Posthumously conceived children and succession law: a view from Ireland

Since its emergence in the late 1970s, posthumous conception has provoked controversy. However, notwithstanding that a number of jurisdictions continue to apply a blanket ban on the posthumous use of genetic material, many (if not most) common law jurisdictions now expressly or implicitly permit such post-mortem conception. Yet as awareness of the potential for posthumous conception continues to increase, so too does awareness of the associated legal complications. In particular, serious questions arise as to whether the so-called ‘after born’ children ought to enjoy succession rights in their deceased parent’s estate. This article considers various arguments for and against the recognition of the succession rights of posthumously conceived children and reflects on the position adopted in a number of jurisdictions. With these international perspectives in mind, the article then places the spotlight on recent developments in Ireland, specifically the recent publication of the General Scheme of the Assisted Human Reproduction Bill 2017, which seeks to expressly permit and regulate posthumous assisted reproduction in the jurisdiction. The article considers the apparent intention of the Irish legislature to recognize the ‘inheritance’ rights of posthumously conceived children and, drawing on international experiences, questions how this intention might best be realized.