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En ventre sa frigidaire: posthumous children in the succession context

Published online by Cambridge University Press:  02 January 2018

Rosalind Atherton
Rosalind Atherton*
Affiliation:
University of Sydney
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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.

Type
Research Article
Information
Legal Studies , Volume 19 , Issue 2 , June 1999 , pp. 139 - 164
Copyright
Copyright © Society of Legal Scholars 1999

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References

1. The Browns wrote their own story of Louise's birth: Our Miracle Child Called Louise, A Parent's Story (London: Paddington Press, 1979).

2. Discussed in J Keenan ‘Science and the Law - Lessons from the Experience of Legislating for the New Reproductive Technology’ (1985) 59 ALJ 488 at 490; W Feldman Frozen Embryos: to be or not to be, that is one of the questions (1984) 12 (10) Legal Aspects of Medical Practice 8: G P Smith II ‘Australia's Frozen “Orphan” Embryos: A Medical, Legal and Ethical Dilemma (1985–86) 24(1) J Fam L 27, more recent discussion is found in K V Lorio ’From Cradle to Tomb: Estate Planning A Considerations of the New Procreation (1996) 57 La LR 27 at 41–43: B Brown ‘Reconciling Property Law with Advances in Reproductive Science (1995) 6(2) Stanford Law and Policy Review 73 at 77: and D Fabricant ’International Law Revisited: Davis v Davis and the need for Coherent Policy on the Status of the Embryo (1990) 6 Conneticut J Int Law 173 at 183. See discussion below.

3. Hecht v Superior Court of Los Angeles County 20 Cal Rptr 2d 775 (Ct App 1993). See discussion below.

4. Estate of K (1996) 5 Tas R 365.

5. The Independent, 13 December 1998, p I. Mrs Blood had to bring proceedings to obtain access to the stored sperm: R v Human Fertilisation and Embryology Authority, ex p Blood (1997) 2 All ER 687, CA. The case is discussed, for example, in D Morgan and R G Lee ‘In the Name of the Father? Ex p Blood: Dealing with Novelty and Anomaly (1997) 60 MLR 840; and T K Harvey, ’Buy Baby: The European Union and Regulation of Human Reproduction (1998) 18 OJLS 207. There are similar examples of ‘gamete harvesting in the United States: see J E Bailey ’An Analytical Framework for Resolving the Issues Raised by the Interaction between Reproductive Technology and the Law of Inheritance (1998) 47 De Paul LR 743 at 760.

6. AB v A-G of Victoria, unreported, SC (Vic), Gillard J, 21 July 1998. An account of the case was reported the following day: Daily Telegraph, 22 July 1998, p 1. Under Victorian legislation it is unlawful for a woman to be inseminated with sperm from a man known to be dead: Infertility Treatment Act 1995 (Vic). The applicant would therefore have to seek to have the semen moved to another jurisdiction in order for insemination to take place.

7. Some of the historical background is found in R Scott The Body as Property (London: Allen Lane, 1981) ch 8; E D Shapiro and B Sonnenblick ‘The Widow and the Sperm: The Law of Post-mortem Insemination (1986–87) I J Law and Health 229; K Mika and B Hurst ’One Way to be Born? Legislative inaction and the Posthumous Child (1996) 79 Marquette LR 993 at 995–996.

8. A summary of the various techniques can be found in L C Nolan ‘Posthumous Conception: A Private or Public Matter? (1997) 11 BYUJ Public Law 1 at 3–6; E McAllister ’Defining the Parent-Child Relationship in an Age of Reproductive Technology: Implications for Inheritance (1994) 29 Real Property, Probate and Trust J 56 at 58–65; K U Stephens ‘Reproductive Capacity: What Does the Embryo Get? (1997) 24(2) Southern Univ LR 263 at 265–268; K Mika and B Hurst, above n 7 at 995ff.

9. A description coined by a student of Professor W Barton Leach and cited by Leach in his ‘Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent (1962) 48 ABAJ 942 at 943, n 3.

