STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 28, 1969

Peter J. Grossmann, State Director
Public Welfare
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-77

Eligibility of unborn child for aid to dependent children

Dear Mr. Grossmann:

I have your letter of August 6, 1969, requesting an official opinion on this subject. For the purpose of clarity, we are quoting your entire letter at length herein:

"Your opinion is respectfully requested with regard to eligibility for assistance under the Aid to Dependent Children program of the State Department of Public Welfare.

"We specifically inquire if a child conceived, but not born, is entitled to be treated as a dependent child under applicable state laws for the purpose of granting sustenance and medical care for the mother of the child during pregnancy under the Aid to Dependent Children program.

"By federal law and regulation, it has long been possible to grant assistance in such cases, as an optional rather than a mandatory provision, depending upon authority of the state agency under state law. As a result of the opinion of your predecessor dated May 23, 1946, Aid to Dependent Children has not been granted in such circumstance in South Dakota, prior to birth of the child. Costs of prenatal care and confinement for indigent unmarried mothers in cases where other resources were not available, has instead been borne by the state through appropriations provided for child welfare services without federal financial participation.

"In reviewing the previous opinion, we note that some portions of the statute pertaining to eligibility qualifications are no longer applicable. The current reference would be SDCL 1967 28-7-3(1). We note that all durational residence requirements have been rendered void by decision of the United States Supreme Court in Shapiro v. Thompson and related cases. It would seem that such portions of the cited section which remain valid would not militate against interpretation of the definition section as entitling assistance, particularly in view of the provision of general law now cited as SDCL 1967 26-1-2. The question is further germane at this time as a result of the consolidation of all services to children within a single organizational unit at the state level, which has resulted from the 1967 amendments to the Federal Social Security Act."

The former Attorney General's opinion that you refer to, dated May 23, 1946, is found in 1945-46 AGR 338. The question was presented at that time because of the provisions of SDC 43.0102 now found at SDCL 1967 26-1-2 which provides as follows:

"A child conceived, but not born, is to be deemed an existing person so far as may be necessary for its interests in the event of its subsequent birth."

That opinion, because of the definition of "dependent child" and the eligibility requirements set out in the Code, ruled that a pregnant woman was not eligible for assistance from the appropriation or funds available for aid to dependent children and to place any other interpretation on the act would be to extend it beyond the plain objective of the statute.

I concur with the conclusion of my predecessor, but do not agree completely with the reasoning employed.

A dependent child is defined in Section 28-7-1(2) as follows:

"'Dependent child,' a needy child under the age of eighteen, who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with a person in a place of residence maintained by such person as his or their home; provided, however, that a child living with a stepparent shall not be regarded as a needy child when it is determined by the county director of public welfare under the rules and regulations adopted by the state public welfare commission that the stepparent is capable of supporting the child;"

That definition is obviously not referring to unborn children and it is impossible to put that interpretation on such definition.

It is believed that the reference to eligibility requirements in the former opinion which is now found at section 28-7-3 was unnecessary and is surplusage to the conclusion reached.

Respectfully submitted,

Gordon Mydland
Attorney General