Posthumous Conception Research Articles

Posthumous conception in Australia - legal and ethical considerations.

Posthumous conception, the ability to conceive a child after the death of one partner, is increasingly prevalent due to advances in Artificial Reproduction Technology (ART). This paper considers the complexities surrounding the practice in Australia, focusing primarily on the ethical and legal dimensions. It observes that state-based regulations in Australia create disparities in accessibility: some states prohibit the procedure without the deceased's written consent, while others permit it based on guidelines or lack explicit prohibitions. Addressing the juxtaposition of Will Theory and Interest Theory, it emphasises the ongoing debate on whether rights, particularly reproductive autonomy, outlive a person's demise. Finally, the paper highlights an evident inconsistency in Australian legislation and promotes a uniform approach across states.

Incapacitous patients, assisted reproductive technology, and the importance of informed consent

Abstract The principle of self-determination has gained significant judicial support over the last three decades, and the choice to procreate using assisted reproductive technology is a clear example of our right to choose a treatment that enhances our personal lives. The Human Fertilisation and Embryology Act 1990 (as amended in 2008) stipulates that each party must give written, informed consent to ensure that our reproductive materials are used within strict parameters. However, the growing number of posthumous conception cases in several jurisdictions has raised concerns, particularly in situations where gametes are extracted from incapacitous patients without their consent, leading to posthumous parenthood. The landmark case of Y v A Healthcare NHS Trust [2018] EWCOP 18 caused significant concern when it authorised the retrieval, storage and use of sperm from a suspected brain stem dead man for procreative purposes under the Mental Capacity Act 2005. It has never been known to be in the ‘best interests’ of a patient who lacks capacity to procreate in English law, and the consequences of this decision could be highly significant, raising questions about the exploitation of incapacitous patients and the misuse of genetic material. The decision has since been confirmed as the correct approach by the Court of Protection in Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, and a public consultation has now been opened by the Human Fertilisation and Embryology Authority. This paper examines the rigorous consent regime of the 1990 Act and the ethical complexities of retrieving gametes from incapacitous patients for procreative purposes. It will be determined that the 1990 Act's preference for a rigorous consent regime for public policy reasons is appropriate, and any alternative forms of consent could open a slippery slope to the unethical use of vulnerable individuals for their reproductive materials.

Blurring the Lines Between Life and Death — Ethical and Psychological Considerations in Posthumous Conception

ART practitioners routinely offer embryo and oocyte/sperm cryopreservation services to patients and couples who are interested in future family building. Unfortunately, some patients, whether due to disease or accident, die after cryopreserving their genetic material. In the event of a patient’s death, their partner or other family members may desire to use those materials to achieve pregnancy. However, posthumous reproduction (reproductive attempts after the death of a partner) has resulted in a number of ethical issues regarding pre-death consent from the deceased patient and ambiguous legal and social status for the resulting child(ren). Multiple psychological issues also arise during the course of posthumous reproduction. This includes decision making in the context of grieving the death of a loved one, family disagreements about posthumous reproduction, and coping with potential pregnancy-related adverse events. Further, it is unknown what if any psychological burden posthumously conceived children or their family members will bear as the child grows. From an ethical standpoint, it is often unclear as to who should have rights to these gametes or embryos as pre-death consent forms have often not been completed. Because of the psychological and ethical concerns regarding posthumous reproduction many practitioners have concerns about facilitating such treatment. This presentation will address the psychological and ethical issues in posthumous reproduction and will provide direction to providers for how to address these issues with surviving loved ones.

Implications of Posthumous Care — The Experience of the Surviving Partner

Background: Posthumous assisted conception remains controversial, and in providing this form of care, it is critical that fertility clinics consider the potential effects on the welfare of the person to be born, as well as any existing children already within the family unit. The NHMRC provides clear clinical guidelines for the collection, storage and use of gametes or embryos posthumously, however care providers rarely have an opportunity to gain a genuine understanding of the experience for a bereaved spouse undertaking this form of treatment. Aim: To explore the social and psychological implications of undertaking posthumous care, for the surviving partner of the deceased person, their broader family and the child. Method: Brief examination of the social and psychological implications of posthumous care. Personal case presentation by a surviving partner who has completed treatment using posthumous care. Conclusion: The personal experience of undertaking posthumous care will be examined, as provided within the relevant NHMRC clinical guidelines.

