code
Ann. § 20-158(B) (child must also be born within 10 months, cf. § 20-
164); Wash. Rev. Code § 26.26.730; Wyo. Stat. Ann. § 14-2-907; see also
Unif. Parentage Act § 707 (amended 2002), 9B U.L.A. 53 (Supp. 2006);
Restatement (Third) of Prop.: Wills & Other Donative Transfers § 2.5,
cmt. l (1999).
7194 VERNOFF v. ASTRUE
None of the Probate Code provisions Vernoff cites estab-
lishes that Brandalynn was entitled to inherit under California
intestacy laws at the time of the insured’s death. Vernoff has
also not established that the legislature intended to provide
intestacy succession rights to posthumously-conceived chil-
dren prior to the passage of § 249.5. While we do not gener-
ally decipher previous legislative intent based upon
subsequent legislation, in this case we do have insight as to
how California courts interpreted the intestacy provisions
prior to the passage of § 249.5. In Hecht v. Superior Court, 16
Cal. App. 4th 836, 859 (Ct. App. 1993), the court awarded a
decedent’s frozen sperm to his girlfriend, according to the
decedent’s intent, partially because “it [was] unlikely that the
estate would be subject to claims with respect to any such
[posthumously-conceived] children.” The court went on to
cite the Uniform Status of Children of Assisted Conception
Act (though not adopted in California), which states that
“ ‘[a]n individual who dies before implantation of an embryo,
or before a child is conceived other than through sexual inter-
course, using the individual’s egg or sperm, is not a parent of
the resulting child.’ ” Id.[13] Thus, Vernoff has not established that Brandalynn was
entitled to inherit under California intestacy laws at the time
of the insured’s death, and it is clear, following the passage
of § 249.5, that current law would also prevent her from
inheriting. Because she cannot meet the requirements of
§ 416(h)(2) of the Act, Brandalynn is not the insured’s
deemed legitimate child under California law, and therefore
she is not deemed dependent upon him. We affirm the district
court’s decision to uphold the denial of benefits to Vernoff
and Brandalynn.
5. Equal Protection Claim
Vernoff separately argues that the SSA’s interpretation and
application of child survivor benefits’ law, which excludes
some posthumously-conceived children, including Branda-
VERNOFF v. ASTRUE 7195
lynn, violates the Equal Protection Clause of the Fifth Amend-
ment.10 Vernoff’s challenge is controlled by the Supreme
Court’s decision in Mathews v. Lucas, 427 U.S. 495 (1976).
[14] In Lucas, the deemed dependency provisions of
§ 402(d)(3) were challenged because the SSA’s application of
those provisions resulted in the extension of benefits only to
certain classes of illegitimate children. The Court did not
apply heightened scrutiny, but instead upheld the provisions
under rational basis review. Id. at 509. Rational basis review
was appropriate because the provisions did not draw a line
between legitimate and illegitimate children, but rather
included some illegitimate children while excluding others.
Id. The Court accepted the SSA’s uncontested view of the
purpose of the Act, which “was not a general welfare provi-
sion for legitimate or otherwise ‘approved’ children of
deceased insureds, but was intended just ‘to replace the sup-
port lost by a child when his father . . . dies . . . .’ ” Id. at 507
(quoting S. Rep. No. 404, 89th Cong., 1st Sess., 110 (1965)).
The Court concluded that “the statutory classifications are
permissible . . . because they are reasonably related to the
likelihood of dependency at death.” Id. at 509. Moreover, the
dependency presumptions were not impermissibly overinclu-
sive, because they served the reasonable goal of “administra-
tive convenience.” Id.
[15] Similarly, here the SSA is not excluding all
posthumously-conceived children, only those that do not meet
the statutory requirements under State law. See SSAR, 70
Fed. Reg. 55,657. The presence of California Family Code
§ 7611(f) and California Probate Code § 249.5, demonstrate
that posthumously-conceived children can be deemed legiti-
10
Vernoff also challenges the interpretation of various California state
law provisions as violating the Equal Protection Clause of the Fourteenth
Amendment. This claim was not raised before the district court and is
waived. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1488 n.4
(9th Cir. 1995).
7196 VERNOFF v. ASTRUE
mate, even in California, and establish eligibility for benefits
under the Act. Because the SSA’s interpretation does not
exclude all posthumously-conceived children, we follow the
Court’s example in Lucas and apply only rational basis
review. As in Lucas, the challenged classifications are reason-
ably related to the government’s twin interests in limiting
benefits to those children who have lost a parent’s support,
and in using reasonable presumptions to minimize the admin-
istrative burden of proving dependency on a case-by-case
basis.
AFFIRMED.