Appendix to Part II

Appendix to Part II

Interpretive Resources

I. Aristaire[1]

A. Domestic (Aristarian) Authorities

1. Domestic (Aristarian) Legislation

Aristarian Civil Code [ACC] arts. 953 & 954 (1845)

Art. 953. Capacity to succeed; in general

In order to succeed, the successor must, of necessity, exist at the moment at which the succession opens. Thus, the following are incapable of succeeding:

1. One who has not yet been conceived;

2. One who, though born, is not viable;

3. One who is civilly dead.

Art. 954. Capacity to succeed; unborn children

A child in its mother's womb is deemed to have been born already when its interests are in question; it receives all the successions that have opened since its conception, provided that it is otherwise capable of succeeding when it is finally born.

Aristarian Penal Code art. 35 (1999)

Art. 35. Harm to fertilized human embryos

It shall be unlawful for any person to destroy, mutilate, or otherwise damage a human embryo that has been conceived in vitro but not yet implanted into the mother. Such a person shall be punished by imprisonment at hard labor for not less than one nor more than five years.

2. Domestic (Aristarian) Doctrine

Simone Primeaux, Treatise of Aristarian Successions Law no 51, at 45, & no 53, at 49 (1985)

51. Capacity to succeed: in general. – . . . Though the two articles of the ACC that concern capacity to succeed (953 and 954) are both of French extraction, they are not drawn from the same French source. Whereas ACC art. 953 is a verbatim copy of FCC art. 725, ACC art. 954, which has no counterpart in the FCC, is taken from early French doctrinal commentaries on the FCC.

. . .

53. – Assisted conception. – The recent advent of new “assisted conception” technologies (in vitro fertilization, artificial insemination, “surrogate motherhood,” just to name a few) gives rise to a number of puzzling “capacity” conundrums. Take, for example, the case of a child who not only is posthumously born, but also is posthumously implanted, that is, who, though only an in vitro embryo when his father dies, is thereafter surgically implanted into his mother’s womb. Does such a child “exist” or is it “conceived” as of the father’s death as those terms are used in CC arts. 953 and 954? It is difficult to say. Perhaps the answer should depend, at least in part, on (i) how much time elapsed between the father’s death and the child’s implantation and (ii) whether the father assented to the implantation. If any and every posthumously implanted child were entitled to succeed to his father, no matter how much time may have elapsed between his father’s death and the implantation, then the successions of men who die leaving embryos behind could never be settled with confidence: what’s to prevent the widow of such a man (or, for that matter some other woman!), years or even decades after his estate property has been distributed to his then-existing successors, from implanting one of his embryos in herself and, once the child is born, demanding that that property be recalled so that the child can receive his share? At the same time, however, it would be difficult to justify granting capacity to a child who had been implanted, with the father’s permission, just moments before the father’s death, on the one hand, and yet denying it to one who, though likewise implanted with the father’s permission, was not implanted until just moments after the father’s death, on the other. Such a distinction would smack of arbitrariness.

3. Domestic (Aristarian) Jurisprudence

A (on behalf of C) v. B (Aristarian Supreme Court 2000)

Facts: After several years of trying, without success, to have a child, A and B, wife and husband, respectively, resorted to a fertility clinic, which promptly produced several embryos in vitro from her eggs and his sperm. Before the embryos could be implanted, B deserted A. A, who nevertheless wanted to go ahead with the procedure, then demanded that B pay her “child support” for the soon to be implanted embryos (to defray the cost of continuing to “house” and “maintain” the embryos at the clinic). Though B did not object to A’s going ahead with the procedure, he refused to pay her just yet, arguing that “I shouldn’t have to pay you anything until the buns are in the oven.” A then sued B.

Result: For B, the alleged father.

Rationale: The mother’s claim for child support is premature. “Unless and until an in vitro embryo is implanted in the mother, the supposed ‘child’ does not exist and, therefore, is not a person. Non-persons have no right to demand alimentary support, nor may it be demanded on their behalf.”

4. Other Aristarian Authorities

Dictionary of the Aristarian Language 143 (5th ed. 2001)

Conception: (1) originally, the act or process whereby a woman becomes pregnant, which entails both fertilization (the union of sperm and egg in utero) and implantation (the attachment to the uterine wall of the embryo created from the union of sperm and egg); (2) in contemporary biology, the act or process of fertilization, whether in utero or in vitro, in distinction to the act or process of implantation.

