Inseminação artificial post mortem homóloga e suas dimensões/omissões no Direito Sucessório brasileiro.

Abstract

Given the growing technological advances in biotechnology and, thus, with direct repercussions on the child coming from the use of the homologous post-mortem artificial insemination technique, it became possible that a child could be conceived after the death of his / her parent. This assisted reproduction technique is called homologous post-mortem homologous artificial insemination. The big problem is that the legal system did not follow the evolutionary process of biomedicine. Currently in Brazil, there is no specific constitutional or infraconstitutional legislation regarding the issue of assisted reproduction. What we have is a reference to the techniques of assisted reproduction, exclusively, when establishing the presumption of affiliation provided for in article 1,597, of the Civil Code of 2002. Since the inheritance rights of the child coming from homologous postmortem artificial insemination have not really been effective. It is through a critical and reflexive analysis of existing doctrinal currents and based on existing legislation that it becomes possible to elucidate the subject further. It is preliminarily approached the constitutional principles and the right of affiliation with prominence, the force of the constitutional principles. It also addresses the right of filiation and presumption of paternity, as well as the treatment given regarding the equality of children before the current Civil Code. Therefore, it is believed that post-mortem artificial insemination should be authorized, with recognition of the right to paternity and succession, provided the prior consent of the deceased spouse is obtained and the conception takes place within a two-year prescriptive period, intended for conception of the offspring of a third party, benefiting from the probate succession, in accordance with article 1,800, § 4, of the Civil Code.