Appendix to Part II
Interpretive Resources
Aristaire1
I.
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
To make sense out of the authorities that follow, you’ll need to understand the meanings of several
technical terms of the civil law of successions. One is “de cujus.” This expression, which is short for de
cujus successione agitur (literally, “of whose succession it is a question”), refers to the deceased or, as a
common lawyer would put it, the “decedent.” Another is “the opening of the succession.” A succession
is “opened” at the very moment at which the de cujus dies. Thus, the “opening” of the succession does
not presuppose that–indeed, has nothing whatsoever to do with whether–court proceedings regarding the
disposition of the estate property have been commenced.
1
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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
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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
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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
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 (Dexian) Case Law
A (on behalf of C) v. B (Dexian 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.”
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.
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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)
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.
English Authorities
a.
English Legislation
ACT NO. 3 OF THE ENGLISH 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.
English Case Law
X (on behalf of Z) v. Y (Court of Appeal - Supreme Court of Judicature 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.
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On behalf of Z, X then sued Y.
Result: For Z, the child.
Rationale (in its entirety): “The child, under the circumstances, clearly ‘existed’ when his
father’s succession was opened.”
Blake v. Wordsworth (Court of Exchequer Chamber 1767)
Facts: Nine months after the death of her husband, the widow Blake gave birth to a
healthy, apparently full-term, son. When the administrator of her husband’s estate, Wordsworth,
rejected her demand that a share of the estate be awarded to her son, she sued Wordsworth on her
son’s behalf.
Result: For Blake (and her son).
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.” Acknowledging that one could not, under the circumstances, say with certainty
whether the widow Blake had conceived her son while the decedent was still alive, inasmuch as
the normal period of human gestation is precisely nine months, the court opined that “in case of
doubt, the uncertainty must be resolved in favor of the child’s interest and the mother’s honor.”
Tudor v. Windsor (House of Lords 1691)
Facts: Six months after the death of her husband, the widow Tudor gave birth to a
healthy, apparently full-term, son. When the administrator of her husband’s estate, Windsor,
rejected her demand that a share of the estate be awarded to her son, she sued Windsor on her
son’s behalf.
Result: For the widow Tudor (and her son).
Rationale: “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.”
b.
English Legal Scholarship
CORPUS JURIS ANGLICI §§ 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. 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 . . . .
2 Sir William Blackstone, COMMENTARIES ON THE COMMON LAW OF ENGLAND § 39, at 233
(1799) Capacity to succeed: posthumously born children. – During the earliest period, English
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 16th century, 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
decedent 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.
d.
Other English Authorities
BLACK’S ENGLISH LAW DICTIONARY 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.
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BLACK’S ENGLISH LAW DICTIONARY 190 (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.
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