Robert Capato was diagnosed with esophageal cancer in 1999. Knowing that his treatment would potentially render him sterile, he deposited his semen to a sperm bank for his wife’s, Karen Capato, later use. The couple managed to conceive a child naturally during Robert’s treatment, but he died seven months after his first child was born. Ten months after Robert’s death, Karen used in vitro fertilization with Robert’s sperm to conceive another child. Eight months later, Karen birthed two male twins. This case poses several legal questions. This opinion answers them in such an order that the answers to preceding questions inform the answer to succeeding questions. That is, the legal reasoning follows in the order that the questions are answered. …show more content…
Ulpian writes that “[w]hen conubium is not present, [children] accede to their mother’s legal status.” Conubium is “the capacity to take a wife legitimately,” yet, in spite of its outwardly androcentric definition, conubium is treated in law as a marriage’s collective quality rather than as an individual “capacity.” More appropriately stated, a relationship with conubium is one in which both parties have the “capacity” to marry legitimately. Semantics aside, there is no conubium without two parties to share it. As Karen was unmarried when the twins were both conceived and birthed, conubium is not present in this case, and the twins therefore “accede to [her] legal status.” Ulpian also provides that “in the case of children not legitimately conceived, [the time of] birth [is observed in determining the child’s status],” so Karen’s status at birth decides the status of her twins. As Karen is a sui iuris citizen, so too are the twins.
Second, Karen is legally required to provide care to the twins, and the twins are similarly required to support Karen, for Ulpian “compel[s] a mother to support especially her illegitimate children; and (conversely) them (to support) …show more content…
The most pertinent definition of the term familia is “a number of persons who, either by nature or by law, are subjected to the power of one person.” The pater familias is the “one person” to whom the members of his household are subjected. In effect, the pater familias is typically a father whose children are subjected to his power as the head of the household (pater familias). However, a pater familias could be both unwed and childless and still retain the legal title. Such is the case with the Capato’s twins. To see why the twins rightfully assume the pater familias title, first recall that the twins have no legal tie to the once-pater familias Robert, so he cannot be their pater familias. Next, consider the possibility that the twins’ older, naturally conceived brother is their pater familias. The law does not support this possibility because siblings could not, under any ordinary circumstances, have power over one another. Ulpian implies this sibling equality when he describes people who “are subjected to the power (potestas) of one person: … a son or daughter in their father’s power, and those who then follow them in turn, for example, grandsons and granddaughters (from sons), and so on.” It appears from this statement, and from the absence of any known circumstance in which a sibling is pater familias over another, that the