Illegitimacy and survivorship: the case against high technology births

• Author: Grady Miller
• Position: Former Visiting Professor, University of Kent, Canterbury
• Pages: 630-645

ILLEGITIMACY AND SURVIVORSHIP:

THE CASE AGAINST HIGH TECHNOLOGY BIRTHS

GRADY MILLER*

Survivorship and Descent

The events which gave

rise

to

this paper occurred in the United States.

They will be repeated countless times in both Europe and the developed

parts of Asia. Whether in anticipation of a fatal event or the possible

expectation of coital incapacity, sperm sells of

a

husband were artificially

collected and

frozen.

It then transpired that he met an untimely death. Some

years after

his

demise,

his surviving widow claimed the stored and specially

frozen sperm cells, and had herself inseminated. The resultant pregnancy

and successful birth of the child created at least two new legal dilemmas and

questions: was the child legitimate or illegitimate, and was the child an heir

and survivor of the deceased father?

The legal questions are indeed more complex than simply a disturbing

legal classification which are reminiscent of an older and more duplicitous

social era: one where children were stigmatised by the behaviour of their

parents, and this taint obviously reached the legal relationship of parent and

child. Kinship and descent are not settled legal and biological principles

even

now.

There are major differences in the ascertainment of kinship in all

the world's major religions as well as the legal systems which underpin

those religions.1 For instance, older ecclesiastical law put both first cousins

and nephews in the same degree of kinship by comparing the distance from

the common ancestor in disposing of descendent estates. Nephews and first

cousins fell in the second degree by generations counted from their dead

Former Visiting Professor, University of Kent, Canterbury.

1 The Book of Leviticus and the Moslem Qur'an lists prohibited sexual

relationships of those thought to be related by blood or by marriage. The

modern Hindu law further defines the kinship of children who have common

mothers from those which have common fathers. The ones with common

mothers are referred to as uterine blood. Those with common fathers are

Sapindas.

ancestor2.

For

inheritance purposes they were equally related

to the

descendant, but they were not necessarily related

to

each other, representing

the agnatic decent through

a

male

and

possibly

a

cognate descent through

a female, and they were forbidden to intermarry. Older English

law and

late

modern Roman law put

first

cousins in the fourth degree

and

nephews

in the

third

degree.3

Hence, first cousins

by

statute

in

English

Law are

allowed

to

intermarry.4 The correct assessment

is

made

by

counting

up to the

common

ancestor

and

then down

to the

generation

of

the

person concerned.

The possibilities of

new

technological achievement further complicate

the settlement of kinship issues. Until recently,

the

creation

of

a

live human

birth required

the

involvement

of

two

human beings, each bringing their

own biological speciality

to the

relationship. This

is no

longer true

or

required. There

is no

need that

the

parties

be

living

at the

time

of the

procedures necessary to achieve pregnancy. All the duties

can be

transferred

to either intermediate and/or surrogate parents who may

be

both social

and

biological strangers. Whilst this appears

to

confuse kinship

in a

novel

way,

there

are a

number of reasons

why

this

may not be so.

In Europe,

the

idea of universal succession

to

property

by

blood ties

only dates from

the 6th

century.5 Under older Roman

Law,

only agnates

were related

for

many purposes

and

only agnates whose parents were

Roman citizens could claim descendent property

by

succession. This older

law prevented husbands from succeeding wives, though

not

vice versa,

and

children from succeeding their mothers. Mothers were,

for the

purposes

of

succession, children

of

the husband. Thus neither actual blood ties

nor an

improper, though lawful marriage, could

in

early law provide

the

basis

for

civil law kinship.

Mothers, prior

to the

system

of

the Novels, were always surrogate

parents

for the

children whom they bore.6 Furthermore,

it is

likely that

unless some

of

the

privileges

and

immunities

of

Roman citizenship were

acquired,

all the

children would

be

illegitimate

for

Roman civil

law

2 Nicholas,

B.,

Introduction

to

Roman Law, Clarendon Press, Oxford,

1961,

Chap.

5, Law of

Succession, pp.235-270.

3

Ibid., op. cit.,

supra.,

n.2.

4

32 Han 8, c.38, 8.2

(1540) recites

the

Levitical prohibitions

but a

later

Act

in

the

20th

century partially repealed

at

least

one

category.

5 Nicholas, supra,

n.2.

6

Ibid.,

supra,

n.2.