B. Foreign Authorities

1. French Authorities

a. French Legislation

French Civil Code [FCC] art. 725 (1804)

In order to succeed, the successor must, of necessity, exist at the moment at which the succession opens. Thus, the following are incapable of succeeding:

1. One who has not yet been conceived;

2. One who, though born, is not viable;

3. One who is civilly dead.

Act No. 3 of the French Parliament of November 7, 2000

Any child conceived and implanted after the death of the de cujus, who specifically authorized in writing his surviving spouse to use his gametes in this way, shall be deemed the legitimate child of such de cujus, with full capacity to succeed from him, provided the child is born to the surviving spouse, using the gametes of the de cujus, within two years of the death of the de cujus.

b. French Doctrine

Alexandre Duranton, Cour de Droit Français no 70, at 88-89 (1834)

Because a conceived child is, in law, deemed to have been born already every time that his interests are at stake (Digest of Justinian bk. 1, tit. 5, law 7.), the law does not require, in order for a child to be able to succeed from his relatives, that he be already born in fact at the moment of the opening of the succession. It suffices that he be conceived and that he later be born viable. Though it may be true that, in the eyes of a certain sect of ancient philosophers and physiologists, a fetus is only a part of the body of the mother, in the eyes of legislators it is a living being, a person who will soon have need of property and who, as a consequence, has the capacity to receive them, at least in law.

2 C.-B.-M. Toullier, Droit Civil Français nos 91 & 92, at 56-57 (1820)

In order to succeed, one must exist at the opening of the succession. Thus, “he who has not yet been conceived” is incapable of succeeding. FCC art. 725. What that means is this: a child, in the womb of his mother, is deemed to have been born already when his interests are in question. He receives all the successions that have opened since his conception . . . . But if a conceived child is reputed to be born already, it is only in the hope of his birth. One cannot say that those who are born dead have ever been numbered among the living . . . .

c. French Jurisprudence

X (on behalf of Z) v. Y (Cour d’Appel – Aix en Provençe 1999)

Facts: Pursuant to their agreement, X, wife of T, reported to a medical clinic so that she could undergo a procedure whereby several embryos that had previously been produced from her eggs and his sperm would be implanted into her uterus. Unbeknownst to X, T, who had been out of town on business, had been killed, while en route home, just a few hours before she had arrived at the clinic. The procedure was a success, and nine months later X gave birth to a son, Z. X then demanded of Y, the administrator of T’s estate, that Z be given his share. Y refused. On behalf of Z, X then sued Y.

Result: For Z, the child.

Rationale (in its entirety): “Whereas the child, under the circumstances, clearly ‘existed’ when his father’s succession was opened (FCC art. 725) . . . .”

d. Other French Authorities

Vocabulaire Juridique 170 (1957)

Conception: procreation of a child resulting from the fertilization of an egg in the maternal uterus (normally caused by the sexual intercourse of a man and a woman, but capable of being provoked by artificial insemination). Synonyms: pregnancy.

Vocabulaire Juridique 170 (2d ed. 1985)

Conception: [i] procreation of a child resulting from the fertilization of an egg in the maternal uterus (normally caused by the sexual intercourse of a man and a woman, but capable of being provoked by artificial insemination) or [ii] even fertilization of an egg in vitro followed by implantation.

2. Roman Authorities

Digest of Justinian bk. 1, tit. 5, law 7 (opinion of Paulus)

A child in its mother’s womb is cared for just as if it were in existence, whenever its own advantage is concerned; although it cannot be of any benefit to anyone else before it is born.

4 Heinrich Faber, Pandectenrecht § 159, at 200 (2d ed. 1891)

Capacity to succeed: posthumously born children. – During the archaic period, Roman law restricted the “capacity to succeed” to those persons who had already been born as of the moment of the opening of the succession. Later, during the formative period, this capacity was extended to children who, though still not born when the succession opened, had at least been conceived, that is, were already in utero, at that moment.

The reason for this extension is not difficult to fathom. The very premise that underlies the whole of the law of intestate succession is that, in the absence of any contrary indication, the de cujus must be supposed to have wanted his property to fall to those who presumably were “closest” to him, namely, his relatives. Now, if a man should die when his wife is pregnant by him, that child, provided it should later be born alive, would be no less his “relative” than would a child to whom his wife had given birth just prior to his death. In one case as in the other, the child is his own flesh and blood.

