social security survivor benefits based on the earnings of their deceased biological father oh and belzer it's been going on kind of a long time how much money are they paddled to now i think it's about going to college the kids i think are now about sixteen years old seventeen sixteen or seventeen years old the record doesn't contain the exact amount of money that they would be entitled to that hasn't been calculated that but i think that it would be for them quite significant good to speak up would you please  well thank you i mean if you want to be heard i do want to thank you your honor the narrow question presented here is whether the shells her children are entitled to inherit under california probate code two four nine point five where their father consented in writing to the use of his genetic material for posthumous conception and subsequently deposited sperm that was used to create embryos that resulted in their conception the reason that california probate code is relevant is because as your honour's know the social security act incorporates state and tests the law inherit section two for nine point five specifically addresses that scenario and sets out numerous criteria by which a child is untied posthumously conceived child is entitle to inherit those criteria are sperm to have the ios and we have the sperm and the so the embryos existed at the time he was still alive right both existed at the time he writes all right but there's that one could argue if you they were to pretreated differently that the embryos whatever your view is of life that they were different then sperm that had not yet been mixed with any right and so that's kind of where all this is this kind of damage that there are two separate objects but i think it's important to back up and look at the timeline here because  on october eighth executed this consent form this is the consent form that the male j agree gives consent for the posthumous conception at least in her view with respect to the  time he executed the consent form there was neither a deposit of sperm nor any embryos so the consent form was executed in the context of the overall fertility treatment that was going to be implemented two weeks later he deposits the sperm some of the sperm is used to develop these embryos and some of the sperm is saved for later treatment and unfortunately those specific embryos went through the treatment those specific embryos did not result in a pregnancy despite those you know best intentions and then mr dolls or is struck with a terminal illness the question is and this is a legal question and this is a question that needs to be reviewed the know of is does the fact that mr dell's are in writing gave his consent to the genetic material being used posthumously satisfied to for nine point five because he did not specify that it was his sperm that should be used but rather specify that it was the embryos that was going to be used in that instance let me ok so it is to novo but for legal issues but it's deferential for factual issues so i just want to give you the devil's advocate position on here because this  reviewing court so the ultimate question in this case is whether the october eighth consent form meets the requirements of section two for nine point five right are we were together there that that it is clear and convincing evidence that owen in writing specified that his genetic material shall be used for the pasta humus conception of a child so if the determination by be a old j which  i think was also affirmed by the district court that the october eighth consent form covers only the embryos and not the sperm is a finding of fact then the court would have to defer to  regardless of whether one would have decided the matter in the same way as the l j did the decision arguably is reasonable and supported by financial as a substantial evidence so that's the hard argument against you if there's a factual if we have to differ on a factual issue that makes it harder for you right that's correct our position is that it's not a factual issue because the male chose specifically found that there was consent for posthumous conception but that consent does not satisfy two four nine point five because the to see that it did not specify the type of genetic material that was ultimately used for the conception and so our position is that that's not a factual issue that's a question of what is the requirement of two point two four nine point five two  nine point five does not refer to embryos does not refer to sperm or eggs and it simply refers to genetic material to the extent there's a conception for conception  lovelies yes to the extent that there is a suggestion that a fertilized embryo is a conceived human being i don't think that the record has established that and it does appear that the a l j was making a distinction between sperm and embryo on the basis of what the l j deemed to be ideological and moral grounds  respectfully neither the california probate code nor the factual record warrants any such distinction and if you there any reason to certify this to the california supreme court certainly this is this question of state law and to the extent that the court i want to argue in front of the california supreme court i'd be delighted to argue in front of  because i do view this as a as a question of legal interpretation i can understand where the court's they've had a long time you know there's there's a whole set there's a whole basis for certification and generally when we do certify something we say h this comes up all the time you need to tell us what your law is on this the statutes been around awhile and i think this is something like this hasn't ever happened i would hazard a guess that this is an unusual scenario claimants under the social security act however given that this is a question of interpretation of the california probate code certainly the california supreme court as well if we d if it's strictly legal and we decided it it's only binding in this case it's not binding in all it's not binding on california judges you know if it because there isn't anything really we don't have anything from the california supreme court as far as that goes but if there's a factual determination if we find it that way and that that makes it probably less attractive to the california supreme court what what are the parade of horrible  you know i say what's what sort of like gate this is so i understand that argument and i don't think that in this case there is a floodgate because california law does contain a specific provision for  the recognition of posthumously conceived children we're not looking at creating a new right or recognizing a new class of children that would be subject to a test of the law this is a different case from for example if we were code two four nine point five came into effect i think it was in two thousand and five or two thousand and six if we were in the preach two thousand and five or two thousand and six landscape i think that there would an argument for a parade of horribles because there is unclear law and are these children entitled to recognition under california law here california law is very clear you got the benefit of that law we have this yes i mean it yes we did get the benefit and then as the social security act makes clear we're entitled to the patient of the more favorable law but the law is narrowly defined it does require writing which our position is has been satisfied here it does require that the right thing only be revoked writing that that specific consent and it does require that the conception occur within