10. Compare eg the approaches in Bailey, above n 5; Stephens, above n 8; J Nedelsky ‘Property in Potential Life? A Relational Approach to Choosing Legal Categories (1993) 6(2) Can J Law and Jurisprudence 343; K R Guzman ’Property. Progeny, Body Part: Assisted Reproduction and the Transfer of Wealth (1997) 31 U Calif Davis LR 193: and R Chester Freezing the Heir Apparent: a Dialogue on Postmortem Conception, Parental Responsibility and Inheritance (1996) 33 HLR 967.

11. J Brydall Lex Spuriorum or The Law Relation to Bastardy (London, 1703) p 4 (rep Garland Publishing NY in facs, 1978). See generally P Laslett (ed) Bastardy and its Comparative History (London: Edward Arnold, 1980).

12. New Zealand led the way with the introduction of the Status of Children Act 1969, which was mirrored to a great extent in legislation throughout Australia from the 1970s; and in the United Kingdom in the Family Law Reform Act 1969 and Family Law Reform Act 1987.

13. See eg the various articles cited throughout the notes and the many other references cited in them.

14. Guaman, above n 12 at 203.

15. 22 & 23 Car II c 10 s 8: … provided also to the end that a due regard be had to creditors that no such distribution of the goods of any person dying intestate be made till after one year be fully expired after the intestate's death.

16. Bird v Lockey (1716) 2 Vern 743; Re Tyson (1906) 7 SR (NSW) 91; Re Plowright (1971) VR 128.

17. Re Hayward (1934) SASR 364 at 367, Murray CJ; Wood v Penoyre (1807) 13 Ves 325 at 333, per Sir William Grant MR.

18. (1791) 3 Bro CC 401; 29 ER 610.

19. J H C Morris and W Barton Leach The Rule Against Perpetuities (London: Stevens & Sons, 2nd edn, 1962) pp 109—125.

20. (1841) 4 Beav 115; 49 ER 282.

21. An excellent historical account of the development of the rule is found in G L Haskins “Inconvenience” and the rule for perpetuities (1983) 48 Missouri LR 451.

22. Sir E. Coke Coke upon Littleton (19th edn, F Hargrave and C Butler) (London, 1832) 3b; Blackstone's Commentaries, vol 1, p 447; R v Hodnett (1786) 1 TR 96, 99 ER 993.

23. Sir Pollock, F. and Maitland, F. W. The History of English Law Before the Time of Edward I (Cambridge: Cambridge University Press, 2nd edn, 1898) II, p 378 Google Scholar.

24. See also Coke upon Littleton. above n 22, s 188.

25. The common law required birth within marriage for legitimacy, while canon law, applied in the ecclesiastical courts, recognised legitimation by subsequent marriage: Blackstone's Commentaries, vol 1, p 442; Pollock and Maitland, above n 23, vol 1, p 378 n 1; Lex Spuriorum, above n 11, pp 44–46.

26. Blackstone's Commentaries, I, 434, 442–444. See eg the discussion in Re L (An Infant) (1968) P 119 at 153, Denning LJ.

27. Dispositions in wills: Doe v Clark (1795) 2 H BI 399; 126 ER 617; V v G (1980) 2 NSWLR 366; Re Lawrence (1973) Qd R 201. Next of kin or heir: Ball v Smith (1698) 2 Freem 230; 22 ER 1178; Wallis v Holden (1740) 2 Atk 114; 26 ER 472. Lex Spuriorum, n 7 above, pp 95–97, gives a summary of the common law rules of the time.

28. Lex Spuriorum, above n 11 at 118–119 gives a detailed case example of the writs which were used in the case of Bridget Willoughby, widow of Percival Willoughby. At common law, two writs issued. The first, the writ ‘de ventre inspiciendo (for inspection of the abdomen), was to ascertain whether the widow was pregnant and to estimate how advanced was the pregnancy. This was determined by 12 women (the ’jury of matrons) in the presence of 12 knights. The second writ could issue where it was determined that the woman was pregnant. It directed the woman's removal to a castle where the sheriff was to keep her safely and where some of the 12 were to see her daily and some were to be present at the birth. By later in the eighteenth century this procedure was modified to merely periodical inspection on reasonable notice by two women nominated by the heirs whose claims could be defeated by the birth of the child. The last reported case of the writ is believed to be in 1845: Re Blakemore (1845) 14 LJ Ch 336. The civil law took a similarly strict approach to widows who claimed to be pregnant: Lex Spuriorum, above n 11, pp 123–127.