II. Dexia

A. Domestic (Dexian) Authorities

1. Domestic (Dexian) Legislation

Dexian Criminal Statutes § 35 (1999)

Sec. 35. Harm to in vitro fertilized human embryos

2. Domestic (Dexian) Case Law

A (on behalf of C) v. B (Dexian Supreme Court 2000)

Result: For B, the alleged father.

Hogan v. Gibson (Dexian Supreme Court 1846)

Facts: When Mrs. Hogan was in the second trimester of her pregnancy, Gibson, through his negligence, injured both Mrs. Hogan and the fetus she was carrying. At its birth, Mrs. Hogan’s child, a son, exhibited severe physical abnormalities. Attributing these problems to Gibson’s misconduct, Mrs. Hogan filed suit against Gibson on her son’s behalf. In his defense, Gibson argued that, even if Mrs. Hogan’s factual allegations were correct, he owed her son nothing inasmuch, at the time of the alleged tort, her son was not yet a person.

Result: For Mrs. Hogan (and her son).

Rationale: “A child in its mother’s womb is cared for just as if it were in existence, whenever its own advantage is concerned; although it cannot be of any benefit to anyone else before it is born.”

Downs v. Underwood (Dexian Supreme Court 1844)

Facts: Ten ½ months after the death of her husband, the widow Downs gave birth to a daughter. The administrator of her husband’s estate, Underwood, rejected her demand that a share of the estate be awarded to her daughter, arguing that her daughter “is not the child of the decedent.” The widow Downs then sued Underwood on her daughter’s behalf.

Result: For Underwood.

Rationale: “In order to succeed, the successor must, of necessity, exist at the moment at which the succession opens. Thus, one who has not yet been conceived is incapable of succeeding.” Noting that the daughter was not born until 10 ½ months after the decedent’s death–a period more than a month longer than the normal period of human gestation–, the court reasoned that the daughter could not have been conceived while the decedent was still alive.

3. Domestic (Dexian) Legal Scholarship

Simon First, Treatise of Dexian Inheritance Law § 51, at 45, & § 53, at 49 (1985)

51. Ability to inherit: in general. – . . . Dexian law regarding who is entitled to inherit, exemplified in such cases as Downs v. Underwood (Dexian Supreme Court 1844) and Hogan v. Gibson (Dexian Supreme Court 1846), has in roots in English case law. . . .

. . .

53. – Assisted conception. – The recent advent of new “assisted conception” technologies (in vitro fertilization, artificial insemination, “surrogate motherhood,” just to name a few) gives rise to a number of puzzling “capacity” conundrums. Take, for example, the case of a child who not only is posthumously born, but also is posthumously implanted, that is, who, though only an in vitro embryo when his father dies, is thereafter surgically implanted into his mother’s womb. Does such a child “exist” or is it “conceived” as of the father’s death as those terms are used in Downs and Hogan? It is difficult to say. Perhaps the answer should depend, at least in part, on (i) how much time elapsed between the father’s death and the child’s implantation and (ii) whether the father assented to the implantation. If any and every posthumously implanted child were entitled to succeed to his father, no matter how much time may have elapsed between his father’s death and the implantation, then the successions of men who die leaving embryos behind could never be settled with confidence: what’s to prevent the widow of such a man (or, for that matter some other woman!), years or even decades after his estate property has been distributed to his then-existing successors, from implanting one of his embryos in herself and, once the child is born, demanding that that property be recalled so that the child can receive his share? At the same time, however, it would be difficult to justify granting capacity to a child who had been implanted, with the father’s permission, just moments before the father’s death, on the one hand, and yet denying it to one who, though likewise implanted with the father’s permission, was not implanted until just moments after the father’s death, on the other. Such a distinction would smack of arbitrariness.

4. Other Dexian Authorities

Dictionary of the Dexian Language 143 (5th ed. 2001)

B. Foreign Authorities

1. English Authorities

a. English Legislation

Act No. 3 of the English Parliament of November 7, 2000

b. English Case Law

X (on behalf of Z) v. Y (Court of Appeal - Supreme Court of Judicature 1999)