Features of the inheritance rights of children born as a result of artifical insemination

- the possibility of conception after the death of the testator creates the problem of exercise of inheritance rights by such children. Thus, the presumption of paternity established in Article 122 of the Family Code of Ukraine California Probate Code. Retrieved from https://codes.findlaw.com/ca/probate-code/prob-sect-249-5.html Family Code of Ukraine. (2002, January). Retrieved from https://protocol.ua/ua/simeyniy_kodeks_ukraini_stattya_123/, which determines the origin of a child born before the expiration of ten months after the dissolution of marriage, cannot be applied to this legal relationship. It is proposed to call children conceived after the death of the testator from his genetic material with the help of ART “post-mortem children”. Assisted reproductive technologies allow the use of donor and cryopreserved gametes during artificial insemination. This can cause legal issues, in particular with regard to the child's inheritance rights;

- the testator's consent to posthumous reproduction and the limitation of the period of conception of the child, as mentioned above, are recognised abroad as necessary conditions for calling for the inheritance of his posthumously conceived children, but in order not to imbalance the regulation and the period of conception or time of birth of the child-heir, is defined more thoughtfully and humanely, and also the additional rules providing certainty of relations and preservation of hereditary property are established.

DISCUSSION

In legal doctrine, there are two opposing positions on the possibility of recognising inheritance rights for a child in Ukraine who was not only born but was conceived after the discovery of the inheritance. Proponents of the former deny the possibility of inheritance by post-mortem children, basing their position on the legal uncertainty that arises between the day of the opening of the inheritance and the possible birth of a child, which in turn can destroy the structure of all inheritance law [23]. E. Ryabokon emphasises that a will made in favour of a child conceived in the future must be declared invalid, and not based on a special rule of Article 1257 of the Civil Code of Ukraine¹, given the absence of violations regulated by it as grounds for invalidity (nullity) of the will, and under Part 1 Article 203 of the Civil Code of Ukraine Civil Code of Ukraine. (2003, January). Retrieved from https://protocol.ua/ua/tsivilniy_kodeks_ukraini_stattya_1222/ Ibidem, 2003., which, among the general conditions of the agreement, determines that the content of the transaction may not contradict the Civil Code, other acts of civil legislation, as well as the interests of the state and society, its moral principles [19]. However, opposite opinions are also expressed in relation to the issues under study.

In particular, D. Hudyma [9], A. Malkin [15] consider it appropriate to admit persons conceived as a result of IVF to inheritance after the death of the testator, by introducing corresponding changes to the current legislation. Some legal scholars conclude that the state of modern legislation allows to inherit persons born as a result of posthumous reproduction. Thus, O.A. Yavor came to the conclusion that the testator's child belongs to the heirs of the first order, regardless of the method of conception and gestation, as well as regardless of the date of birth after the death of the testator, if the testator left genetic material during his lifetime for a specific purpose regarding the subsequent birth of the child [8]. A. Kasatkina takes a similar position with the only caveat that the birth of a post-mortem child must take place within one year from the date of the opening of the inheritance [11].

The lack of legislative regulation of the problems of inheritance by persons conceived after the opening of inheritance forced researchers to look for other possibilities of solving them. Scientist V. Valakh proposes to use the mechanism of changing the order of obtaining the right to inherit, defined by Article 1259 of the Civil Code of Ukraine¹, considering the possibility of birth of a biological descendant of the testator. The author also considers it possible to establish such a condition of the will as the conception of a child after the death of the testator using his biological material. This is conditioned by the fact that the conscious desire of two people to give birth to an heir, even after the death of one of them, cannot be considered illegal, and therefore there is no reason to declare such a condition of the will invalid in court [7]. According to O. Zhuravlova, it is advisable to extend the legal status of nasciturus to a post-mortem child born in accordance with the will of the testator within a certain time after the opening of the inheritance [10]. The legal literature also suggests that the only way to transfer property from the inheritance to a person who was not conceived on the day of the opening of the inheritance is a testamentary renunciation [28].

The current legislation of Ukraine does not consider a legal heir, or a person conceived and born after the death of the testator with the use of assisted reproductive technologies to be legal. However, the recognition of the testator as the heir of a postmortem child concerns not only the implementation of the principle of freedom of will, but is also closely related to the personal non-property right of an individual to reproductive choice. According to R. Stefanchuk, the meaning of this right refers to a person's choice of the way in which they will perform a reproductive function - by natural biological means or using safe, effective, affordable, and acceptable assisted reproductive technologies permitted in Ukraine and international treaties, consent on the binding nature of which was granted by the Verkhovna Rada of Ukraine [21]. According to O. Kukharev, it is possible to expand the personal inalienable human right to reproductive function, including in its content the choice of the timing of this function - during the life of the person or after their death [14]. The scientist believes that, despite the fact that artificial insemination from the genetic material of the testator is carried out after their death, the exercise of the right to reproductive choice in this case can reasonably be recognised as a person's consent to such reproductive technology. The regulatory potential of private law in the context of its adequate impact on hereditary relations is not fully used, which requires amendments to the Book 6 of the Civil Code of Ukraine Civil Code of Ukraine. (2003, January). Retrieved from https://protocol.ua/ua/tsivilniy_kodeks_ukraini_stattya_1222/ Ibidem, 2003.. In particular, to expand the dispositive basis of inheritance law, A. Kukharev proposes to include the children of the testator, conceived after his death in the circle of heirs by will. It is proposed to call such persons “post-mortem children”. The lawyer substantiates the following conditions for granting them inheritance rights: the presence of appropriate will of the testator in the will, insemination with the use of assisted reproductive technologies exclusively by the genetic material of the testator within six months established for acceptance of the inheritance. Notably, the proposed innovation will contribute to the implementation of the principle of freedom of will and the exercise of personal non-property right of the testator to reproductive choice.