29. Doe v Clark (1795) 2 H BI 399; 126 ER 617; V v G (1980) 2 NSWLR 366: Re Lawrence (1973) Qd R 201. Specific legislation was introduced in 1699 to cover the case of children entitled to remainder interests in settlements, so that posthumous children would be included: (1699) 10 & 11 Will 3 c 16.

30. A child en ventre at the beginning of the perpetuity period and afterwards born alive was deemed to be a life in being: Long v Blackall (1797) 7 TR 100; Thelluson v Woodford (1799) 4 Ves 227; (1805) 11 Ves 112; Blackburn v Stables (1814) 2 V & B 367; Re Wilmer's Trusts (1903) 2 Ch 41; Cadell v Palmer (1833) 1 C1 & F 372.

31. Ball v Smith (1698) 2 Freem 230; 22 ER 1178; Wallis v Holden (1740) 2 Atk 114; 26 ER 472.

32. New Zealand led the way with the introduction of the Status of Children Act 1969. which was mirrored to a great extent in legislation throughout Australia from the 1970s: ACT: Birth (Equality of Status) Act 1988 (ACT); Wills Act 1968 (ACT), s 31 A (in relation to wills); NSW: Children (Equality of Status) Act 1976; NT: Status of Children Act 1978 (NT): Qld: Status of Children Act 1978; SA: Family Relationships Act 1975;Tas: Status of Children Act 1974; Vic: Status of Children Act 1974: WA: Wills Act 1970, s 31 (wills); Inheritance (Family and Dependants) Provision Act 1972, s 4(4) (family provision); Administration Act 1903, s 12A (intestacy). See MA Neave ‘The Position of Ex-Nuptial Children in Victoria (1976) 10 MULR 330. This legislation is the most significant development in the law regarding the status of children, for it abolished, in legal terms at least, the status of illegitimacy and its consequences in the law of inheritance.

33. Some celebrated examples include Davis v Davis (1992) 842 SW 2d 588 (Tenn Sup Ct) (divorce proceeding; claim to stored embryos); York v Jones (1989) 717 F Supp 421 (couple suing storage institution to have embryos transferred to another institution): Kass v Kass (1998) 98 NY Int 0049,7 May 1998 (divorce proceeding, claim to five stored embryos).

34. See above nn 3 and 5.

35. In the absence of an authorised report, the account of the case is drawn from E D Shapiro and B Sonnenblick ‘The Widow and the Sperm: The Law of Post-mortem Insemination (1986–7) 1 Jnl of Law and Health 229. This account was also relied on by the Californian Court of Appeal in Hecht v Superior Court of Los Angeles County 20 Cal Rptr 2d 775 (Ct App 1993).

36. See the discussion below.

37. An excellent summary and analysis of the law in this area is found in R S Magnusson ‘Proprietary Rights in Human Tissue in N E Palmer and E McKendrick (eds) Interests in Goods (Lloyds of London Press, 2nd edn, 1998); and P Matthews ’Whose Body? People as Property (1983) 36 CLP 193.

38. Hayne's case (1614) 12 Co Rep 113; 77 ER 1389; R v Sharpe (1856-57) Dears & Bell 160: 169 ER 959

39. Handyside (1749) 2 East PC 652; Williams v Williams (1882) Ch 659; also Doodeward v Spence (1908) 6 CLR 406 at 420, per Higgins J (dissenting). The basis of the rule has been criticised as being founded upon inadequate reporting and misreading of early cases and perhaps also a sense of demarcation between matters within the cognisance of ecclesoastocal courts and courts of common law. Paul Matthews and Roger Magnusson have also questioned reliance upon statements of principle in early cases because, they assert, expressions of judicial support for the rule were confined to obiter dicta: Matthews, above n 37; Magnusson above n 37, p 10.

