under the social security act these two seven year olds are not children this defies the plain language of the act as well as common sense then i think children are entitled to benefits because first they are children under the act and second th are legitimate for purposes of the federal statute that's correct your honor in the alternative they would also be deemed dependent because they're children and title ten tested inheritance and arizona law and again in this regard arizona is very broad and straightforward the relevant provision states that a child for the purpose of intestate inheritance a person is the child if it's natural parents now of course there's no dispute that partly that they weren't married and arizona law has a special provision regarding anonymous sperm donors are sperm know those who are not married and it states that married sperm donors will be considered the natural parents and be not considered the natural parent in that specific scenario which of course outside of the context of marriage for example they may have to get a court or the paternity decree so most states have been abolished distinction between legitimacy and illegitimacy so turning back no your honor in arizona it wouldn't make a difference whether they were born into marriage or outside of the marriage but in fact it was outside of marriage because i thought under arizona law of marriage and that's correct i technically although they were originally married and had tried to conceive but i imagine you're out there suggesting maybe where there's partners or people that haven't taken the step with actually getting married what would be their rights in that specific scenario and under arizona law it doesn't make a no explicit restriction that the child be conceived prior to death and in fact arizona has previously had such a statute and amended it and in place of that statute the dot the current one which the only and because it has been repealed the court should not impute a pre death conception requirement in fact the two other courts to consider this issue have both decided that posthumously conceived children should be entitled to benefits and that's both that like arizona to be inclusive of children and treat all children equally and not create artificial distinctions among children so the netting children here are children under the act whether you legitimate children and then as an alternative basis as children in title ten tested and here then if i may point out the commissioner tries to read out the legitimacy portion of the act and plain structure of the act which children are defined in section four one six eat and legitimate children in section four two d three are entitled to benefits but it also conflicts with this court's interpretation of the act and the supreme court's interpretation of the act which makes it clear that children are entitled to benefits if they are legitimate regardless of intestate inheritance rights and in fact the commissioner's own internal guidelines similarly apply the act not the regulations but the social security handbook section that the commission i relies on for one six two like all the four one six provision dependency prong of the requirements for survivors benefits but as we point out in our briefs they want to emphasize here today that skips right over the preliminary inquiry about whether the children satisfy the statutory definition of child under the act and under the plain language of the provisions of the act as well as the implementing regulations it is clear that they do not or sixteen eve provides that a child is the child or been a uniform act proposed which would have governed intestate succession and other inheritance rights for children born and conceived posthumously and there isn't i did not adopt in court well with all due respect we think it's completely unnecessary and i know that our opposing counsel agreed used because there is an expressed survivorship requirement and because any ambiguity in that survivorship requirement is a limit needed by that further exception for children in just asian we don't think there is any room to interpret arizona law to govern children conceived posthumously but we would agree that if there is doubt about the appropriate interpretation of that state law one mechanism for resolving it would be certification assuming that they said we have to reach that question which your language of the statute and something that they themselves appear to recognize is flatly inconsistent with the terms of the governing formal regulations that apply or since i think he's going to say were two things a child may not be very intended to be exclusive and i take that not only from the plain language of h two n a which says in determining whether at an applicant is the child and cetera the commissioner of social security shall apply such to be expansive rather than restrictive the additional requirements in h two b and h three would be superfluous because every biological son or daughter would qualify as a child the statutory terms is dependency not one's status as a child and each true is intended to define child and an only child so i'm not quite sure that that can be correct in  that the only application of h two is for defining child not legitimacy legitimate is not defined in the act and it is not except for the cross reference to the end t provisions for there are a lot of unrated and that would i mean what the commissioner has done because the second requirement of dependency under the statute d as with the initial requirement of being a child look to the definitions used in h two the commissioner has adopted by regulation similar tests for growth but the preliminary question of being a dependency which under the statutory terms is framed in terms of legitimacy although for zero two the three uses the term legitimacy a regulations are clear the commissioner has treated that term legitimate as a term of art and has defined it not by reference to state legitimacy of law but in fact by state in test to see law and i think there can be no defeats their attempt to show dependency under the statute i'm happy to address briefly the equal protection argument it is obviously a novel one and it's a little bit difficult to ascertain exactly what they when one recognizes the right of children conceived months or even years after the death of a just to take from that state if what they question is a right of the commissioner and the social security your honor i have three points to make in our about our first contrary to what the government contends the plaintiffs recognize there is a child component to the act and assert that of course here we have satisfied the child component reading court noted that the purpose of that provision is to dean illegitimate children as legitimate children and therefore entitled to benefits and per statute that they're referring to is merely a simultaneous death act that addresses the common situation where two people die at the same time and therefore one cannot inherit from the other and as i previously previously explained of course there is no explicit requirement in arizona is after boarding air statute that the child be conceived prior to the time of death the government raised the point that at the time the arizona legislature was amending its statute distributing then you have either one year you have one year to challenge the distribution of the estate and in the alternative if the state has not yet been distributed you have three years from the time of death so this isn't a situation where married parents who donate sperm through this is the conception well be considered natural parents but those anonymous sperm donors will not in fact that marry father who may not be the sperm donor in that situation will be considered the natural parent in writing that he doesn't want that to be the case  whatever whatever