just like if you read one portion of the only judge who heard live witnesses and that was the administrative law to us says this is a of the case where medical scientific technology has advanced faster than the regulatory process i struck by noting that i find fully credible rather testimony here  paragraph says there is little doubt also that the equity supports the claimants applications and that a favorable decision would not be inconsistent with the intention of the stock however the court found that which i quite frankly don't get but he lives in florida he let me talk about go to new jersey live in florida he did his will in florida why not florida well very simply because every court supreme satisfy my descendants for purposes of article five and six shall mean only children born to me as a result of my not the counterpart these children remember the one child who survive me and share now why provide for children if you're don't intend to include the after point child i must i'm going to have to stop you here and move into another area because we do have some questions on that area i grant you and your emphasis has been on down this aisle and i grant you that if we were to get it on the silent is a significant issue but my question reference to the definition of child the old two d one says every child as defined in four sixteen eat for sixteen east their child means the child or legally adopted child of an individual there is no dispute here that the twins are the biological children of the wage earner where does it children that may be born as a result of the in vitro fertilisation you're back to the will again no your honor i am not back to the will on part seem the record page commissioner is making that these children are not the children of the wager parents it is not in dispute right so i my question and i will certainly ask the government how do they get to how do we even get to h two in this narrow situation got good in all due respect your just well that's what the ninth circuit so let me ask your question into it let's assume that you don't have to get to four sixteen h or to two things or you have to be a child of the wage earner and you have to be dependent on the wage earner at the time of the wage earners passing what's the evidence that the these after conceived children were dependent on the wage earner at the time of his passing are under  they didn't but and and they did not reach the issue of whether the twins were deemed dependent or depend the only issue be that they decided it was the issue child right  they say from grade school you can't really define something by child equals child doesn't tell you a whole lot but before sixteen each eighty two says in determining whether the op can see trials of a fully insured individual for method that those two courts at least are disapproved and said that the clear language of four zero two and four sixteen he was trying the commissioner as language that the children would be recognized they would be the heirs of the bodies so another i statement and that they would get proper and we have the will which says even if you don't you know i ms corcoran please the court my name is kelsey brown corcoran i'm here on behalf of the social security administration i'd like to start with the agency's interpretation of the act because we are asking this court take a different position than that of the ninth circuit crux of the interpretive task facing the agency was figuring out how congress intended for zero two do you want cross reference to four sixteen one to interact with for sixteen h two a this is not a new question that arises out of the posthumous reproduction cases it goes back to one nine hundred thirty nine when the survivor benefits were first added to the social security act you have a series says it has to do with when there's a question of her teeth which you can see there is not  yes and so so the agency at that time in one nine hundred thirty nine looked at these three provisions and very reasonably determined that each way means what it says that the s c shall and congress said because at that time there was no no effective means just scientology difficultly through a parent child relationship yes therefore congress determines that the primary way to determine the parent child ra's eligibility to inherit under state law right but here there is not that question there is no dispute as to parent child relationship you don't need to get to age t there is nothing to determine correct but yes i think your point about congressional intent is exactly why she let nothing is wrong what we're dealing with is the act as it was written in one nine hundred thirty nine congress has not chosen to go back one d and and four sixteen feet so you have all three sections that are right and it's very clear and common spoke about the h section and it talked about we need this because there's no way to scientifically determine recognized congress wasn't couldn't possibly have been thinking about possumus reproduction and we with that to the agencies credit is not in gauging any legislation here it has applied the law as it's written applying the letter of the law and since one nine hundred thirty nine reference and four o two d one to four sixteen you want to try to figure out what that means in the agency and i think the best reading of that has to be the congress was saying and for it to do one when we say child here we're not trying to exclude the grandchildren step children and adopt the children that are under four sixteen a one that was in no way intended to preclude application of h two a if she was still going to apply it's going to apply to those grandchildren the stepchildren everyone who's covered under you want so the cross reference and for it to do you want is just to point out we're not just talking about children here we're talking about all of the parties are falling or you want to still have to go to h two a and what how do we get h two a it's there what's the connection what why do we the term child names the child of legally or illegally adopted child of an individual but i think the reason if they had left that out and they just say didn't yes but if they had they didn't say per further definition going to age to well that certainly would have been helpful yeah if for your position yes the agency is faced with the act you know as it's written and they really have i think adopted the only possible interpretation that gives meaning to age to a i think the only family status has to be determined what what is there to be determined i think it's important to like to stay in texas and you know no one has to be determined whether there's a child parent relationship under state law there is don't dispute as to parentage the child parent relationship here is not disputed and we're all asking the same question so how do we have to determine under age