40. 2 Bl Comm 508; Green v Salmon (1838) 8 Ad & E 348: 112 ER 869; Williams v Williams (1882) 20 Ch 659: Sharp v Lush (1879) 10 Ch D 468; Dobson v North Tyneside Health Authority (1996) 4 All ER 474, per Butler-Sloss, Peter Gibson and Thorpe LJJ. Prima facie, this right was vested in the executor of the deceased's estate. In circumstances where an executor was not appointed and the duty to bury a corpse fell on other persons, that right to possession for the purposes of burial was vested in those persons: Matthews, above n 37 at 214, citing the following cases as examples: R v Stewart (1840) 12 Ad & E 773, 113 ER 1007; R v Vann (1851) 2 Den 325, 169 ER 523.

41. R v Fox (1841) 2 QB 246; R v Scott (1842) 2 QB 248. The jailer was ineffect seeking to assert a possessory lien over the body. When the executors refused to pay his demand, the jailer threatened to bury the body in the precincts of the jail. Apparently, he had even begun digging the grave.

42. Robertson v Pine Grove Memorial Park Ltd v Swann (unreported) SC (NSW), Waddell. CJ in Eq. 5 June 1986 (Eq 1956/86); Calma v Sesar (1992) 106 FLR 446; Burnes v Richards (unreported) SC (NSW), Cohen J, 6 October 1993 (4534/93); Brown v Tulloch. (unreported) SC (NSW), Waddell CJ in Eq, 18 October 1992; Smith v Tamworth City Council (unreported) SC (NSW), Young J, 14 May 1997 (4196/96). Further discussion of the Australian position may be found in: A Dickey ‘Parental Rights and Duties upon the Death of a Child (1992) 66 ALJ 35–36; A Dickey ’More on Parental Rights to Bury a Child (1993) 67 ALJ 149; S G Hume ‘Dead Bodies (1956) 2 Sydney LR 109; P W Young ’Disposal of bodies (1992) 66 ALJ 759; (1993) 67 ALJ 149 (note on Calma v Sesar); (1994) 68 ALJ 67 (note on Burnes v Richards): Magnusson, above n 37, pp 34–35.

43. Above n 42.

44. Brown v Tulloch (unreported) SC (NSW), Waddell CJ in Eq, 18 October 1992.

45. R v Stweart (1840) 12 Ad & E 773; 113 ER 1007.

46. For further consideration of the problem see S G Hume ‘Dead Bodies (1956) 2 Syd LR 109.

47. See eg Calma v Sesar (1992) 106 FLR 446 (competing claims by father and mother of an illegitimate adult - mother's claim preferred as body was to be buried where it was then located); Warner v Levitt (unreported) SC (NSW), 23 August 1994, Brownie J, following the English decision in R v Gwynedd County Council, ex p B (1992) 2 All ER 317 (foster parents and natural parents, latter preferred); Smith v Tamworth City Council (unreported) SC (NSW), Young J, 14 May 1997 (4196/96) (adoptive and natural parents - former preferred).

48. Pierce v Proprietors of Swan Point Cemetery (1872) 10 RI 227; 14 Am Rep 667, 677; Brotherton v Cleveland 923 F 2d 477 (6th Cir 1991); Whaley v County of Tuscola 1995 Fed App 0205P (6th Cir); Everman v Davis 561 NE 2d 547 (Ohio Ct App 1989). See the discussion in Matthews, above n 37 at 200–203; Magnusson, above n 37, pp 32–34.

49. Rivers v Greenwood Cemetery 22 SE 2d 134 (1942); Meek v State 185 NE 899 (1933). 50 Autopsy: Larson v Chase 50 NW 238 (1891); Gray v Southern Pacific Co 68 P 2d 1011 (1937); Torres v State of New York 228 NYS 2d 1005 (1962). Improper burial: Speigal v Evergreen Cemetery 186 A 585 (1936); Cohen v Groman Mortuary Inc 41 Cal Rptr 481 (1964). Unauthorised re-interment: Gostlowski v Roman Catholic Church of the Sacred Hearts of Jesus and Man, 186 NE 798 (1933). See Magnusson, above n 37, pp 32–34.