Inseminação artificial homóloga póstuma: análise bioética do planejamento familiar

Abstract This article discusses issues related to post mortem homologous artificial insemination. Taking as reference ethical norms that ensure the couple's free choice in family planning, the objective was to understand how such regulations would influence the accomplishment of this parental project. Using the hypothetical-deductive method, a literature review on bioethics and biolaw was carried out, in addition to a documentary research on the website of the Federal Council of Medicine. Then, reflections on the principle of autonomy of patients undergoing assisted reproduction techniques were made, considering some of the repercussions of this technique on family and succession law. Finally, a description of the method of clinical casuistry is presented, being used by clinics as a parameter to make decisions and advise the surviving spouse about the problem of posthumous conception.

Legal issues in posthumous conception using gametes removed from a comatose male: The case of Ex Parte SN

In only the second case dealing with posthumous conception in South Africa – Ex Parte SN – a woman approached the High Court seeking an urgent order allowing her to have sperm removed from the body of her comatose husband, so that she could use it for reproductive purposes after his death. This raised two separate legal issues: ( i ) whether gamete removal may occur where the person from whom the gametes are being removed is unable to consent; and ( ii ) whether gametes removed in this way could be used for posthumous conception. The court held that the woman was allowed to have the gametes removed, but did not engage with whether she could use them for posthumous reproduction. The court did not provide reasons, as this case was determined on an urgent basis. This article provides a background to this case, and analyses the main arguments surrounding each of these legal issues. It concludes that the law allows that a person who has the authority to give consent to health services on the comatose patient’s behalf may also give consent to gamete removal. However, whether these gametes may then be used for posthumous conception should be determined by a court, by balancing the various rights and legal interests at play. Three criteria that should guide a court’s determination in cases of posthumous conception are provided.

Posthumously Conceived Children and Succession Law: A View from Ireland

Abstract Since its emergence in the late 1970s, posthumous conception has provoked controversy. However, notwithstanding that a number of jurisdictions continue to apply a blanket ban on the posthumous use of genetic material, many (if not most) common law jurisdictions now expressly or implicitly permit such post-mortem conception. Yet as awareness of the potential for posthumous conception continues to increase, so too does awareness of the associated legal complications. In particular, serious questions arise as to whether the so-called ‘after born’ children ought to enjoy succession rights in their deceased parent’s estate. This article considers various arguments for and against the recognition of the succession rights of posthumously conceived children and reflects on the position adopted in a number of jurisdictions. With these international perspectives in mind, the article then places the spotlight on recent developments in Ireland, specifically the recent publication of the General Scheme of the Assisted Human Reproduction Bill 2017, which seeks to expressly permit and regulate posthumous assisted reproduction in the jurisdiction. The article considers the apparent intention of the Irish legislature to recognize the ‘inheritance’ rights of posthumously conceived children and, drawing on international experiences, questions how this intention might best be realized.

Posthumous conception: Recent legal developments in South Africa.

Posthumous conception - when a deceased person's gametes are used for procreative purposes - made its debut in South African (SA) courts in NC v Aevitas Fertility Clinic. A widow was granted the right to use her deceased husband's sperm for procreation. Against the background of legislative ambiguity, this case creates legal certainty that posthumous conception is legally permissible in SA - at least where deceased persons provided written consent that their gametes can be used by their surviving spouses or life partners after their death, and where there is no controversy about such consent.

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

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.

Presuming consent in the ethics of posthumous sperm procurement and conception

This paper compares standard conceptions of consent with the conception of consent defended by Kelton Tremellen and Julian Savulescu in their attempt to re-orient the ethical debate around posthumous sperm procurement and conception, as published in Reproductive BioMedicine Online in 2015. According to their radical proposal, the surviving partner's wishes are, in effect, the only condition that needs to be considered for there to be a legitimate moral case for these procedures: the default should be presumed consent to the procedures, whether or not the agent did consent or would have consented. The present paper argues that Tremellen and Savulescu's case for this position is flawed, but offers a reconstruction that articulates what may well be a hidden, and perhaps reasonable, assumption behind the argument. But while the new argument appears more promising, the reconstruction also suggests that the position of presumed consent is currently unlikely to be acceptable as policy.

