Parent, meaning who? Biotechnological revolution in human procreation and succession law in Poland
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/13582291241288234 |
| Author | Maciej Rzewuski |
| Date | 01 December 2024 |
Article
International Journal of
Discrimination and the Law
2024, Vol. 24(4) 240–269
© The Author(s) 2024
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DOI: 10.1177/13582291241288234
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Parent, meaning who?
Biotechnological revolution in
human procreation and
succession law in Poland
Maciej Rzewuski
Abstract
Recent developments in assisted reproductive technology (ART) –the use of third parties
in the process of fertilization and pregnancy, and cryopreservation of human sperm, ova
and human embryos –have contested many previously unchallenged paradigms related to
parenthood. Currently, the thesis that a person is created by the physical consummation
of two living parents of the opposite sex, is no longer as simple and clear cut. Un-
doubtedly, these changes affect social norms, including the legal systems of individual
states which take divergent stances on the above-mentioned issues. For example, in their
approach to filiation relations of a child born through ART and how his/her parents’data
are entered on the child’s birth certificate. Intensified migration movements of Poles to
the USA and an increased number of cross-border (Polish and American) relationships
have resulted in a growing frequency of foreign birth certificates appearing in Poland.
Though incompatible with the Polish law, such certificates provide grounds for certain
claims to be filed since vital records are documents of particular importance in every legal
order, and in succession proceedings they are of fundamental value. Thus, a question
arises as to the viewpoint of Polish law in regard to American birth certificates which do
not comply with the rules in force in Poland regarding the filiation indicated therein. Can a
child inherit by operation of law from people of the same sex indicated in his/her birth
certificate issued abroad and can he/she inherit from all the parents named in such a
certificate even if there are more than two of them? Does a child conceived several years
after the death of his/her father, whose data feature on the American birth certificate,
have a right to inherit from him in Poland? This article attempts to answer these questions.
Department od Civil Procedure, University of Warmia and Mazury in Olsztyn, Olsztyn, Poland
Corresponding author:
Maciej Rzewuski, Department od Civil Procedure, University of Warmia and Mazury in Olsztyn, ul. Popiełuszki
21d, Olsztyn 10-693, Poland.
Email: rzemac@interia.pl
Keywords
assisted reproductive technology, discrimination, inheritance, parenthood, postmortem
procreation
Introduction
In recent decades, the exponential development of biotechnology, including assisted
reproductive technology (ART),
1
contributed to a significant increase in the number of so-
called procreative options. Although the reproductive cloning
2
of human beings or
procreation through ectogenesis
3
still remain a matter of the future at least in the legal
domain, there is no doubt that since the second half of 20th century
4
we have witnessed a
biotechnological revolution.
5
This revolution has pushed the boundaries of human
procreation beyond its previously understood limits and definitions. The advancement of
methods such as cryopreservation of human gametes, artificial insemination, and in vitro
fertilization, combined with the emergence of the possibility of using third parties in the
process of fertilization (donation of genetic material) and duringpregnancy, has chal-
lenged the previous explicitness of many paradigms, including those related to
parenthood.
Nowadays, the idea that the conception of a human being comes from two people of the
opposite sex who engage in sexual relations, can no longer be unequivocally accepted.
6
Suffice it to say that with the advent of the method to modify the mtDNA of an egg cell in
an in vitro fertilization procedure, the statement that a human being has only two bio-
logical parents has come into question. In fact, it is still considered a marginal technique
unable to be a solution for same-sex parents to be biological parents.
7
The said
technique –to put it simply –consists of combining the healthy mtDNA of one female
reproductive cell with the healthy cell nucleus of a different egg cell (obtained from
another woman). This allows, among other things, the elimination of the problem as-
sociated with identified defects in the mitochondrial area. With this technique, in the first
phase the ovum is fertilized with a sperm and then the genetic material obtained in this
way is implanted in the second ovum. The resulting embryo has 0.1% of the genetic
material from the second egg cell, which means that –according to many –a child
conceived by this method has three parents in biological terms.
8
Following the advent of technology allowing for long-term deposition of sperm, ova,
and human embryos, the phenomenon of fertilization after the death of the gamete donor
(post mortem procreation) has emerged. This type of procreation is currently practiced in
medical facilities in many countries,
9
including Poland.
10
Regardless of the strictly biological aspect, the development of assisted reproductive
technology has contributed to the introduction of the as yet not fully understood im-
plications of surrogacy into social life, and the following so-called surrogate motherhood
agreements. Recourse to this form of procreation may involve a combination of methods,
but what they have in common is that the woman becomes pregnant and gives birth to the
child without any intention of raising said child or assuming parental responsibility for it
in the future. In an agreement concluded with other people (who are referred to in
Rzewuski 241
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