The Embryo’s Capacity to Inherit

Only those who are alive at the time of the opening of a succession, i.e. at the time of the testator’s death, have the capacity to inherit. A child conceived at the opening of the succession also has the capacity to inherit if it is born alive (nasciturus). There is a continuing debate in legal science as to whether, in the case of assisted reproduction techniques (MAP), an embryo should also be considered as such a nasciturus prior to its transfer into the mother’s body. This article demonstrates that there are no normative reasons in Polish law to differentiate the legal situation of a child depending on whether the death of the person from whom it can inherit occurred before or after the implantation of the embryo into the mother’s body. The legislature has not chosen to modify the principle that it is the moment of conception of the child, and not any other, that determines the beginning of the capacity to inherit. The practical diffi culties that may arise for the succession proceedings from the fact that the embryo may remain outside the mother’s body for a very long time are not of such a nature as to override the need for the child’s interest. However, a statutory regulation of this issue should be advocated.