Review of Major Parents and Children Law-Related Precedents Rendered in 2015

이 글에서의 논의를 요약ㆍ정리하면 다음과 같다. 코피노의 친자관계는 외국적 요소가 있는 사건으로서 국제사법을 적용하여 준 거법을 결정해야 함에도 서울가정법원 2015. 6. 5. 선고 2014드단311253 판결은 이를 간과하고 국내사건으로 취급하는 오류를 범하였다. 서울가정법원 2015. 7. 21. 선고 2014드단310144 판결은 친생추정이 미치는 범 위에 관하여 혈연설을 취함으로써 원고의 친생자관계부존재확인청구를 인용하였 다. 그러나 이 판결에서 망인과 피고 간에 혈연관계는 없지만 사회적 친자관계는 일응 존재하였으므로, 사회적 친자관계설에 따라 피고는 친생추정이 미치는 혼인 중의 출생자로 보는 것이 타당하다. 헌법재판소 2015. 4. 30. 선고 2013헌마623 결정은 민법 제844조 제2항 중 “혼인관계 종료의 날로부터 300일 내에 출생한 자” 부분에 대하여 헌법불합치결정을 선고하였다. 그러나 청구인의 기본권 침해는 민법 제844조에 의해서가 아니라 가족관계등록법 제47조에 의해서 발생하므로 법정의견은 타당하지 않다. 입법론으로서는 사회적 친자관계설에 따르되 ‘가정법원의 확인’에 의하여 子에 대한 친생 추정을 배제할 수 있는 간소한 절차를 마련할 필요가 있다. 서울가정법원 2015. 7. 3. 선고 2015드단21748 판결은 사후포태자의 인지청구를 긍정한 최초의 판결이라는 점에서 큰 의의가 있으나, 인지청구를 긍정하기 위해 서는 亡父의 생전동의가 필요하다고 보아야 하므로 이 판결이 단지 亡父와 사후 포태자 간에 혈연관계가 인정된다는 것만으로 인지청구를 긍정한 것은 타당하다 고 볼 수 없다. 다만, 이 사건에서는 생전에 亡父가 사후포태자의 父가 될 의사를 명확히 표명하였으므로 이 판결이 인지청구를 긍정한 것은 결과적으로 타당하다. 대법원 2015. 2. 12. 선고 2014므4871 판결은 제864조, 제865조 제2항의 제소기 간의 기산점으로서 ‘사망을 안 날’이란 사망이라는 객관적 사실을 아는 것을 의미 하고, 사망자와 친생자관계에 있다는 사실까지 알아야 하는 것은 아니라고 판단 하였다. 그러나 ‘사망을 안 날’이란 사망이라는 객관적 사실을 아는 것만으로는 부족하고, 사망자와 친생자관계에 있다는 사실까지 알아야 한다고 보는 것이 오히려 타당하다.The year 2015 saw many parents and children law-related precedents rendered, which may be summarized as follows. ① A ruling on the paternity of a Kopino: the related issues were dealt with as a domestic case. ② A ruling on the range of paternity presumption: the blood relationship was explicitly applied to the range. ③ A ruling of the Constitutional Court on the stipulation ‘the one born within 300 days after the completion of a marital relationship’ in Clause 2 of Article 844 of the Civil Code: the Constitutional Court ruled the stipulation a constitutional discordance. ④ A ruling on the son born through posthumous conception: a claim for affiliation was applied to the ruling. ⑤ A ruling on the calculation of the litigation period based on Article 864 and Clause 2 of Article 865 of the Civil Code (the day of coming to know the death): the death should be restricted to an objective fact, and there is no need to know the filiation of the dead. This article reviews the major parents and children law-related precedents rendered in 2015, as selected by this author s subjective judgment. The article concludes by assessing decisions ④ as reasonable, but not ①, ②, ③ or ⑤.

Presuming consent in the ethics of posthumous sperm procurement and conception.

