PROMOTING ACCESS TO AFRICAN RESEARCH

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Inheritance rights for posthumously procreated children: A growing challenge for the law

Justin d'Almaine, Frederick Noel Zaal

Abstract


Significant advances in cryogenic technology render it possible to freeze and store human gametes. Under appropriate laboratory conditions frozen gametes can remain viable for long periods of time. In consequence, it is possible for a child to be conceived and procreated after the death of one or both parents. This raises some challenging juristic problems. Amongst these are implications for the law of inheritance. Where a valid will expressly refers to a child who will be procreated after the testator's death, the child's right to inherit will be secured. However, where a will merely refers to children as a class, or with intestate succession, it becomes uncertain whether a posthumously procreated child has a right to inherit. South African legislation governing succession, the common law and the Constitution of the Republic of South Africa, 1996 all fail to provide definitive answers. Because of this and as the numbers of posthumously procreated children are likely to increase as artificial reproduction services become more widely available, there is a need for South African legislation to clarify their inheritance rights.


Keywords:Cryogenics; post-mortem conception; posthumous procreation; children's inheritance; nasciturus doctrine; intestate succession; posthumous child; in vitro fertilisation.




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