After-born Children: Succession Law

and Posthumous Conception

November 2015 | Wendi P. Crowe, Tyson A. Wagner

To inherit, an individual must be alive at the death of his or her benefactor, or

in utero and later born alive. This was historically quite an inclusive rule;
however, reproductive technologies now make it possible for a child to be
conceived and born after the death of one or both genetic parents. Various
legal issues arise in respect of the rights of a posthumously conceived (“after-
born”) child. In particular: How does the child establish its parentage?
What rights does the child have to inherit from a genetic parent? Is such a
child entitled (and if so, to what extent) to claim family maintenance or
support from the deceased parent?

Although the proposition that after-born children should be legally

recognized as the children of their deceased parents is broadly supported, no
consensus has emerged concerning the rights of such children to inherit or to
claim support from their deceased parents.

The Alberta Law Reform Institute (“ALRI”), in its Final Report of March 2015
(the “ALRI Report”)[1] has advanced several recommendations in this regard,
calling for changes in some areas of Alberta law, and resisting pressure for
change in others. Notably, the ALRI Report advises against some changes
that have already been adopted in other jurisdictions to recognize an after-
born child’s right to inherit from a deceased parent.

Parentage

The Uniform Child Status Act (2010)[2] provides that a posthumously

conceived child, or a person who was “married to or in a common-law
partnership with” the person who is alleged to be a parent of that child, may
apply to court for an order declaring that a deceased person is the child’s
parent. However, the court may only grant the order if it is satisfied that the
deceased’s “human reproductive material” was used, and that the deceased
consented in writing (and did not withdraw such consent) to be the parent of
a child conceived posthumously. Although not binding on any particular
province, this uniform act serves as a suggestion for the harmonization of
laws between provinces and can be expected to inform discussion and
drafting throughout Canada.

British Columbia has incorporated the same principles into its Family Law
Act[3] (the “BCFLA”), which provides that if a deceased person gave and did
not withdraw written consent for the use of his or her reproductive material
to a spouse or partner in a marriage-like relationship, and also consented to
be the parent of a child conceived after his or her death, then that deceased
person and his or her spouse or partner are the parents of any posthumously-
conceived child. Similar provisions have been adopted in several U.S. states,
as well as in the U.K. and Australia.[4]

Alberta’s current Family Law Act[5] (“AFLA”) “is structured to identify a

child’s parents as those persons with a genetic link to the child and those
persons who consented to be the child’s parents”.[6] ALRI asserts that “there
is no principled reason to deny the after-born child the right to legal
parentage in respect of the deceased parent”[7] and that any attempt to do so
could possibly constitute unacceptable discrimination contrary to the
Canadian Charter of Rights and Freedoms. In this respect, ALRI’s
recommendations are harmonious with both the Uniform Child Status Act
(2010) and the BCFLA.

However, ALRI questions whether it is necessary to require consent both to

the use of one’s reproductive material after death, and (separately) consent to
be a parent. In Canada, assisted reproduction is governed by the federal
Assisted Human Reproduction Act[8] (the “AHRA”), which only allows a
surviving spouse or partner to use his or her partner’s human reproductive
material posthumously with the consent of that donor partner. Therefore, the
donor must already have explicitly consented to be a parent to a resulting
child. ALRI concludes that the donor’s right to revoke that consent during his
or her lifetime constitutes an acceptable safeguard against unwanted
parentage, making the ULCC and BC provisions requiring further specific
consent redundant.

If ALRI’s recommendations for amendments to the AFLA are adopted, a

further distinction between the AFLA and the BCFLA will emerge. Whereas
the BCFLA deems a consenting donor to be the parent of his or her
posthumously conceived child, the AFLA would permit interested parties to
apply for a court declaration of parentage. The legal costs and additional time
required to obtain such a declaration may result in hardship for some
individuals to establish parentage in Alberta.

Succession and Dependants’ Rights

It has been argued that after-born children should not be permitted to claim
an inheritance from or through their deceased parents. Waiting to see if
potential beneficiaries will come into existence would cause delays in
administering estates and may prejudice the interests of other beneficiaries.
The administration of benefits, such as governmental death benefits or
insurance payments, would suffer from increased complexity for the same
reasons. Conversely, it has also been argued that to deny after-born children
such rights is unfairly prejudicial. It has long been an established principle
that children born after a parent’s death (though conceived earlier) are
considered to be children of that parent for all purposes; it would be
discriminatory to deny the same rights to children conceived later.

Legislative amendments in several US states address the succession rights of

after-born children. The California Probate Code, for example, provides that
an after-born child is deemed to have been born within its deceased parent’s
lifetime (and after the execution of any testamentary instruments) if and only
if:
a) such parent has clearly consented to be legally considered the child’s
parent,

b) the person administering the estate of the deceased parent is promptly

notified that another beneficiary may soon come into existence, and

c) the child is in fact conceived within two years.[9]

Fixing a time-limit, beyond which after-born children have no inheritance

rights, is intended to limit the prejudicial effect to other beneficiaries and
avoid the complexity of having to wait to see if after-born children come into
existence.

Iowa and other states have enacted a similar provision in respect of intestate
succession.[10] Conversely, section 742.17(4) of the 2015 Florida
Statutes[11] explicitly states that after-born children have no claim on the
estate of their deceased parents unless otherwise specified in a will.

