Posthumous conception by presumed consent. A pragmatic position for a rare but ethically challenging dilemma.

Abstract

The prevailing legal position and opinion of professional societies such as the European Society for Human Reproduction and Embryology and the American Society for Reproductive Medicine is that posthumous sperm conception should only occur in the presence of explicit written consent from the deceased man. However, in our opinion this is an impractical approach as the majority of deaths of reproductive-age men are sudden and unexpected, thereby precluding explicit consent. Previously in this journal we have outlined arguments supporting a move to a standard of presumed consent for posthumous conception, with provisions for men to ‘opt out’ and safeguards to protect the welfare of the prospective mother and her child. In a recent commentary in this journal, Kroon outlines arguments against our position of presumed consent as an unacceptable violation of the deceased’s autonomy. However, such arguments on the primacy of the rights of the dead are in our opinion not paramount, especially since this position blocks access to posthumous conception for the majority who support its use. The objective of this commentary is to provide a rebuttal to the concerns raised by Kroon and hopefully reorientate the discussion towards the rights and welfare of the living (widow, prospective child), not the dead.