two years  say that mr lucy's granted a consent to use of genetic material i see the forms referring to embryos could you tell me between types of genetic material and it gives the example sperm and eggs versus other types of genetic material the implication being clearly there's other types of genetic material such as embryos conception be granted towards a specific person so it can't just be like i authorize anybody that use my i mean i suppose in theory a could but there is a requirement that no this be given to a specific person who has received that entitlement to use genetic material posthumously and so the reference to with my wife satisfies the statute because it is giving her no this and the right to use that genetic material ok i'll give you two minutes for a bottle thank you thank you good morning good morning your honor you tell me what tex so long on this case your honor this case has taken its time due to legal sorry your honor there were legal developments that resulted in this case being returned to the district court level the parties agreed that was the appropriate resolution and we want to start in two thousand and one your honor that's correct and seventeen yes your honor and the parties are here today following a series of steps that were both necessary and appropriate to reach the right outcome in this case it required factual development below it required the administrative law judge to carefully consider this evidence required the parties to go to the district court when the appellants filed lawsuit there while that case was pending in the district court as i mentioned to the supreme court issued the astra because pato decision and the parties and agreed that it was appropriate for the case to be returned for further consideration by the agency and following the outcome honor but isn't it is necessary time it's time well spent and it's essential to get these issues right because this is an important matter not just for the social security administration but in the state of california there are not many decisions construing section two forty nine point a as this court noted when discussing this with my colleague my opponent because there are so little there is a little guidance in the california court system on this provision what this court decides today will in fact be quite significant and quite important it will certainly affect subsequent agency decisions in similar contexts and given the evolution of technology the technological changes permitting posthumous conception it is indeed quite possible if not likely that these scenarios will continue to arise with increasing frequency so this is a matter that has lasting implications and this  is significant both for the state of california and for the social security agency it's not a very that this it's not a terribly satisfactory result in this situation but let's she's characterizing it the appellant's way or as a strict legal issue are you saying that there's a factual determination that we need to give actual that we have to give deference to yes your honor the commissioner does submit that the ministry of law judge's decision was supported by substantial evidence and based on the correct legal standards the administration what factual determination was made specifically with respect to the consent agreements at issue here executed honor looking at the type of genetic material specified in that agreement is a factual issue and the type of the type of genetic material my client up right my client submit in those agreements only concerned embryos the full legal interpretation of the word your honor respectfully embryos are quite distinct from sperm this isn't a matter as a matter  the the interpretation of contractual language in california for a long time has been soley a matter for the law the judge period there is no factual determination that drives this case one way or the other is it your honor respectfully the commissioner disagrees and so and argues that if these agreements by their adie's embryos in mr beason real being different that's a factual determination but your word embryo has a dictionary meaning or usage meaning to be determined by the court as a matter of contractual because the agreements are quite clear and quite specific about what they find that's a legal but they go to section six hundred thirty five of the civil court of california plain meaning rule right but that's a legal rule doctors in california through the determination of the meaning of documents written contracts i mean what factual issue did the a l j find did not evidence any intent by mr belcher for the posthumous conception of the children using his crowd preserve sperm because there was no clear and convincing evidence of specific there's ignition right if these children had been conceived by way of would they be entitled to benefits those facts are not before the court your honor well i'm not asking it's a hypothetical yes your honor it's a hypothetical we do it all the time yes your honor if the children were if the didn't simply utilize the sperm they made an embryo after he had died now where does it say that that wouldn't count the issue is whether mr bell's or signed a consent form sperm and he said he said that with embryos that my wife and i created now they didn't get a petri dish and put the shoe over them and the over the over and created by my wife and i doesn't see during my lifetime and if it's going to be posh to me and sleep permitted then what difference does it make whether it's created is the crow preserved sperm is the material that was used to create the embryos after his death like but it was an embryo it was created it was not just utilizing the sperm on the on the wife correct there where does it say that you can't create an embryo after i die the whole purpose of doing it was to have a posh human trials you are going back to the language of the statute the sort of inferences and because something is not written therefore we should assume the opposite is true is simply not what the statute requires the clot the statute requires affirmative evidence that mr bell's or agreed that his sperm could is a possibility if this court does decide to go that route it would certainly be a question that when you went to concede if the california supreme court sought the way that they sought then you would have to follow that if they said that that's what the law means and that's what this if they decided the case that way then that we are not ready to we are not free to disregard pat we would want to see that ruling of course before agreeing but that is certainly possible your honor if you went and agree with the california supreme court we would agree with the help from your supreme court we have it like i have to agree with the u s supreme court and if it's on state law i got agree with the california supreme court i don't i don't get to put my two cents in after that i can do all i want before hand yes your honor so if this court elects that that's the appropriate avenue for this case the commissioner certainly would not disagree with that if the court wanted to certify it to the california supreme court but returning to the returning to the statute at issue here two forty nine point five it requires to reiterate clear and convincing evidence in writing of mr bell's or intention that the crow preserve sperm shall be used for the past misconception of his children we do not have documentation stating any such intention ok so let's look at the the language of the statute is all right let's go with the language of the statute and let's just put it side