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Abstract

This essay considers posthumous conception from an international and child-centered approach. After a sketch in Part I of the phenomenon of posthumous conception and the complexities it evokes, Part II examines the types of issues arising in court cases concerning posthumous conception. Part III considers how courts in their rulings have addressed the welfare and best interests of posthumously conceived children and analyzes the scope and meaning of relevant decisions. Part IV looks into children’s rights or interests raised in those judicial decisions: parental acknowledgement, family structures, identity harm, and inheritance and social benefits. This part draws on the Convention on the Rights of the Child (CRC), a prime instrument to advance children’s rights on the international level, incorporating as much as possible the perspectives of children. I argue that the discourse must include concern for the rights and interests of posthumously conceived children and that a new special category of children who are “outcast” cannot stand the test of equality and non-discrimination, nor of the entrenched principles of child welfare and best interests. Moreover, I suggest that attending to children’s perspectives may illuminate the gaps in the current discourse and what needs to be addressed. Finally, Part V draws some conclusions and calls for a more relational approach to ensure that posthumously conceived children do not pay the price of their parents’ decisions and that their welfare and best interests are upheld.

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