SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY

POSTHUMOUSLY CONCEIVED CHILD AND SUCCESSION

RIGHTS

FAMILY LAW- 2

Submitted by

HIM MODI

Division – ‘C’; PRN: 19010324018 Class of BBA LLB - Semester – 4

SYMBIOSIS LAW SCHOOL, HYDERABAD

In

FEBRUARY 2021

Under the guidance of

Mr. HAMZA KHAN

Symbiosis Law School, Hyderabad
 INTRODUCTION

Children who were born after the death of their birth father is not a very new scenario. Disaster,
accident and disease can be reasons of death after the act of conception and before the birth of
a child. If the child is born within a normal gestation period then that child would be considered
a legitimate child and this fact is recognised by the common law, but if the child is born after
the death of one of his parents then the child is called Posthumous child. With the advances in
medical science now it is possible that the child could be born even after the death of one parent
or both with the help of artificial reproductive technology (ART). 1

The debates around the topic of the posthumously conceived child due to certain factors has
led to new ethical and legal clashes which revolve around the allowance of the process. Issues
like that of identity and filiation may arise even affecting the rights of a posthumous child in
terms of capacity to inherit estate of the deceased parent or being left with a single parent if
regulation is not present.

Child’s right of succession, legal rights, citizenship, and inheritance rights are all affected if
the child is a posthumous child because posthumous birth in the law has special implications.
To decide the legal status and the inheritance rights of a posthumous child every legal system
has special provisions for the same.2 Like according to Massachusetts law, it states that a
posthumous child will be given the same rights of that any other child because it considers the
posthumous child living at the death of the parent

If one of a parent dies without making any kind of testament and the surety for his unborn child
then that posthumous child will be treated as an heir who could inherit the property of the
deceased parent. Every country has different set of rules for dealing the rights of a posthumous
child-like under some statutes it is necessary then that the child should be born within a ten-
month period.3 With the changing time even the laws related to posthumous child are changing
or being replaced as the medical field is advancing therefore, they try to prolong the period of
reproduction, like, sperm and eggs of the donors could be kept in a frozen state even after their
death.

1
Torts: Death by Wrongful Act: Right of a Posthumous Child to Sue. (1903).
2
CAVALLAR, O., & KIRSHNER, J. (2020). Testamentary and Intestate Succession. In Jurists and Jurisprudence in
Medieval Italy: Texts and Contexts (pp. 773-799)
3
Elliott, M. (2004). TALES OF PARENTHOOD FROM THE CRYPT: THE PREDICAMENT OF THE
POSTHUMOUSLY CONCEIVED CHILD. Real Property, Probate and Trust Journal, 39(1), 47-69.
The final research paper will elaborate about the rights of succession of posthumous child under
various religions in our country like Hindu and Muslim etc. Then we will discuss about these
rights of succession being followed by different countries and will try to compare it with India,
then we will discuss the social impact created by these laws of succession in the lives of
posthumous child. With the advances in the medical field now the goal of some scholars and
scientists is that even after the death of the biological parent a child could be born with the
preserved genetic material.4 All these developments affect the benefits, inheritance rights and
requires changes in different sphere of the law thus creating and complicating legal affairs. The
final draft of the research paper would be consisting of the finding and their logical analysis
with some suggestions.

RESEARCH METHODOLOGY

The methodology that will be employed in this research is the doctrinal form of research. Also
known as armchair research, it involves gathering data from secondary sources, including but
not up to books, articles, etc. Since the successive rights of the posthumous child as a social
phenomenon has not been very old in our country, laws on the same under Hindu and Muslim
and other religion can be better understood under this form of research because it completely
analyses the data comprising of assorted articles, news articles, report of assorted
establishments, etc. books on the topic to bring forth useful & acceptable information.
Therefore, the doctrinal methodology of research will be particularly appropriate.

RESEARCH QUESTIONS

1. What are the different sections dealing the succession rights being provided to a
posthumous child under different religions in India?
2. What are the rights of a posthumous child related to succession in other countries and how
does it differ from India?
3. What are the social and mental impact on the Posthumous child and on its family related to
the succession rights?
4. What are the conclusion and suggestions that can be made based on the comparative
analysis of the posthumous child and their succession rights?