51. Williams v Williams (1882) 20 Ch 659. Courts in the United States have taken a different approach, upholding the testator's instructions as to burial or other disposal, so long as they are not absurd, wasteful of property or indecent: Smart v Moyer 577 P 2d 108(Utah 1978)at 110; Wood v ER Butterworth & Sons 118 P 212 at 214(1911); Yone v Gorman 152 NE 126,128 (NY 1926); Bruning v Eckman Funeral Home 693 A 2d 164 (NJ Super Ct App Div 1997). See the discussion in ‘Validity and Effect of Testamentary Directions as to Disposition of the Testator's Body (1966) 7 ALR 3d 747.

52. Doodeward v Spence (1908) 6 CLR 406. The three members of the court expressed differing views as to whether there was property in a dead body. Griffith CJ, for example, considered that a body which had so changed by the lawful exercise of human skill could become the subject of property (at 414). And Higgins J, the dissenting judge, commented that a mummy ‘has been turned into something very different by the skill of the embalmer (at 422); Barton J also thought the baby in question was different from a stillborn foetus, that it had acquired ’considerable monetary value, not as a corpse, but as something so unlike an ordinary corpse as to be a curiosity (at 416). The court, however, endorsed the no property in a body principle as a general rule: Higgins J (at 418–419); Barton J (at 417); Griffith CJ (at 411–412). See the analysis of the case in Matthews, above n 37; and Magnusson, above n 37.

53. Legislation may give express permission to retain a body for anatomical or medical examination: for example, in the United States under the Uniform Anatomical Gift Act 1987; in the United Kingdom under the Anatomy Act 1984 and Human Tissue Act 1961; and in Australia under similar legislation in each jurisdiction: Transplantation and Anatomy Act 1978 (ACT), ss 27,28,37,38; Anatomy Act 1977 (NSW), ss 8,8A; Human Tissue Transplant Act 1979 (NT), ss 18. 19: Transplantation and Anatomy Act 1979 (Qld), ss 31, 32; Transplantation and Anatomy Act 1983 (SA), ss 29. 30: Anatomy Act 1964 (Tas), ss 9-12; Human Tissue Act 1982 (Vic), s 32: Anatomy Act 1930 (WA), s 10. See P D G Skegg The Use of Corpses for Medical Education and Research: the Legal Requirements (1991) 31 Medicine, Science and the Law 345. One particularly interesting mummy in terms of legal history is that of Jeremy Bentham, one of the great English legal reformers and philosophers, preserved as a result, it seems, of a perverse sense of retaining a postmortem presence. Jeremy Benthain died in 1832, the first year of operation of the first Anatomy Act. The legislation and his position as one of the founders of University College, London, evidently inspired him. Bentham's will contained elaborate provisions concerning the fate of his body. He left his body to Dr Southwood Smith, an anatomist and author of ‘Uses of the Dead to the Living (1832) Lancet, in which it was suggested that the difficulties experienced by medical schools in acquiring bodies for dissection could be alleviated if people chose to bequeath their bodies to them. Bentham's body was to be dissected at a public lecture by Southwood Smith to be entitled ’The Structures and Functions of the Human Frame . The skeleton was then to be used as the armature of an image, an ‘auto-icon of himself, to be reassembled and clothed in Bentham's own clothes. The re-created Bentham was to be placed in a cabinet and presented to the College to be put on exhibition. To provide an incentive for the implementation of this plan, Bentham also left the college a legacy to pay for an annual dinner to honour his memory. ’Bentham is still wheeled into dinner twice a year and a toast made to his memory. Russell Scott noted that Bentham's head attracted particular interest. In response to the efforts of souvenir hunters. the original head was replaced by an artificial painted wax head: The Body as property, above n 7 p 167. (See also J Litten The English Way of Death: The Common Funeral since 1540 (London: Robert Hale, 1991 p 35.) A particularly sensitive topic in the contemporary context is the question of the retention of Aboriginal remains. The active role of the Australian Museum in Sydney in the encouragement of obtaining Aboriginal bodies in the 1880s and 1890s is detailed in P Turnbull Ramsay's Regime: the Australian Museum and the Procurement of Aboriginal Bodies, c 1874-1900 (1991) 15 Aboriginal History 108. See also the discussion in Magnusson, above n 37 pp 38–39.

