For the fourth time in three months, and the second time in two weeks, the Ninth Circuit today asked for the Supreme Court’s help resolving a question of California law. Delzer v. Berryhill concerns the rights to Social Security benefits of twins who were conceived by in-vitro fertilization after their father’s death. (The children’s mother applied for benefits 16 years ago.) Their rights depend on the interpretation of a California inheritance statute.
The Ninth Circuit phrases the question this way:
California Probate Code § 249.5 provides that, for probate purposes, “a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent if the child or his or her representative proves by clear and convincing evidence that,” inter alia, “[t]he decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent.” Cal. Prob. Code § 249.5(a). Does a writing that specifies that some genetic material of the decedent shall be so used satisfy § 249.5(a), regardless whether the genetic material specified in the putative writing includes the genetic material actually used to conceive the claimant child? Or must the genetic material identified in the putative writing include the genetic material actually used to conceive the claimant child?
Last week, the Supreme Court agreed to answer a Ninth Circuit question — posed in mid-January — about usury and insurance law. A week earlier, the federal appeals court asked for help on a false-arrest issue. That request is still pending, as is a late-December request for resolution of an employment law question.
As mentioned, the Supreme Court has a hard time saying “no” to the Ninth Circuit. The Supreme Court’s probable “yes” in Delzer should come by mid-May, give or take.
[March 22 update: The Supreme Court today docketed the Ninth Circuit’s request.]