Post Mortem ART : New Breaches in the Prohibition
The Paris Court of Appeals has recognised the paternal filiation of two children born through post mortem ART conducted in Spain.
Two cases were referred to the court concerning couples who resorted to an ART procedure (Assisted Reproductive Technology) in Spain with preservation of the gametes of the partners and the embryos of the couples. In both cases, the women had been widowed, and resorted to the transfer of embryos after the death of their partners.
Although authorised in Spain under certain conditions, the practice is prohibited in France, which is why the court had initially refused to establish the paternal filiation of a deceased man whereby the child could become a legitimate heir. Indeed, in order to qualify for ART procreation, French law demands that both members of the couple must be living and is against the principle of giving birth to a child deliberately orphaned of a father.
In view of the complexity of the questions referred to the Court of Appeals, both cases were considered simultaneously. Its decisions were released on 14th October 2025.
First case : A request for filiation recognition
In the first case, the widow wished to obtain filiation recognition for her daughter with her husband who died at the end of 2018. However, the daughter was born on 31st July 2020 following an embryo transfer on 18th November 2019 (the embryo was conceived using the gametes of the deceased), the birth occurred 19 months after his death. No paternal filiation was mentioned on the birth certificate. Not being born, nor conceived during the marriage of the spouses, the presumption of paternity could not be established. Indeed, the decease of a partner in law constitutes the dissolution of the marriage. Paternity may only be recognised if the child is born during the period between 180 and 300 days following the decease of the partner or a divorce.
According to the judicial court, the application was rejected. As underlined by Jean-René Binet, a professor of law for people and families at the University of Rennes 1, “French law provides no legal foundation for recognising a filiation link if the conception occurs after death.”
The question referred to the Court of Appeals was to know “whether a child born through an ART procedure conducted after the death of the progenitor, and with the agreement of the latter, in a member state of the European Union which, contrary to France, accepts the practice, could obtain recognition in France, the nation where the mother gave birth, of a filiation link to the deceased.”
The Court considered that although the principle of the prohibition of post mortem ART was legitimate in France, the refusal to establish the filiation of the child with its deceased progenitor, caused disproportionate harm in the case considered, to the right for respect of the privacy of the child. The judges argued that the mother had not infringed French law insofar as she had complied with Spanish law by conducting ART within the twelve months following the decease of her partner whilst complying with the latter’s clear wishes. The paternal filiation of the child was therefore established with the deceased.
Second case: a question of inheritance
The second case was brought by the adult children from a previous union of the deceased husband who are opposed to the child borne by the second wife, and since widowed (resulting from a post mortem ART procedure), having any claim to the inheritance.
The couple had initiated the ART procedure in Spain in 2019 resulting in the birth of a daughter at the end of 2019. The father died the same year. The wife then initiated another ART procedure by embryo transfer on 9th November 2020 resulting in the birth of a child on 21st July 2020 in Spain. The Spanish birth certificate shows the names of the mother and the deceased father. The certificate was subsequently transcribed as seen in the registers at the French Consulate.
However, the children from the first marriage claimed, according to article 725 of the civil code which states that “In order to inherit, the child must exist at the instant when the succession is opened or, having already been conceived, must be born alive.” The Court of Appeals accepted the validity of the first ruling which concluded that the child could not claim to inherit since it had not been conceived at the opening of the succession and because post mortem ART is prohibited in France. However, it considered that the impossibility of inheritance constituted a disproportionate infringement of the right of the child to family life protected by article 8 of the Convention of Human Rights. Also it is a disproportionate breach of the child’s rights regarding the principle of the equal rights of children whose filiation has been legally established. The entitlement to inheritance was thus assigned to the child.
Undermining of the French framework
These legal decisions undermine the framework established by the 1994 law, and which had been maintained constantly ever since. Up till now, France had been supported in its refusal to export embryos and gametes for the purpose of post mortem ART procedures. Nevertheless a few weeks prior to this double decision by the Paris Court of Appeals, the European Court of Human Rights accepted to examine a claim by a French woman submitted following the refusal by the Court of Caen and the State Council to authorise the transfer of her embryos from an ART procedure, after the decease of her husband.
Ever increasing inconsistency
How can the prohibition of post mortem ART be maintained when other provisions adopted through the revisions of the Bioethics Law interfere with its framework? Indeed the authorisation of ART procedures for single women or couples of women through the 2021 Bioethics Law deliberately deprives the children of a father. Equally, how can one reconcile the possibility of donating supernumerary embryos to people outside the couple with the prohibition against transferring her own embryos for a woman whose husband is deceased?
The ethical challenges associated with the creation of embryos and their freeze preservation, raised by the 1994 Bioethics Law, remain and are increasing. As clearly explained by the CCNE (National Consultative Ethics Committee) in its advice 126 published in 2017, “The ART techniques (…) disconnect the different stages – origin, sexuality, procreation, gestation, birth and filiation – between procreation and filiation.”
From the moment when procreation is the product of the technique and no longer the fruit of relations between a man and a woman, the human embryo becomes manipulable, freezable and transferable at the will of adults. That is how the safeguards claimed to be erected by Bioethics collapse one after the other. All the more so since they vary from one State to another. That has been noted over the last thirty years with its set of injustices and assaults against human dignity.
Post mortem ART, yet another slide towards “a right to a child”
With post mortem ART, claims are accumulating, to the detriment of children’s rights and interests. Will it be possible one day to create life after death? That is the question asked in an article published by Actu juridique. The author explains that “The current multiple armed conflicts are again raising the question of post mortem ART due to the mortality of soldiers on the front. In February 2024, the Ukrainian public authorities authorised the preservation of gametes of military personnel for three years after the decease, whilst considering a legislative evolution to cover their use by widows. In Israel, gametes have been collected from dead soldiers at the request of parents in order to ensure their descendance. »
There is no longer any doubt that post mortem ART can eventually lead to abuse which will be difficult to contain.
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