54. J Litten (1961) 25 J Crim Law 163 - referred to in Magnusson. above n 37 p 44.

55. R v Rothery (1976) RTR 550. See also R v Welsh (1974) RTR 478. Both involved the theft of urine and blood samples, respectively, provided to the police for the purposes of blood alcohol tests pursuant to a statutory power authorising their collection. See Magnusson, above n 37 p 45; D Mortimer ‘Proprietary Rights in Body Parts: The Relevance of Moore's case in Australia (1993) 23 Monash ULR 217 at 245. Magnusson also provides a good summary of the question of the applicability of sale of goods and other similar legislation in the context particularly of blood transfusions: above n 37, pp 46–48.

56. (1975) 529 SW 2d 802.

57. (Unreported) 74 Civ 3855 (US Dist Ct, SDNY November 9, 1978). An account of the case is found in Nedelsky, above n 10 at 357 and T Feliciano ‘Davis v Davis What About Future Disputes? (1993) 26 Conn LR 305.

58. Feliciano, above n 57, notes at 314 that their alternative claim in conversion was rejected. There is no explanation as to why the jury rejected the property claim. However, in denying the hospital's motion for judgment notwithstanding the verdict, the court held that ‘the jury could reasonably have found liability on the conversion claim, but rendered a verdict for the defendants on the basis that the amount of damage for conversion was too speculative to be determinable.

59. See eg the very helpful discussion of these matters in Magnusson, above n 37.

60. I am not considering here the position of the anonymous donor, whose death is not a relevant question. The acceptance of donations of semen by someone who is not to have any relationship with the child possibly born through use of it makes their life/death irrelevant. On the topic of anonymous semen donations generally, see Chester, above n 10 at 996–997.

61. An authorised decision of this report was not available and so the following brief discussion is based on its consideration by ED Shapiro and B Sonnenblick ‘The Widow and the Sperm: The Law of Post-mortem Insemination (1986-7) 1 J Law and Health 229 and by the Californian Court of Appeal in Hecht v Superior Court of Los Angeles 20 Cal Rptr 2d 775 (Ct App 1993). Discussion of the case is found in: Nolan, above n 8 at 10; Lorio, above n 2 at 37–41; Kerekes R J Kerekes ’My Child… but not my Heir: Technology, the Law and Post-Mortem Conception (1996) 31 Real Property, Probate and Trust J 213 at 229–231; Mika and Hunt, above n 8 at 1008–1011.

62. Referring to art 1939 of the French Civil Code.

63. Hecht v Superior Court of Los Angeles Count?, above n 61 at 287.

64. 20 Cal Rptr 2d 275 (Cal App 2 Dist 1993). The case has been subject to detailed and widespread consideration. See eg the following, and the references cited in them: Bailey, above n 5; Chester, above n 10; Nolan above n 8; B Steinbock ‘Sperm as Property (1995) 6(2) Stanford Law and Policy Rev 57.

65. 20 Cal Rptr 2d 275 at 281.

66. Professor Jim Bailey, although an advocate of the property approach, gave a forceful criticism of the approach in Hecht v Superior Court of Los Angeles County 20 Cal Rptr 2d 775 (Ct App 1993), above n 5 at 748ff.

67. Eg: W Barton Leach ‘Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent (1962) 48 ABAJ 942; G P Smith II ’Through a Test Tube Darkly: Artificial Insemination and the Law (1968) 67 Michigan LR 127.

68. See eg above n2.

69. The Waller Report (after the Chair of the Committee, Professor Louis Waller) On the Disposition of Embryos, Produced by In Vitro Fertilization, released August 1984. It recommended that the embryos should not have legal rights, such as a claim to inheritance; and that where an embryo cannot be implanted as planned the embryos should be removed from storage: paras 2.1 8,2.19. Discussed below.

