The Unbearable Lightness of Informed Consent in Post Mortem Fertilization

Abstract

The current increase in global infertility rate and the consequent access to medically assisted procreation have contributed to the fragmentation of the reproductive process. This is also due to the development of cryopreservation techniques for gametes and embryos, whose use is therefore progressively delayed over time, sometimes even after the death of one of the partners. However, few European countries permit post mortem fertilization. Following a reconstruction of the legislation of those EU Member States allowing the practice, this contribution focuses on the jurisprudential reaction in countries, such as France, Germany and Italy, where post mortem fertilization is prohibited by the legislature. In doing so, the role of informed consent is highlighted, especially where it was not expressed by the deceased, due to an unexpected and sudden fatal event, and the surviving partner wants a child from the deceased. Based on a comparison with the findings of US scholars, this article elaborates further on the advantages of the default option in gamete retrieval for procreative purposes, which is increasingly requested also by parents looking for genetic continuity. Perceived differently outside the Western legal tradition, the lack of offspring opens the doors to recognize the interest of pursuing by post mortem fertilization a family genetic heritage.