Постмортальные дети в семейном и наследственном праве: «Быть или не быть, вот в чем вопрос…»

Abstract

In this article the author considers the issues related to the legal status of post mortem children in family and inheritance law. The medical practice of posthumous reproduction has led to the birth of heirs during a long period after the death of the testator. The possibility of “creating” such heirs inevitably raises the question of the infinity of hereditary succession, the appearance of “lying inheritance” and eternal heirs. At the same time, the current regulation, focused mainly on the natural method of reproduction, does not allow establishing the origin of a postmortal child from a deceased parent, as well as “providing” him with a legal status in hereditary terms. The literal interpretation of Article 1116 of the Civil Code in the context of posthumous reproduction entails the necessity to define the term “conceived during the life of the testator” in order to clarify which of the stages of conception should be relevant for inheritance law: the moment of creation or implantation of the embryo. The comparative analysis of foreign legislation shows that the most liberal approach regarding the implementation of posthumous reproduction and the granting of inheritance rights to children born after the death of the testator is in Israel. At the same time, the approach of a number of US states should be recognised as the most balanced, taking into account all the interests. The research also made it possible to conclude that the recognition of postmortem children as heirs both by law and by will does not contradict the ideology of inheritance law.