This paper compares standard conceptions of consent with the conception of consent defended by Kelton Tremellen and Julian Savulescu in their attempt to re-orient the ethical debate around posthumous sperm procurement and conception, as published in Reproductive BioMedicine Online in 2015. According to their radical proposal, the surviving partner’s wishes are, in effect, the only condition that needs to be considered for there to be a legitimate moral case for these procedures: the default should be presumed consent to the procedures, whether or not the agent did consent or would have consented. The present paper argues that Tremellen and Savulescu’s case for this position is flawed, but offers a reconstruction that articulates what may well be a hidden, and perhaps reasonable, assumption behind the argument. But while the new argument appears more promising, the reconstruction also suggests that the position of presumed consent is currently unlikely to be acceptable as policy.

A discussion supporting presumed consent for posthumous sperm procurement and conception

Conception of a child using cryopreserved sperm from a deceased man is generally considered ethically sound provided explicit consent for its use has been made, thereby protecting the man's autonomy. When death is sudden (trauma, unexpected illness), explicit consent is not possible, thereby preventing posthumous sperm procurement (PSP) and conception according to current European Society of Human Reproduction and Embryology and the American Society for Reproductive Medicine guidelines. Here, we argue that autonomy of a deceased person should not be considered the paramount ethical concern, but rather consideration of the welfare of the living (widow and prospective child) should be the primary focus. Posthumous conception can bring significant advantages to the widow and her resulting child, with most men supporting such practice. We suggest that a deceased man can benefit from posthumous conception (continuation of his ‘bloodline’, allowing his widow's wishes for a child to be satisfied), and has a moral duty to allow his widow access to his sperm, if she so wishes, unless he clearly indicated that he did not want children when alive. We outline the arguments favouring presumed consent over implied or proxy consent, plus practical considerations for recording men's wishes to opt-out of posthumous conception.

Attitudes Toward Making Babies … With a Deceased Partner's Cryopreserved Gametes

A multiple segment factorial vignette was used with a probability sample of 857 U.S. households to assess the effects of contextual variables on attitudes toward posthumous reproduction using the cryopreserved gametes of a deceased partner. Attitudes were affected in predictable directions by marital status, gender of the deceased individual, disposition of the deceased's parents, and the deceased's wishes. In addition, respondents who identified more closely with their chosen religion tended to perceive posthumous conception as less appropriate and those who had never had children attributed a greater degree of obligation to assist on the part of medical professionals.

Case 21-2010

A 36-year-old woman had severe anoxic brain damage due to a pulmonary embolus during a long airplane flight. She was admitted to the neurology intensive care unit but remained in a coma despite maximal medical therapy. On the ninth day, the family decided to institute comfort measures only. Later, they requested that maximal therapy be resumed, to permit consideration of oocyte retrieval for the purpose of posthumous conception of future offspring. A management decision was made.

Deaths of HIV-Positive Men in the Context of Assisted Reproduction: Five Case Studies from a Single Center

Provision of reproductive services to individuals infected with HIV-1 is gaining popular acceptance and is generally endorsed by specialists in reproductive medicine. In the situation in which the male is HIV positive and the female partner is not infected, a large body of evidence has demonstrated that the use of assisted reproductive technology is effective for achieving pregnancy, while eliminating the risk of viral transmission to the mother and fetus. No reports have documented the well-being of the HIV-infected partners subsequent to seeking fertility services. In the current report, we document the cases of five HIV-positive men who died secondary to complications of HIV infection shortly after participating in the assisted reproduction program for HIV-1-serodiscordant couples at Columbia University. Three of these couples successfully achieved pregnancy and live birth, including one set of triplets, and one case of posthumous conception; the fourth case resulted in the cryopreservation of all embryos after the sudden death of the male before the time of embryo transfer; the fifth couple failed to conceive. None of the deaths, which occurred within a few months to 2 years from initial consultation, were related to infertility treatment. The demographic and social statuses of these patients were not different from the general population of men seeking assisted reproduction in our clinic. Regarding the HIV infection status of these cases, three patients had a longer duration of infection compared to the general population of men in our cohort, and one had a significantly lower CD4 cell count. All five men had stable HIV viral loads, and were determined by their primary care providers to be clinically healthy at the time of entry into the program for assisted reproduction. The untimely deaths of these patients underscores the importance of the thoughtful consideration of the complex issues involved in family planning for these individuals, including advanced directives for the use of cryopreserved gametes and embryos, and the social, emotional, and practical issues for the children and surviving partners subsequent to the death of the HIV-positive parent.

