En ventre sa frigidaire: posthumous children in the succession context

Abstract

A principal concern of inheritance law is defining the relatedness of individuals. In this context the posthumously born child has to be defined in or out of a kinship network for inheritance purposes. Historically the concerns were ones of paternity and, with it, legitimacy. For the posthumously born child these were vital questions, as the illegitimate child was nullius filius, the son of nobody, and disentitled from inheritance. While modern inheritance law has moved away from the disabilities that illegitimacy once entailed, the responses to questions of relatedness in the context of children born through the new reproductive technologies suggest a different approach - one of exclusion. The frozen embryo which is implanted and born after the father's death raises anew the question of the validity of discriminating between children because of the circumstances of their birth. There is a struggle between the practicalities of the administration of an estate and the philosophy of equality which underpins the modern non-discriminatory approach to children born outside of marriage. This paper explores some of the issues and assesses some of the solutions in contemporary debate.