The Manitoba Law Reform Commission (the “MLRC”) has recommended

that, where there is no will, after-born children should inherit from their
genetic parents, and through them from other blood relatives, subject to
conditions similar to those imposed in California.[12] After-born children of
an intestate must be conceived within two years of the grant of
administration of the estate; the administrator (and persons whose interest in
the estate may be affected) must receive notice within six months of the grant
of administration that reproductive material is available for posthumous
conception; a biological link between the after-born child and the deceased
intestate parent must be proven; and the intestate must have consented in
writing to the use of his or her reproductive material for the purpose of
posthumous conception, as well as the creation of inheritance rights for any
after-born children. The MLRC further recommended that Manitoba’s
dependants’ relief legislation be amended along the same lines, granting
after-born children the same support rights as children born or in utero
during the lifetime of the deceased.
Notably, the Manitoba legislature has not implemented the MLRC’s
recommendations. However, the British Columbia Wills, Estates and
Succession Act[13] (the “WESA”) incorporates similar provisions. Pursuant
to section 8 thereof, an after-born child (called a “descendant”) inherits as if
born in the lifetime of and surviving its deceased genetic parent, provided
that:

a) the spouse or partner of the deceased gives written notice to the personal
representatives, beneficiaries and intestate successors of the deceased, within
180 days from the issue of a grant of representation, that such spouse or
partner may use the deceased’s reproductive material to conceive a child,

b) such descendant must be born within 2 years of the death of the deceased
parent, and

c) the deceased person is in fact the “parent” of the descendant pursuant to

the BCFLA.

The WESA provisions are broadly similar to those recommended by the

MLRC and enacted in California and other US states. One key distinction:
the after-born child has no right to inherit from the relatives of its deceased
parent until the actual birth of such after-born child; the estates of
grandparents or other relatives may therefore be disposed of entirely before
the after-born child becomes entitled to any claim thereto.

An after-born child in BC appears not to have the right to claim maintenance

and support from a deceased parent. WESA allows the “children” of the
deceased (rather than “descendants”) to bring a claim for maintenance. The
ALRI Report calls this a deliberate policy decision on the part of the BC
legislature.[14] Courts have yet to consider the distinction, but it is
reasonable to infer that where two different terms are used, they are intended
to refer to two different groups.

Given the lack of consensus on these issues, it may not be surprising that the
ALRI Report recommends that Alberta not follow the BC approach to
inheritance. The Report concludes that amending the AFLA to recognize an
after-born child’s parentage would have little effect on the law otherwise, and
states that “[w]hile the law may appear to operate harshly in denying
inheritance or benefits to after-born children, changing the law would be
detrimental to the rights of persons who are living when the parent dies.
Where a person wants to provide financially for an after-born child, the law
allows this to be done by a carefully drafted will”.[15] Of course, this is not a
complete answer because the provisions of such a will are subject to the
claims of legally recognized dependants. Nonetheless, the Report rejects
placing a time limit on an after-born child’s inheritance claim as this “still
limits the rights of living persons and subjects them to potential claims of
those who have no legal existence”.[16]

The ALRI Report concludes that, as currently formulated, Alberta’s

dependants’ relief and intestate succession laws do not give after-born
children any enforceable rights until such children are born alive, and that
there is “no sound policy reason” to amend the statutes to provide otherwise.
[17] Similarly, the Insurance Act, Fatal Accidents Act, Workers’
Compensation Act and the federal Canada Pension Plan Act would not, in
ALRI’s opinion, operate to give after-born children any right to make claims
until and unless born alive.

Conclusion

Considerable disparities remain in the approaches taken by different

jurisdictions to the rights of after-born children. The differences may become
more pronounced as the law evolves. If the Alberta legislature accepts ALRI’s
recommendations, rights of after-born children in Alberta and British
Columbia will differ significantly. Other provinces will have a plethora of
options, but arguably ought to address the matter in some fashion to reflect
the current state of reproductive technology – Ontario’s Law Reform
Commission last addressed these issues in 1985.
Given that the law will vary depending on location, it will be advisable to
consult with a lawyer in your province if you might posthumously conceive a
child, if you are an after-born child, or if your inheritance may be affected by
the claim of an after-born child.

[1] Alberta Law Reform Institute, Assisted Reproduction After Death:

Parentage & Implications, Final Report 106, March 2015, ISBN: 978-1-
896078-625, online: http://www.alri.ualberta.ca/docs/FR106.pdf

[2] Online: http://ulcc.ca/en/home-en-gb-1/86-josetta-1-en-gb/uniform-

actsa/child-status-act/1371-child-status-act-2010.

[3] S.B.C. 2011, c. 25, s. 28.

[4] See, inter alia, Texas Family Code, Title 5, Chapter 160 Sec. 160.707;
Human Fertilisation and Embryology Act 2008 (UK) c 22; Status of
Children Act 1974 (Vic).

[6] Supra note 1, para. 26.

[9]Online: http://www.leginfo.ca.gov/cgi-bin/displaycode?
section=prob&group=00001-01000&file=248-249.8.

[10]Iowa Probate Code, section 633.220A; online:

https://www.legis.iowa.gov/docs/code/2015/633.220A.pdf

[11]2015 Florida Statutes, Title XLII, Chapter 742; online:

http://www.leg.state.fl.us/Statutes/index.cfm?
App_mode=Display_Index&Title_Request=XLIII#TitleXLIII

[12] “Posthumously Conceived Children: Intestate Succession and

Dependants Relief”, Report #118, November 2008, online:
http://www.manitobalawreform.ca/pubs/pdf/118-full_report.pdf

[14] Supra note 1, at para. 69.