4
Torts: Death by Wrongful Act: Right of a Posthumous Child to Sue. (1903).
 RESEARCH OBJECTIVES

1. To study the succession rights bestowed upon the posthumous child under various religions
present in India.
2. To examine the succession rights of a posthumous child in different countries and spot the
difference with that of the rights being provided in India to a posthumous child.
3. To analyse the impact of succession rights on the posthumous child and on its family.
4. To summarize findings and make appropriate conclusion.

LITERATURE REVIEW

EXCERPT - “Although in most societies’ procreation holds a central place in one’s

community and one’s own social fabric, no other medical development has raised as many
opposing voices as assisted reproductive technologies, The phenomenon of posthumous
conception is no different; on the contrary, it both revisits and extends controversies about the
scope of reproductive freedom, the family, and medical technologies, The reason for the
growing interest in posthumous conception is the sensational nature of the issue”.5
RELEVANCE- This article is relevant for the paper because it talks about the changing nature
for procreation and with all the advancement in the medical industry the changes of conceiving
the posthumous child becomes more, thus becomes a more important duty for us to bring laws
more necessary and update for the successive right of posthumous child.

EXCERPT – “Intestacy also presents many obstacles to inheritance for the posthumously
conceived child, the majority of people die intestate, Thus, inheritance rights are dependent on
the deceased being recognised as the legal parent of the posthumously conceived child, this
sometimes makes very difficult for a child to get proved as a descendent of the intestate and
inherit his property so, more beneficial act should be introduced for posthumous child
betterment”.6

5
KINDREGAN, C., & McBRIEN, M. (2005). Posthumous Reproduction. Family Law Quarterly, 39(3), 579-597.
6
Bleich, J. (2016). POSTHUMOUS PATERNITY. Tradition: A Journal of Orthodox Jewish Thought, 49(1), 72-93.
RELEVANCE- This article is relevant because this article talks about intestacy becomes a
very big problem for the posthumous child, because if their intestate dies before leaving a will
for them and his conditions for dividing his property, it becomes very important for the child
to fight for its rights. Also, different country deals with the succession rights of posthumous
child differently so most of the times it gets very difficult for the child to inherit his property.

EXCERPT – “Posthumously conceived children place the utmost importance on the

relationships around them, both real and abstract; the adults helping to resolve their dilemmas
should take a more relational approach to their welfare and best interests, This is also the only
way that all children, including posthumously conceived children, will have a fair and equal
chance in life, Overall, in addition to practical and procedural issues, there are four essential
factors that should be addressed in a statute regarding posthumously conceived children: (1)
genetic material, (2) consent, (3) a time limit, and (4) who has control over the genetic
material”.7
RELEVANCE- This article is relevant because it talks about the importance of the
posthumous child and the role played by them in the life of their respective adults. Further this
article talks 4 factors which have become very necessary to update with respect to the
posthumously conceived children.

EXCERPT – “The three factors identified by the Woodward court provide particularly useful
guidelines for a statute regarding posthumously conceived children, However, there are also
other considerations that need to be taken into account for a potential statute, such as procedural
issues, for example, should the probate court be notified that the surviving partner is attempting
to have a posthumous child”.8
RELEVANCE- This article is relevant because it talks about the factors given by the
Woodward court which was kind of landmark for setting up of statues for the posthumous
conceived children. But at the same time as we have discussed at same type of rules and laws
does not work everywhere for this topic so new sets of rules have been developed by the courts
of every country.

7
Shepardson, C. (2017). Posthumous Orthodoxy. In Chin C. & Schroeder C. (Eds.), Melania: Early Christianity through
the Life of One Family (pp. 186-202).
8
Torts: Death by Wrongful Act: Right of a Posthumous Child to Sue. (1903).
EXCERPT – “The reasons for the national differences in judicial requests may be grounded
in the disparate legal regulations of assisted reproductive technologies in these countries, as
well as in their very different cultural understandings of procreation. In the United States,
where assisted reproductive technologies are lightly regulated, decisions about harvesting
gametes are often in the hands of medical ethics committees, similarly, in Japan, there is no
regulatory framework of law or guidelines concerning assisted reproductive technologies, and
the actual procedure is in private hands, Judicial resolutions are therefore called for only when
the child exists”.9
RELEVANCE- This article is relevant because it talks about the different type of judicial
norms and procedures followed by different country like United States of America has their
own set of rules when it comes to cases of Posthumous child while Japan has its own sets of
rules so there is no uniformity between any country when it comes to the succession of
Posthumous child and now it has become the need for an hour for all the countries in the world
to bring more advanced and suitable laws for the posthumously children.

