Implementation of Inheritance Rights in the Context of the Use of Reproductive Technologies
https://doi.org/10.17803/1729-5920.2025.220.3.131-141
Abstract
The paper analyzes the importance of reproductive technologies as to inheritance law, examines the conditions for the exercise of the rights of heirs by law or will to reproductive material after the death of the person who provided it, as well as issues related to the establishment of the fact of the child’s descent from specific persons. The author notes that these problems are more regulated in common law countries, the judicial practice of which has gradually developed the doctrine-supported concept of the possibility of disposing of biomaterials in case of death and posthumous conception of a child as the basis for establishing its origin and recognizing its inheritance rights. The issues raised are widely discussed in modern doctrine, but the current legislation does not contain any relevant instructions, and the conservative approach to their solution still dominates in Russian judicial practice. Based on the study of the most significant opinions of foreign courts, the author makes a conclusion about the expediency of creatively borrowing the most successful of them in the further development of Russian inheritance law and the need to transfer to the legal field solutions to complex ethical problems associated with the birth of posthumous offspring. In order to expand the testamentary capacity of Russian citizens and taking into account the possibilities of modern assisted reproductive technologies, it is proposed to allow the transfer of the reproductive biological material of the deceased person to the surviving spouse or parents, to consolidate the right of citizens to dispose of such material in a will and to provide for the possibility of including living children born within 3 years after the death of the testator among the heirs.
About the Author
I. A. MikhailovaRussian Federation
Irina A. Mikhailova, Dr. Sci. (Law), Professor, Department of Civil and Business Law, Russian State Academy of Intellectual Property
Moscow
References
1. Belova DA. Legal framework for reproductive biological material. Lex russica. 2021;74(7):111-121. (In Russ.).
2. Dobrynina S. For the first time in Russia, a boy was born whose father died before conceiving a son. Available at: https://rg.ru/2006/01/27/rebenok.html [Accessed: 07.12.2024]. (In Russ.).
3. Gapanovich AV. On the issue of inheritance of virtual property in social networks. Nasledstvennoe pravo [Inheritance Law]. 2020;2:40-43. (In Russ.).
4. Glandin SV. On the status of the human embryo in the light of the right to respect for private and family life in European and Russian law. Available at: http://www.igzakon.ru/magazine340 [Accessed: 07.12.2024]. (In Russ.).
5. Kasatkina AYu. The implementation of the hereditary rights of the child in the Russian Federation. The author’s abstract of Cand. Diss. (Law). Moscow; 2005. (In Russ.).
6. Kirillova EA. The main problems of inheritance of digital assets. Nasledstvennoe pravo [Inheritance Law]. 2020;2:37-39. (In Russ.).
7. Mikhailova IA, Romanova IN. Problems of inheritance of digital assets and possible directions of their solution. Notarius. 2022;2:3-8. (In Russ.).
8. Mikhailova IA. On the issue of subjects of hereditary succession. Zakony Rossii: opyt, analiz, praktika [Russian Laws: Experience, Analysis, Practice]. 2018;10:17-23. (In Russ.).
9. Pestrikova AA. Inheritance rights and the legal status of the embryo. Nasledstvennoe pravo [Inheritance Law]. 2009;4:20-22. (In Russ.).
10. Radigan CR, Schoenhaar DR. Statutory Inheritance Rights of a Posthumously Conceived Child. New York Law Journal. 2015;1. Available at: http://www.newyorklawjournal.com/printerfriendly/id=1202714574785 [Accessed: 07.12.2024].
11. Shapo HS. Matters of Life and Death: Inheritance Consequences of Reproductive Technologies. Hofstra Law Review. 1997;25(4):1091-1223.
12. Vorontsova SN. On the inheritance rights of surrogate children. Byulleten notarialnoy praktiki. 2009;1:2-4. (In Russ.).
13. Zhirikova KA. Protection of the hereditary rights of a child born as a result of the use of assisted reproductive technologies. Nasledstvennoe pravo [Inheritance Law]. 2021;1:39-41. (In Russ.).
14. Zhuravleva EM. The status of the nasciturus in the civil law of the Russian Federation. The author’s abstract of Cand. Diss. (Law). Moscow; 2014. (In Russ.). Pp. 8–10.
Review
For citations:
Mikhailova I.A. Implementation of Inheritance Rights in the Context of the Use of Reproductive Technologies. Lex Russica. 2025;78(3):131-141. (In Russ.) https://doi.org/10.17803/1729-5920.2025.220.3.131-141