Understanding the motivations, concerns, and desires of human immunodeficiency virus 1–serodiscordant couples wishing to have children through assisted reproduction

Objective To survey the attitudes of human immunodeficiency virus (HIV)–serodiscordant couples interested in assisted reproduction and better characterize their motivations for reproducing. Methods A prospectively designed questionnaire and open-ended interview of 50 consecutive HIV-serodiscordant couples interested in undergoing assisted reproduction to avoid transmission of virus were studied. Demographic characteristics and attitudes regarding beginning a family were obtained. By design, males were HIV seropositive (age, 38.0 ± 5.4 years, range 26–51 years) and healthy. Women were HIV seronegative (age, 34.5 ± 5.1 years, range 24–45 years). Most couples were married (44 of 50) and in long-term relationships (duration of relationship, 8.9 ± 4.9 years, range 1–20 years). Results Before presentation, nine of 50 couples had conceived and delivered a child (three of nine instances with knowledge of paternal HIV status). Previous timed intercourse occurred in 8% of couples (four of 50). Six individuals stated they would proceed with timed intercourse if no other alternatives existed. Forty-eight percent said they would prefer artificial insemination with donor sperm in lieu, if assisted reproduction failed or were unavailable. Forty-three percent of respondents would pursue “posthumous conception” if cryopreserved sperm or embryos were available in the event of the partner’s death. Most couples discussed the possibility of single parenting (45 of 50; 90%) or the possibility for adoptive parenting (29 of 50; 58%). Couples were aware of risk, and 92% (46 of 50) understood that their child might contract HIV. Conclusion Human immunodeficiency virus–serodiscordant couples are actively seeking reproductive assistance and often consider or practice unsafe measures to achieve pregnancy. Reproductive issues and concerns unique to these couples need to be addressed before treatment.

Making ‘bad’ deaths ‘good’: the kinship consequences of posthumous conception

Recent developments in assisted reproduction mean that a child may now be born long after its father’s demise. Acts of posthumous conception raise a host of complex ethical and social issues. The article draws attention to these by means of an analysis of the medical, legal, and political commentaries generated by the case of Diane Blood in her dispute with the Human Fertilisation and Embryology Authority, which had prevented her from using her deceased husband’s sperm to become pregnant. Analysis of this and similar cases reveals that the desire for offspring following the death of a husband or partner has significant consequences for notions of marriage, paternity, memoriam, and inheritance .The article identifies as an underlying theme in acts of posthumous conception an attempt to ameliorate the grief of a widow, a family, and the wider society by making ‘bad’ deaths to some extent ‘good’. To achieve this transformation the meaning of sperm within reproductive transactions is subject to radical reinterpretations which simultaneously commodotize and sacralize human gametes.

Controversy over posthumous conception of children

Controversy over posthumous conception of children

POSTMORTEM SPERM PROCUREMENT: A LEGAL PERSPECTIVE

Purpose Postmortem sperm procurement with subsequent artificial insemination has become a technically feasible method for posthumous conception. A variety of legal questions exist involving the rights and relationships of the deceased, his family and his issue. We addressed these questions and designed a workable protocol for postmortem sperm procurement. Materials and Methods MEDLINE, WESTLAW and LEXIS medical literature, and case law searches were conducted. United States and international case law, United States (federal and state) statutes, Uniform Law Commissions Acts, and law review commentaries and articles were reviewed. Results While postmortem sperm procurement is being requested throughout the United States, no standard protocol or procedural guidelines have been established by federal or state statute. Furthermore, the courts have not yet addressed this specific scenario in reported case law. Statutes and case law do address related factual scenarios and issues, including property rights in human bodies, rules governing transplantation of human organs/body parts, rights of parties in in vivo sperm bank donations and responsibilities of parents to the conceptus of artificial insemination. Conclusions A workable protocol can be established by analyzing case law and statutes addressing factually similar scenarios. Urologists must focus on the express intent of the decedent and limit any postmortem sperm retrieval to the specific requests made by the decedent. Decedent requests should be documented in writing. The decedent must be competent and of majority age. In the absence of decedent expressed affirmative directive calling for sperm retrieval, no other relative or guardian may authorize this retrieval. Issues regarding the legitimacy and inheritance rights of the conceptus will most consistently be addressed when explicitly provided for in the will of the decedent.