any as to family status we have to determine whether whether there's a legal relationship between the child in the parent and that's important because i'll take what it's not just leave it that there is a relationship that if that were significant the biological determine family status so i would not get every with you that we go to age two but i would say everyone would agree that a sperm donor is the biological father of the child yet so in that's a similar situation to he or is the father the over the ninth circuit said but that apply a lot more correlation you get into that you are into age too i agree with you i'm talking about where that's where parentage is not in dispute where we need not determine family status or with with all respect i would say that that situation is not all that different than what we have here we acknowledge a biological relationship what we're saying though is the spite the biological relationship there is not a child parent relationship within the meaning of state and  think would you very problematic to take the position that biology is sufficient because again that's what's disputed by all the g would be sufficient only for the definition of trial yes but then you would then yes so all situation wouldn't then satisfy the child care relationship a fireman you're saying biology as well i mean what can you say it will be a difficult question to answer there for i think you're answering the question because you're agreeing that parents are just in so if there's a dispute as to who indeed is the parent is it someone who buys sperm the father by buying sperm from another man is that the father or bubbling in washington i'm not aware of congress looking that right now and so and the agency is restrained by the law as it is and they are they were saying you have you have all these appeals going on it's now a hot issue and yes of the agency is going to  get to age two it's easy but but how do you get there because there was nothing in the heat or in foreign to the one that even refers to each to let me add this to the sense of what we're talking right now about is what would congress do now yeah if i were thinking about it i don't think it's clear at all that the policy concerns would go in favor of including these children the purpose of social security benefits is to survivor benefits is to provide support in circumstances of unexpected loss and here by is that they wanted to have a child even if that child was conceived after his death that's the testimony yes so that there is no reason to believe that that child would not have been supported as all of this other children be are being supported at the time of conception in any of these cases the mother is aware that she will be single parenting and social security is intended as an insurance program and just as a matter of fiscal responsibility we're talking about insurance program at this time but just want to add also that it won't we're not talking about a small number of cases my understanding from the social security administration is that they're at about ninety such applications at this point and they want to ask that question but i suppose it hands on how you define the cases here you have a case where parentage is undisputed you have been you know the fact of but then you can have the sperm donor cases and you can someone who buys sperm you can have the surrogate mother adopted or wildly would lead to a greater you know increasing number of applications we're talking about a program with limit you or someone circuit is a huge jurisdiction as we all know how many applications have been approved under the ninth circuit i don't know the answer to j were wrong in determining that this was not a child under the definitional sex we would have to remain and would we not so that the determination of dependency could be made yes that's right so that it really wouldn't go up right away yes that's right i want to you know we've talked a lot about the policy issues if congress were to address this and as i said before congress hasn't so we're court recognize there is ambiguity to the extent that congress wasn't thinking about this in one nine hundred thirty nine well they weren't thinking about this particular factual situation but i don't think that that is a question in determining immunity the question would be whether the statute is ambiguous and we're talking about and i'm not entirely sure that it is so would deference be a board if it's not ambiguous what we're talking about an interpretation of the ac years and so from one nine hundred thirty nine to two thousand and four the agency was applying h two a to every single application and no court had ever questioned but they're not telling there's no one parent there's no one way apparent to me how under the circumstances of this precise case they get to age two yes yeah you have the regulations that date back to one nine hundred seventy s i don't it and i don't think it occurred to anyone that this there was any other alternative well way of interpreting it no one had argued that there weren't any cases about it no one to challenge it so we're not talking just talking about an interpretation that applies to those ninety applications we're talking about interpretation of the act that has applied to every single application for incorporate step children adopted children legally and adopted and stepchildren and grandchildren and then each way was intended to apply to all cases there's nothing in either family status has to be determined by families has always has to be determined time and whether or not an applicant was eligible for benefits turned on state test this new law so it's clear that congress in one nine hundred sixty five agreed with the agency that h two a was supposed to apply in all cases i can agree with  is going to apply in a lot of cases and i'm here to find lot but what i'm talking about the case we have before us well in one nine hundred sixty five congress thought that it applied to all cases the law hasn't changed so if it applies to all cases cases that time and what happened was it had become clear that there were a number of children who were actually dependent on a deceased here at the time of death and therefore fell within the x purpose in terms of unexpected loss but who were being excluded from circuit but applying it in the third circuit and so if that were to happen it would go on remand and presumably the agency would be free to apply the interpretation of the dependency requirement that it's always applied and if and then possibly that w words can she give this firm away that's also governed by the some eighty pages of consent and which the husband and wife signed before witnesses then there are various options it's in the record of course and in some the white has that right to keep the sperm and in this case have of husband and wife knowing that they had a