70. Infertility (Medical Procedures) Act 1984 (Vic).

71. Smith, above n 2 at 40.

72. The Independent, 13 December 1998, p 1, ‘“Elated” sperm row wife gives birth to a son’.

73. The Australian legislation is as follows: ACT Artificial Conception Act 1985; NSW: Artificial Conception Act 1984; NT: Status of Children Act 1978, ss 5A-5F Qld: Status of Children Act 1978, Pt III; SA: Family Relationships Act 1975, Pt IIA, IIB; Tas: Status of Children Act 1974, ss 10A-10C; Vic: Status of Children Act 1974, Pt II; Infertility (Medical Procedures) Act 1984; WA: Artificial Conception Act 1985. See the consideration of the legislation in the inheritance context by the author: ‘Artificially Conceived Children and Inheritance in New South Wales (1986) 60 Aust LJ 374.

74. New South Wales Law Reform Commission Artificial Conception Discussion Paper I: Human Artificial Insemination, November 1984, par 3.3, p 17, referring to the introduction of the Artificial Conception Act 1984 (NSW).

75. For a summary of the provisions see Chester, above n 10 at 1008ff.

76. In Australia: Senate Select Committee on Human Embryo Experimentation Bill 1985 (Cth) Report on Human Embryo Experimentation in Australia, 1986; Family Law Council Creating Children: A Uniform Approach to the Law and Practice Reproductive Technology in Australia (AGPS, 1985); New South Wales Law Reform Commission Artificial Conception: In Vitro Fertilisation LRC 58 (1988); Special Committee Appointed by the Queensland Government to Enquire into the Laws relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters Report (1984) ( Demack Report); Committee of Inquiry to Investigate Artificial Conception and Related Matters in Tasmania Final Report (1985) ( Chalmers Committee); The Committee to Consider the Social, Legal and Ethical Issues Arising from In Vitro Fertilisation Report on the Disposition of Embroys Produced by In Vitro Fertilisation (1984) (the Waller Report); Report of the Select Committee of the Legislative Council on Artificial Insemination by Donor. In Vitro Fertilisation and Embryo Transfer Procedures and Related Matters in South Australia (1987). UK: Great Britain Department of Health and Social Security Report of the Committee of Inquiry into Human Fertilisation and Embryology (1984) (the Warnock Committee Report). US: Ethics Advisory Board. Department of Health, Education and Welfare HEW Support of Research Involving Human In Vitro Fertilisation and Embryo Transfer (USA, 1979).

77. Discussed eg in E J Garside ‘Posthumous Progeny: A Proposed Resolution to the Dilemma of the Posthumously Conceived Child (1996) 41 Loyola LR 713 at 726ff; and Chester, above n 10 at 1003–1011

78. Section 4(b).

79. See Chester, above n 10 at 1010; Garside, above n 77 at 728–729.

80. Section 20–158(B). See Garside, above n 77 at 728–729; Chester, above n 10 at 1007–1008; Guzman, above n 10 at 226–227.

81. La Civ Code Ann, art 26; La Rev Stat Ann, s 9: 133. See Garside, above n 77; Chester, above n 10 at 1006–1007; Guzman, above n 10 at 226–227; Stephens, above n 8 at 190–291.

82. Hurt v Shalala No 94–3944 (ED La Dec 12, 1993), noted in Lorio, above n 2 at 45ff; Garside, above n 77 at 720ff; Kerekes, above n 61 at 232–240; Chester, above n 12 at 998–992.

83. (1996) 5 Tas R 365.

84. (1996) 5 Tas R 365. The case has been noted by D Clark ‘en ventre sa frigidaire: Zygotes as children (1996) 21 Alt W 165; ’Recent cases: Inheritance rights and artificial conception (1996) 70 ALJ 972: D Morgan ‘Rights and legal status of embryos (1996) 4(7) Aust Health Law Bulletin 1; N Watts ’When a Father Dies - Has a Frozen Embryo Rights to an Inheritance? Re Estate of K; Ex parte Public Trustee ALMD Advance, 3 June 1996; D Chalmers ‘Inheritance Rights of Embryos (1996) 15(1) Univ Tasmania LR 131; D Chalmers ’Frozen assets: The inheritance rights of embryos (1996) 31(1) Aust Lawyer 19; ‘Frozen Embryos: Rights of Inheritance. In Re the Estate of the Late K (1997) Med L Rev 121. The discussion of the case by the author appears also as ’Between a Fridge and a Hard Place: The Case of the Frozen Embryos or Children en ventre sa frigidaire (1998) 6(1) APLJ 53.

