12.1 The Commission has reached the conclusion that direct legislative regulation of the practice of AIH is not necessary and recommends accordingly. The AIH child is conceived from the reproductive tissues of the couple themselves and will be a true child of the marriage. In this respect AIH is clearly comparable to natural reproduction.

II. AIH USING DECEASED HUSBAND’S SEMEN

A. The Problem

12.2 It is possible for a widow to be made pregnant by AI with her deceased husband’s stored sperm. Such cases are likely to be rare. We are aware of only two, one occurring in England in 1977 and the other in France in 1984. The latter case received wide international publicity.¹ Despite the rarity which we have assumed in the incidence of such cases, they raise an unexpected problem under the Artificial Conception Act 1984 that calls for serious consideration of amendment of that Act. The problem is one of interpretation, and our conclusion is governed by our understanding that the Act was passed for the purpose of clarifying the status of AID children. The Act provides that where a woman becomes pregnant by means of AI:

. . . any man (not being in the case of a married woman, her husband) who produced semen used for the artificial insemination . . . shall for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy.²

12.3 If a widow is made pregnant by her late husband’s semen by AI and bears a child as a result, this provision may exclude the deceased husband from fatherhood and render the child fatherless. An interpretation that excluded a deceased husband from fatherhood would in our opinion regard the time of insemination as critical. Argument in favour of such an interpretation would emphasise the fact that the woman (widow) did not have a husband at that time and therefore could not he regarded as a “married woman” for the purposes of the subsection. The argument might also suggest that the deceased husband is therefore specifically excluded by the remaining words of the subsection from paternity of the child. On the other hand a court may accept a contrary argument, for example, that the subsection does not apply to such extraordinary circumstances and is intended only to apply to cases where all the parties to the information are alive at the time.

12.4 In our opinion, amendment of the Act is justifiable to enable biological paternity in a case of this kind to be accepted by the law and recorded in the register of births. It is plain that this is the wish of the parties. Accordingly we recommend that the law recognise the deceased husband as the father of a child born as a result of such a procedure, provided that the woman is his widow and unmarried at the time of insemination and birth, and further that the law allow the register of births to record the deceased husband’s paternity in such a case.

12.5 Our conclusion has been reached after considering the legal, temporal, logical and philosophical arguments that may be made to demonstrate that the word “father” is not appropriate for a man who does not exist at the time of conception. However, the sperm does exist and in commonsense not only is there a basis for recognising the deceased husband’s paternity but notation of his paternity on the birth register is desirable. There appears to be no other way of creating a credible record that does not contradict itself. We recommend that no other action be taken to enact legislation to regulate or prohibit directly AIH where a widow wishes to use that procedure to become pregnant by her late husband’s stored sperm.

B. The Inheritance Question

12.6 Posthumous or post mortem conception raises questions concerning the child’s rights, if any, to share in the father’s estate. The effect of the recommendation made in paragraph 12.4 will be that a child may be born who will in law be able to regard as his or her father a person who died before his or her birth. From a succession point of view this would mean that, unless the law provided otherwise, the child would be regarded as the deceased’s child under the scheme of distribution on intestacy in New South Wales if he were to die intestate; if he left a will, the child would be considered his child in a gift to “children”; and, in either case, the child could make an application for further provision under the Family Provision Act 1982 as his child.³

12.7 An obvious practical difficulty with giving full effect to our recommendation arises when the father’s estate is wholly or partly distributed at the date of conception or birth. Views differ as to what should happen in this case. The Ontario Report favours legislative intervention and the creation of an entitlement on the part of the posthumously-conceived child to inheritance of a share in the undistributed estate of the father “as if the child were conceived while the husband was alive”.⁴ On the other hand, the United Kingdom Report unequivocally rejected this proposition, recommending:

that any child born by AIH who was not in utero at the date of the death of its father shall be disregarded for the purposes of succession to and inheritance from the latter.⁵ The United Kingdom Report expressed the view that posthumous AIH of a widow, “should be actively discouraged”, and that it “could cause real problems of inheritance, and succession”.⁶

12.8 In our opinion, the law should not preclude the creation of a specific gift by a man (or any other person) by will in favour of his (or any other person’s) posthumously-conceived children. A man who wishes to provide for a posthumously-conceived child should be entitled to make direct testamentary provision to that effect. Complex legal problems such as those that could be posed by the rule against perpetuities should not arise because we are here considering only the unique case of post mortem pregnancy of the deceased’s widow.

12.9 Because of the practical difficulties in administration of estates referred to in paragraph 12.7 we propose that the posthumously conceived child should not be entitled to participate in the distribution on intestacy of his father’s estate. This will enable the administrator of a intestate’s estate to distribute without the need to make enquiry to negative the possibility of the subsequent birth of persons who, because of our recommendations in paragraph 12.4 will be regarded as the children of the deceased. Further comments on intestacy, and comments on testacy of the deceased father, now follow.

