Doc Emer has an entry about a doctor who acquiesced with the wife’s request to retrieve sperm from her dying husband after his death. While Doc Emer, being a physician, dissects the issue based on bioethics, I, on the other hand, see the legal difficulties.
This is not about a woman simply wanting to have a child, per se, but wanting to have a child with a particular man who was already dying and who, in fact, subsequently died.
Will Philippine laws allow such a procedure? Will the dead husband be the child’s father, legally speaking? Will the child be legitimate?
There are at least two pertinent provisions from the Family Code of the Philippines.
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child…
Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.
Based on Art. 169, if the child is born within 300 days after the husband’s death, there seems to be no problem. But what if insemination takes place at a later time and the child is born, say, two or three years later? There must be proof, according to the same article. That proof could very well be the written authorization of the husband for sperm extraction after his death, supplemented by a sworn statement of the doctor who performed the insemination affirming that the sperm used was the dead husband’s.
What about inheritance? Is the child an automatic intestate* heir of the deceased father, entitled to his share in the decedent’s half** of the community property? Or did the wife automatically inherit all of that? Is the child an heir of his mother but not of his father?
If we follow the argument that, based on articles 164 and 169 of the Family Code, paternity and legitimacy can be established in the case of a child born out of post-mortem sperm retrieval, then it follows that the child is an intestate heir of his father. But that’s a long shot, really. To inherit, the law talks about a surviving heir. A child who has not been conceived during the death of the father is not, strictly speaking, a surviving heir.
On the other hand, can the father draw a will designating as his heir any child that may be born as a result of artificial insemination with his sperm retreived after his death? Or, let’s say that the sperm has been retrieved while he was still alive. If insemination takes place after his death, is the provision in his will for the child yet to be conceived valid?
That such a child in an intestate heir of his father is already a long shot. To consider such a testamentary provision as valid is really stretching the law too far. Personally, I don’t think it is possible.
*Intestate means the decedent died without a will.
**When a married person dies, the community property (the totality of the properties acquired by husband and wife during the marriage) is dissolved. Half goes to the surviving spouse as his/her share; half is divided among the heirs, normally, the surviving spouse and the children.