Experts in the field of family and inheritance law doubt that the future offspring of the secular columnist Bozhena Rynska and her late husband, founder of the NTV television company Igor Malashenko, who committed suicide a few days ago in his Spanish estate, if he was born from a frozen embryo using IVF and surrogacy, can be recognized as the heir of his father, because it will be conceived after his death. However, the situation is not legally and emotionally as unambiguous as it may seem at first glance.
The widow of media tycoon, in her words, over the past few years has tried to give birth to their common child using reproductive techniques, but all attempts have so far ended in failure. Now, the desire to have a child from a deceased spouse has become for Bozhena Rynska just a fix idea. “The only thing that can keep me in this world is the birth of a child. We have common embryos that we have frozen in due time, and I am obliged to continue the struggle for our child,” wrote Rynska after the death of Malashenko.
However, as always in such cases, newsmongers were immediately found who suspected Rynska of mercenary intentions and thought that she hoped to give birth to her child from Malashenko, even posthumously, in order to claim a larger share of the inheritance. Although, lawyers are skeptical about these chances, since conception and childbirth, if it happens, will take place after the death of the father.
Article 1116 of the Civil Code of the Russian Federation reads: “Citizens who are alive at the time of the opening of the inheritance, as well as conceived during the life of the testator and born alive after the opening of the inheritance may be called upon to inherit. The Big Medical Dictionary interprets conception as “the occurrence of pregnancy”, including “fertilization of the egg and implantation of the ovum.” If the egg has been fertilized, but not implanted in a woman, the conception is not considered to have taken place. Russian legislation does not define the legal status of an embryo obtained as a result of IVF. In other words, the current Family and Civil Codes consider cases of natural way conception, without taking into account the rapid development of medical technique, including assisted reproductive technologies. According to the well-known Russian lawyer Mikhail Barshchevsky, the legislation should certainly change to reflect the rights of children born with IVF. But at the same time, he specifies that, taking into account the standards of the current Russian legislation, “if a child is conceived not during the life of the testator, he will not be considered the heir”.
Sergey Zhorin, the founder of Zhorin and Partners law company, is more optimistic about the inheritance rights of a probable child of Rynska and Malashenko. The lawyer is sure that even now, even without changes in legislation, a child conceived before the inheritance section can claim his share. Zhorin believes that conception is a “direct sharing of the embryo” to a woman, but additionally “an explanation of the plenum of the Supreme Court is required.” “If conception happens during half year after the death of the father, I would challenge the inheritance at the place of the future mother, file a lawsuit, freeze the action on assets, and later, after birth, declare the rights to the inheritance,” advises lawyer.
In Russia, there is practically no law enforcement practice associated with post-mortem IVF. In Europe, such things are more common. So the case promises to be very interesting and instructive.
Photo: Eugene Guseva
Based on the Russian media