CHAPTERIZATION

1. SUCCESSION RIGHTS OF THE POSTHUMOUS CHILD UNDER DIFFERENT

RELIGIONS IN INDIA

The first chapter on the final research paper will focus on the rights of succession for
Posthumous child under different religions of our country and will focus on different concepts
and sections on how these rights has been given to those children. This chapter further will be
divided into 3 parts

1.1 HINDU LAW

Under the section 20 of the HSA the posthumous child has been recognized as heir in the
intestate succession. It means the child who was in the womb at the time of death of intestate
and then successively born alive shall have the same right to inherit to intestate as if he or
she had been born before the death of intestate.10

9
Elliott, M. (2004). TALES OF PARENTHOOD FROM THE CRYPT: THE PREDICAMENT OF THE
POSTHUMOUSLY CONCEIVED CHILD. Real Property, Probate and Trust Journal, 39(1), 47-69
10
Shepardson, C. (2017). Posthumous Orthodoxy. In Chin C. & Schroeder C. (Eds.), Melania: Early Christianity
through the Life of One Family (pp. 186-202).
 1.2 MUSLIM LAW

Under the Mohammedan law, the Posthumous child gets the same rights of inheritance as
any other child of same sex. It was also held under the case of Sk. Fakir Mohammed v. Sk.
Jan Mohammed11 where the Posthumous child has given equal right in the intestate’s
property. In the case of Non-testamentary succession, the Muslim Personal Law (Shariat)
Application Act, 1937 gets applicable.

1.3 CHRISTIAN LAW

The people who are descended from the common ancestor but not in direct line are qualified
as “collateral consanguinity” and it is written under the section 26 of the Indian succession
act with respect to Christians. Also, no distinction is made so “a posthumous child is
treated as a child who was present when the intestate died, so long as the child has
been born alive and was in the womb when the intestate died”.

2. SUCCESSION RIGHTS OF THE POSTHUMOUS CHILD UNDER DIFFERENT

COUNTRIES

These chapter is further divided into 3 sub chapters which will explain about the succession
rights of the posthumous child in 3 different countries like their different procedures and set of
rules which is followed by them.

2.1 UNITED STATES OF AMERICA

To determine whether a posthumous child has the right to inherit from his or her
predeceased parent, majority states in United States America applies the Uniform
Parentage Act (UPA). In 2002 the law was drafted by the National Conference of
commissioners on Union State Laws. The states which do not comply to the UPA have
their own rules and laws that also serves a similar function to that of UPA in making such
determinations.

11
(2008) 4 CHN 324
 2.2 UNITED KINGDOM

In the United Kingdom, the children born after (but conceived before) the death of a parent
are usually treated as a child of the deceased for the purposes of their succession and
inheritance. It was added in the Fertilisation and Embryology Act of 199012, However, the
position where a child is not conceived until after the date of death of the intestate is not
certain which creates a huge impact on the lives of such posthumous child.

2.3 IRELAND

In the case of posthumous conception, the Irish succession law does not currently deal
with the case of a child born more than 10 months after the death of its father. The social
and legal status of such a child born after 10 months of his or her father’s death is therefore
very uncertain at this time but if the child born before 10 months of the father’s death than
No matter how small or big the estate, a child will always enjoy a share.13

3. CONCLUSION AND SUGGESTIONS

Based on the comparative analysis and the study on the succession rights of Posthumous
child it was concluded that under every country there are different rights and rules with
respect to succession and they are not adequate with respect to current scenario so,
according to present scenario where chances of conceiving the Posthumous child increases
therefore, advance and suitable laws should be introduced by all countries for the
betterment and upliftment of such children.

12
Bleich, J. (2016). POSTHUMOUS PATERNITY. Tradition: A Journal of Orthodox Jewish Thought, 49(1), 72-93.
13
Christ, M. (2005). TALES OF MODERN PARENTHOOD: THE POSTHUMOUSLY CONCEIVED CHILD. Real
Property, Probate and Trust Journal, 45(1), 55-8