POST-MORTEM HOMOLOGOUS ARTIFICIAL INSEMINATION AND THE HOMOLOGATION OF INHERITANCE RIGHTS IN THE BRAZILIAN LEGAL SYSTEM.

Abstract

Post-mortem Assisted Human Reproduction (AHR) emerges as a bio-legal phenomenon that strains the traditional structures of Brazilian Civil Law. This article aims to analyze the limits and possibilities of the inheritance rights of children conceived after the death of a parent through homologous techniques. The central issue lies in the normative antinomy between article 1,597, item III, of the Civil Code, which presumes posthumous paternity, and article 1,798 of the same code, which restricts succession legitimacy to individuals already born or conceived at the time of the opening of the succession. Given the absence of federal legislation, regulation has been supplemented by resolutions from the Federal Council of Medicine (CFM) and case-by-case interpretations by the Judiciary. The understanding consolidated by the Superior Court of Justice (STJ) in REsp 1,918,421/SP is highlighted, which establishes the imperativeness of an express, clear, and formalized manifestation of will in life by the donor for the parental project to generate succession effects. The study concludes that there is an urgent need for specific regulation, such as Bill No. 115/2015, aimed at ensuring legal certainty and protecting the constitutional principle of absolute equality among children.