Girl conceived after father's death is denied SSA benefits.

Three-year-old Judith Hart of Slidell, Louisiana, should not get Social Security survivors' benefits because she was literally no more than a twinkle in her parents' eyes when her father died of cancer, according to the federal government.

Judith Hart was conceived through artificial insemination three months after Ed Hart died. From the government's point of view, that means the girl cannot be considered a surviving dependent, so she has been deemed ineligible for about $700 in monthly benefits through the Social Security Administration (SSA). Judith's mother, Nancy, has filed suit in federal court in Louisiana to overturn the agency ruling. (Hart v. Shalala, No. 94-3944 (E.D. La. filed Dec. 12,1994).)

SSA looks to state law when determining benefits eligibility. No state recognizes children conceived after the death of a parent as lawful heirs or surviving dependents under the Social Security Act.

In fact, Louisiana law considers Judith Hart to be illegitimate, according to a memorandum opinion written by the general counsel's office of the Department of Health and Human Services, which oversees SSA.

"A child born three hundred days or more after the dissolution of the marriage [which occurred on Ed Hart's death] is not presumed to be the child of the husband," wrote Charlene Seifert, acting chief of the Social Security litigation branch. 'It is our opinion that under Louisiana law, Judith Hart could not be in the line of succession from Edward Hart because she was not conceived at the time of his death."

"Judith was Ed's last gift to me," Nancy Hart said. "I want her to know who her father was and to be recognized as his child."

Ed Hart learned he had cancer of the esophagus in March 1990, four years after his marriage to Nancy. When Hart's doctors recommended he undergo chemotherapy treatment, they also suggested he arrange to have his sperm stored because the effects of the radiation would likely make him sterile. If he survived the cancer, he would still be able to father a child. If he died, Nancy Hart could still have a child with her husband.

Ed Hart died about two months later. Nancy was impregnated with his sperm in September and gave birth to their daughter on June 4.

"A young child has been denied legal recognition as her father's daughter and heir and refused the survivors' benefits to which she would have been entitled had she been conceived only three months earlier," said Kathryn Kolbert, vice president of the Center for Reproductive Law and Policy in New York. The organization is representing Hart in her lawsuit against the government.

Hart's suit claims that the Social Security Act and the Louisiana intestate succession statutes violate her constitutional rights to equal protection and privacy.

U.S. Health and Human Services Secretary Donna Shalala, Louisiana Gov. Edwin Edwards, and the Louisiana attorney general are named as defendants in the suit.