by side with the language of his consent form so the language of the statute says that it's clear and convincing evidence in writing specified that his genetic material shall be used for the posthumous conception of a child right yes and genetic material we don't really have too much in the way of definitions correct so but we're not really just that these things are all genetic material of some sort but that being the case then what the consent form he did do in writing what does that say that concerns the disposition of embryos and what exact words can you read it to me that page one seventy of the record the patient information and informed consent form the justice disposition of embryos and states that the options include cryo preservation for your own future use a separate pro preservation consent is required that's the relevant provision here the agenda is where the separate consent was provided for the disposition of the embryos that were prior preserved after not being used immediately and what does that say the agenda  to the consent of the states appeared when seven to disposition of embryos choose one of the following options regarding remaining embryos or cites the third option was selected here which states preserve and store for future transfer we understand that for this option to be implemented we must read understand and sign the credit preservation consent form and that we will be financially responsible for the crowd preservation and the stor fees ok now at that time that he did the written consent what material had did they existed that when the consent forms were executed it is our understanding that no sperm had been collected yet nor embryos had been created yet that was to follow execution of these documents ok and then did he do more than one sperm deposit or was it just one and then they used it for some embryos that didn't work and then they the doctor created than they did another  made other ones after right our understanding is there was one deposit of sperm two vials were cryo preserved the remaining sperm was used for the creation of embryos all of which were then transferred did not result in a successful pregnancy the cryo preserve sperm there for the crops or sperm there is no specific documentation executed by mr bell's or stating his intention for what would happen to that sperm after he died and that's the commissioner's position is that the absence of such documentation necessarily does not satisfy the strict requirements of section two forty nine point eight which requires clear and convincing evidence in a signed writing ok and but at the time that they signed the writing this statute didn't exist right that's correct your honor ok your position mister one and all permit had not been used for the creation of embryos before after his death to be discarded your honor the commissioner simply does not know what mr dozers intentions were no one does and that's the fundamental problem here there must be clear and convincing evidence of his intentions we don't have clear and convincing evidence in writing of what he intended to an option that he specifically provided for i'm not quite sure you answered george kelly's question where does the agreement say the emb before his death your honor the forms do not state the embryos needed to be created before his death but what the problem here is is that there is no could be used for the creation of embryos after his death yes your honor that's what the statute requires and as the ministry of law just found and as the district court agreed there is no signed writing in the record here providing clear and convincing evidence statements there's some testimony from the doctor now when we only get to those if it's ambiguous what the written is really sad if there is contract ambiguity yes extreme sick evidence may be considered  if to see if the alternative evidence provides ok and so then one of the doctors say the doctor said he believed that mrs dell's ors wish to conceive children following mr passing using the crowd preserve sperm was consistent with his recollections of when the gels years initially approached him went to his clinic for in vitro fertilization treatments so did the l j not believe that and make a factual finding against that or what was that he found dr lee's testimony too speculative to constitute clear and convincing evidence first because is that a factual finding submit that it is a factual finding so subject to difference your honor the administrative law judge pointed out that while it may have been consistent with their intentions at the time they first approached him it does not this testimony does not speak to mr jealous or specific intentions regarding the disposition of his crowd preserve sperm after his death ok you know we've gone over the time but we had a question so thank you honor i have just a few points i'd like to make on robot all one quickly to the point of the length of time it is correct that there was agreement to remand this matter back to the l j after  computer i was involved in that then frankly we were quite reluctant to do so but the district court did encourage that and put the matter on a six month review scandal and so that's how we ended up back at the  not specific enough because it doesn't refer to sperm and quite honestly that puts our client in an impossible situation we're sitting here at the time where they are before the statute was an act they clearly intended to have children using i d f and they expressed their intent to have children posthumously using i v if and to quibble that that c t concerns only the embryo but not the precursor to the embryo the genetic material being the embryo but not the precursor the sperm that was used to create the embryo i think is just not a fair distinction  this purpose and in fact the legislative history is quite to the contrary where it says well we're just we're focusing on the intent of the deceased and and therefore we're specifically not defining the term genetic material to refer specifically to gametes or other genetic material  with respect to counselors position that there is no intent that the sperm and the choir preserve sperm be used posthumously respectfully that's incorrect mr giles or executed the will that will granted all his property to his wife that property includes the sperm so that sperm was granted to his wife do they talk about the sperm and as well they don't talk about this permanence well no they don't talk about the sperm but it's properly like any other property so it's given to his wife for her to do with what she wants so i don't think that's a fair characterization to say that we have no understanding of what his intent was with respect to his property which includes that sperm particularly where we're in the situation where we know that he has agreed to a posthumous conception and since we're getting to the question of the l j in fact finding they l j did discredit  finding it speculative frankly with all due respect the l j itself was being speculative in reaching certain factual conclusions mr dell's or after he was diagnosed with a terminal illness went to deposit this was not the man under any illusion that he was going to survive he was told that he had six months left to live as a forty year old man with six months left to live actually hands up the coming and three months he goes to deposit sperm why not  to deposit sperm and didn't tell anyone there's nothing in the record to support that so i think everything in the record supports that this was a deliberate choice to first create children through in vitro fertilization