When University of Arizona Anthropology Professor Robert Netting was diagnosed with multiple myeloma, he and his wife had already been trying for some time to conceive a child. Because his doctors told him that chemotherapy might render him sterile he delayed beginning treatment long enough to bank a sample of his sperm.

Tragically, Professor Netting’s cancer accelerated rapidly, and within little more than a month he had died. His wife, Rhonda Gillett-Netting (also an anthropology professor, as it happens), then underwent in-vitro fertilization, and successfully carried twin children to term. A boy and a girl were born eighteen months after Robert Netting’s death.

When a worker covered by Social Security dies, his or her dependent minor children are entitled to receive survivor’s benefits. Professor Gillett-Netting applied with the Social Security Administration to begin those payments for her children, but the Administration ruled that Social Security is only available to children actually born, or at least conceived, as of the date of the worker’s death. When Professor Gillett-Netting appealed to an Administrative Law Judge, she was rebuffed again. Then she took her case to the Federal District Court in Tucson, and Judge John M. Roll agreed with the Social Security Administration that the children should not receive benefits.

Last week Professor Gillett-Netting received her first good news in connection with her request for Social Security Benefits. The Ninth Circuit Court of Appeals, sitting in San Francisco, overruled the decisions of the agency, the Administrative Law Judge and Judge Roll. The appellate court decided that the only real question was whether the children were the natural, biological children of their father, and they indisputably are.

The appellate judges interpreted Arizona law to determine whether Prof. Netting would have been obligated to support the twins, ruling that he clearly would because he was their biological father and he was married to their mother. Arizona law has eliminated any separate treatment of children on the basis of their legitimacy.

"Although Arizona law does not deal specifically with posthumously-conceived children, every child in Arizona … is the legitimate child of her or his natural parents," said the judges, with the emphasis theirs. Professor Netting’s twins should start receiving Social Security benefits just in time for their eighth birthday, on August 6, 2004. Gillett-Netting v. Barnhart, June 9, 2004.

For more information on the meaning and effect of the Gillett-Netting decision, review the Center for Reproductive Rights' web report on the case. For more about Professor Netting, look to his fifteen-page online obituary with the National Academy of Sciences, complete with picture and publications.

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