12.10 Should children born whilst the deceased’s widow remains unmarried be entitled to bring a claim under the Family Provision Act 1982? We have not found this an easy question to determine, and the opinions which are set out in the remainder of this paragraph, as well as the recommendations in paragraph 12.11 are those of a majority of the Commission. Two of the Commissioners hold different opinions and their views are set out in paragraph 12.12. There will be few cases where a child will be born posthumously while his or her mother remains a widow and where his or her father has not made adequate provision in his will. However, experience shows that even the most well-meaning testators can overlook particular needs or by failing to constantly update their will, may leave a will which is no longer appropriate to their family’s needs. To deny rights on intestacy, and on testacy (where no provision or inadequate provision is made) but leave no jurisdiction for claims to be made on an estate by a child could mean that a large estate might pass to a charity or a remote relative of the deceased leaving the posthumous child with nothing even where the estate was sufficient to provide adequately for his or her maintenance and advancement in life. We believe that the Court’s jurisdiction to entertain such claims should be preserved. An executor or administrator will be free to distribute according to the will or laws of intestacy as soon as the estate is in a position to be distributed. He or she will be protected thereafter from personal liability at the suit of the later-born posthumously-conceived child of the deceased, provided the requisite notice is given under section 35 of the Family Provision Act 1982. Thereafter, the claimant will need to assert the claim directly against those to whom the estate was distributed. While this will be inconvenient, it should be borne in mind that such a situation would only arise in the rarest of circumstances. The claimant will need to satisfy the court both that “sufficient cause” exists for bringing a claim more than 18 months after the deceased’s death ⁷ and that in the final analysis the court should exercise its discretion to make an order in his or her favour. The Court’s ultimate discretion to make an order requires it to take into consideration circumstances existing after the death of the deceased and any other matter which it considers relevant in the circumstances⁸ and this would, we believe, allow proper adjustment having regard to the position of beneficiaries who may have spent their inheritance before the posthumous claim was known.

12.11 We therefore recommend that legislation should be enacted to reflect our intentions. To some extent this legislation will be declaratory. The legislation should make it clear that as a consequence of the legislation enacted pursuant to the recommendations appearing in paragraph 12.4, a child conceived in the manner under discussion, namely by AIH after the death of his or her biological father, will have the right or power to make a claim under the Family Provision Act 1982. The legislation should also provide that, for the purposes of inheritance or succession to property whether on the testacy or intestacy of the father, the child is not to be regarded as the child of the father except to the extent that the father has made specific provision for the child in his will.

12.12 The Commissioner-in-charge of the reference, Mr Russell Scott and Justice Nygh do not agree with the recommendations in paragraph 12.11 for two reasons. The first is the uncertainty that will attend the distribution of estates because of the possibility of claims being made by children to be conceived in the future. The second is the complexity of the recommendations and the possibility that the public will be confused by them. They consider that a man who has arranged for the storage of his semen should be entitled to make direct testamentary provision for a posthumously-conceived child to share in his estate, and as well should be under the necessity of doing so if the child is to take such a share. Their view is that the interests of all members of the family of the child in question will be best served by certainty and simplicity in the law. Accordingly legislation should provide that a child conceived by AIH after the death of the biological father, should be regarded as a child of the latter for the purposes of the inheritance of property only to the extent that the biological father or any other person has made specific testamentary provision in the child’s favour.

III. AID USING DECEASED DONOR’S SEMEN

12.13 By way of a postscript we mention that there is no call for recommendations to be made in relation to the stored sperm of a deceased donor not married to the female AID recipient. In such a case the death of the donor would be irrelevant and subsection 6(1) of the Artificial Conception Act 1984 would specifically exclude the donor from paternity.

IV. SUMMARY OF RECOMMENDATIONS

(1) Direct legislative regulation of the practice of AIH is not necessary.

(2) The law should recognise the deceased husband as the father of a child born as a result of such a procedure, provided that the woman is his widow and unmarried at the time of insemination and birth.

(3) The law should allow the register of births to record the deceased husband’s paternity in such a case.

(4) No action should be taken to enact legislation to regulate directly or prohibit directly AIH where a widow wishes to use that procedure to become pregnant by her late husband’s stored sperm.

(5) Legislation should provide that, for the purposes of inheritance or succession to property whether on the testacy or intestacy of the father, the child is not to be regarded as the child of the father, except to the extent that the father has made specific provision for the child in his will. Otherwise, that child should have the right or power to make a claim under the Family Provision Act 1982.

1. “The Parpalaix Case and postmortem insemination” (1984) 58 Australian Law Journal 627; “A Dead Man Has the Right to Breathe Life into His Wife’s Womb and Prove Love is Stronger than Death” Sydney Morning Herald, 3 August 1984 at 7: “Rush Law on Donating Sperm after Death” Sydney Morning Herald, 4 August 1984 at 8.

2. Artificial Conception Act 1984 s6(1) [our emphasis].

3. R F Atherton, “Artificially Conceived Children and Inheritance in New South Wales” (unpublished paper, 1986).

4. Ontario Report at 182.

5. United Kingdom Report, para 10.9.

6. Ibid.

7. Family Provision Act 1982 s16.

8. Id, s9(3).