However, not all modern bioethics experts agree with the thesis that new reproductive technologies bring future generations only benefit. Any interference with the natural process can have negative consequences. Scientific advances allow to extract and use the gametes of a deceased person, thus creating a child after the death of the genetic father. Sh. Simana, examining and comparing the legislation governing postmortem reproduction in the United States, Britain, Australia, and Israel, concludes that each country has its distinctive features, but there are three common elements: legal ambiguity, requiring prior consent and permission from the partner, but not their parents, to remove and use the deceased's gametes. The scholar states that courts often do not comply with the law, and therefore there are no clear guidelines for post-mortem reproduction [22]. S. Simana gives three excuses for the implementation of posthumous reproduction in the absence of prior consent of the deceased. The first excuse is related to the interest in “genetic inheritance”, which reflects the desire of people to leave a “particle” of themselves in the world and maintain the chain of succession. The second justification concerns the model of autonomy of “respect for desires”, according to which people should be treated the way we assume that they would like to be treated. The third excuse affects the interests of the partner and parents of the deceased, as well as the newborn child.

Based on the results of this scientific discussion, the following conclusions can be drawn:

- in modern realities in Ukraine, there are opposing positions on the possibility of recognising inheritance rights for a child who was not only born but was conceived after the discovery of the inheritance. Some deny the possibility of inheritance by post-mortem children, others consider it appropriate to allow the inheritance of persons conceived as a result of IVF after the death of the testator, by introducing appropriate changes to current legislation;

- legal scholars substantiate the following conditions for granting hereditary rights to children born as a result of artificial insemination: the presence of appropriate will of the testator in the will, insemination with the use of assisted reproductive technologies exclusively by the genetic material of the testator within six months. The proposed innovation will contribute to the implementation of the principle of freedom of will and the exercise of personal non-property right of the testator to reproductive choice.

CONCLUSIONS

Recent advances in medical technology have led to possible conflicts with succession. Three specific medical advances that cause inheritance laws to malfunction are artificial insemination, surrogacy, and post-mortem children. Assisted reproductive technologies allow the use of donor and cryopreserved gametes in artificial insemination, which can cause legal issues, in particular the right to inherit the child. It can be concluded that hereditary relations involving children born through artificial insemination require detailed legislation, such children are the most vulnerable subjects of these relationships, so there are many problems in this area of law enforcement. Existing legal provisions do not meet the interests of heirs, such as surrogate mothers and post-mortem children. The following issues remain unresolved in legislation: the procedure for registration of a child born to a surrogate mother, in case of divorce of the genetic father and mother, in case of death of the genetic parents (or one of the parents) at the time of the child's birth; issues related to the execution of documents for the export of children from Ukraine who were born as a result of the legal process of infertility treatment by surrogacy and who are registered with the civil registry office as children of their biological parents. It is also necessary to point out the fact that the possibility of conception after the death of the testator creates a problem of exercise of inheritance rights by such children. Therefore, the presumption of paternity established in Article 122 of the Family Code of Ukraine, which states the origin of a child born before the expiration of ten months after the termination of marriage, cannot be applied to this legal relationship.

As a result of the analysis, it was concluded that the consent of the testator to posthumous reproduction and the limitation of the period of conception of a child are recognised abroad as necessary conditions for inheritance by posthumous conceived children, but in order not to unbalance the regulation and not violate the interests of all persons involved, a period that limits the period of conception or birth of a child-heir is determined more thoughtfully and humanely, and additional rules are established to ensure certainty of relations and preservation of hereditary property. In Ukraine, there are opposing views on the possibility of recognising inheritance rights for a child who were not only born but also conceived after the discovery of the inheritance. Some legal scholars deny the possibility of inheritance by post-mortem children, others consider it appropriate to allow the inheritance of persons conceived as a result of IVF after the death of the testator, by introducing appropriate changes to current legislation. Lawyers substantiate the following conditions for granting hereditary rights to children born as a result of artificial insemination: the presence of appropriate will of the testator in the will, insemination with the use of assisted reproductive technologies exclusively by the genetic material of the testator within six months. The proposed innovation will contribute to the implementation of the principle of freedom of will and the exercise of personal non-property right of the testator to reproductive choice.

These circumstances demonstrate that the legislation of Ukraine does not fully consider the current achievements of reproductive medicine. At present, the legislator must clearly identify possible options for the development of events, because these issues are increasingly arising in practice and remain, unfortunately, unresolved. Furthermore, as a result of the proposals made by lawyers, it will be possible to avoid many controversial issues in establishing the inheritance rights of children born with the help of assisted reproductive technologies.

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