85. Referring to cases such as Paton v Trustees of the British Pregnancy Advisory Service (1978) 2 All ER 987; C v S (1987) 1 All ER 1230; Medhurst v Medhurst (1984) 46 OR 2d 263; Dehler v Ottawa Civic Hospital (1979) 25 OR 2d 748; (1981) 29 OR 2d 677.

86. Re Griffiths Settlement; Griffiths v Waghorne (1911) I Ch D 246; Elliott v Joicey (1935) AC 209. See also above.

87. Administration and Probate Act 1935 (Tas) s 3(3) provides that: ‘references to a child or issue living at the death of any person include a child or issue en ventre sa mere.

88. Estate of K (1996) 5 Tas R 365 at 371.

89. Ibid.

90. See above.

91. Ibid.

92. (1996) 5 Tas R 365 at 373.

93. No 94-3944 (ED La Dec 12 1993). The details of the case are summarised from: Garside, above n 77; Lorio, above n 2 at 45–48; Chester, above n 10 at 988–992; Kerekes, above n 61 at 232ff.

94. See Parpalaix case, above n 61.

95. The details of the claim are provided in Kerekes, 82 above, at 232ff.

96. Kerekes, above n 61 at 235.

97. In the particular case under Louisiana Civil Code, art 185.

98. La Civ Code, art 957. Garside, above n 77 at 721.

99. An additional argument in the case concerned the constitutional issue of equal protection - namely whether the exclusion of Judith from benefits in this case was unconstitutional as placing her in a different position from legitimate - and even, in this case, illegitimate children. Chester noted that the case was settled by the Social Security Administration which included the dropping of the federal suit on the constitutional issues: Chester, above n 10 at 1007.

100. See Atherton, above n 84.

101. See above n 73.

102. The procedures are defined in s 10B as: (a) the artificial insemination of a woman; or (b) the procedure of implanting in the uterus of a woman an embryo derived from an ovum fertilised outside her body.

103. See the argument by the author in ‘Artificially Conceived Children and Inheritance in New South Wales (1986) 60 Aust LJ 374 at 381.

104. The amending Act No 42/1994 will extend the period to 44 weeks once that Act is proclaimed to commence.

105. See above.

106. Parpalaix v Centre d'Etude et de Conservation du Sperm (CECOS); Hart v Shalala No 94–3944 (ED La Dec 12, 1993); Estate of D (1996) 5 Tas R 365. See discussion above.

107. Nolan, above n 8 at 22–23 (notes omitted).

108. Lorio, above n 2 at 41.

109. Garside, above n 77 at 730.

110. See for example Chester, above n 10 at 997–998; Garside, above n 77 at 726.

111. Chester, above n 10 at 995

112. See above.

113. See above.

114. Garside, above n 77 at 731.

115. Garside, above n 77 at 731–732.

116. Chester, above n 10.

117. Chester, above n 10 at 995–996 (notes omitted).

118. Report on Human Artificial Reproduction and Related Matters (1985). The recommendations are set out in Stephens, above n 8 at 274–275.

119. Nolan, above n 8 at 31.

120. Treating Deborah Hecht as a de facto widow.

121. See eg Magnusson, above n 37 at 55–61; Bailey, above n 5 at 761–764.

122. Compare eg the approaches of Nolan, above n 8 and Guzman, above n 10 at 236ff

123. See Chester, above n 10 at 996.

124. I am grateful to Dexter Hoyos. Associate Professor in Latin, University of Sydney, for overcoming the deficiencies in my education and giving me the Latin for the phrases: son of the dead man - son of the tomb.

125. ‘What of the other frozen embryos?, one asks. Recognising kinship and recognizing kinship for inheritance purposes involves drawing lines. It is possible, for example, to recognise kinship, such as under Family Provision legislation, but not to include such kin in direct systems of inheritance such as intestacy. While this paper focuses upon a broad problem and seeks to suggest another way of approaching the problem, there are many more questions to be considered and agonised over. This paper is offered as a beginning of further debates.