Survivor in Gay Union Appeals Denial of Benefits to Boy

Kadrey and Camille Caracappa had been a couple for five years before they decided to have a family together.

With the help of an anonymous sperm donor, Ms. Kadrey became pregnant. In March 1998, with Ms. Caracappa and her mother in the delivery room, Ms. Kadrey gave birth to a boy. The couple named him Nicolaj, after Ms. Kadrey's father.

For two years, the two women and their son were part of Ms. Caracappa's large and boisterous extended family in the Jersey Shore area, spending birthdays and holidays together. Then, in October 2000, Ms. Caracappa, an oncology nurse, died of a brain aneurysm at age 38.

The following month, with the support and urging of Ms. Caracappa's mother, Ms. Kadrey who had been a stay-at-home mother to her son applied for Social Security survivor benefits for Nicolaj. But the Social Security Administration denied the request, saying that the child did not meet the agency's test as Ms. Caracappa's legal survivor. The two women were not legally married, as New Jersey law does not allow same-sex marriages, and Ms. Caracappa was not Nicolaj's biological mother.

But Ms. Kadrey and her partner's family say that the two women and their son were a family, even though one not recognized by the law, and that Nicolaj is as entitled to Ms. Caracappa's Social Security benefits as any other child whose parent dies. A lawyer for Ms. Kadrey has appealed the decision to an administrative law judge for Social Security, and they are awaiting a ruling.

Meanwhile, the American Civil Liberties Union has filed a friend of the court brief on behalf of Nicolaj, saying the matter would not be in dispute if same-sex marriages were allowed in New Jersey, where the two women lived when Ms. Kadrey gave birth to Nicolaj.

"At times of need, like death, that's where marriage acts as a safety net for families," said Ken Choe, a staff lawyer for the Lesbian and Gay Rights Project of the A.C.L.U.. "There are all these built-in protections in the law for married people that most families don't need to think about, but that's not true of gay and lesbian couples."

John Shallman, a spokesman for the Social Security Administration in the New York regional office, said the agency looks to state laws to determine who is eligible for survivor benefits. While he would not speak of this case specifically, he said that federal regulations say that a survivor is a minor who is dependent on the deceased person, and who is considered an heir to the deceased person's property. "We are bound by state laws on the definition of marriage and legitimate heirs," he said.

Ms. Kadrey, 46, claims her son meets both tests and is therefore entitled to Social Security benefits. And Mr. Choe of the A.C.L.U. claims that Ms. Caracappa intended to legally adopt Nicolaj, which will help their case under New Jersey laws. Ms. Kadrey said she and Ms. Caracappa had begun discussions with a lawyer to adopt Nicolaj, but had not completed the process. Same-sex adoptions are allowed under New Jersey law.

If the Social Security system rules against Nicolaj, Mr. Shallman said, his family could appeal the decision to the United States District Court.

Not everyone agrees that the two should be entitled to the rights given to married couples. John T. Tomicki, executive director of the League of American Families, a group that believes marriage should be defined as the union "between one man and one woman," said this case bolsters his views.

"Look how complicated things become when individuals step away from what marriage has been defined as and what our society has recognized regarding marriage and adoption," he said. "We would hope that the father of this child and the mother will now do their best to raise the child they created."

Ms. Kadrey, who now lives in Manhattan with her son, said that while the benefits would help her financially, she is more upset at what the denial says about her decision to raise a family with Ms. Caracappa.

"To have some government agency come in and say Camille was not his mother was very upsetting," Ms. Kadrey said. "He has her last name, not mine. He was baptized in the Catholic Church, because her family is Catholic, I am not. It was hurtful to everybody."

Ms. Caracappa's mother, Theresa Caracappa, 68, is even more determined than Ms. Kadrey to fight the matter. "It doesn't matter if you're two women," she said. "It never mattered to us. When we knew that Camille was gay, it was fine. She's my child. I loved her."

She added, "I just want Nicolaj to get what is rightfully his."