Post Death Reproduction


The posthumous usage of cryopreserved sperm for reproductive purposes is an issue fraught with medical, ethical and legal considerations. These considerations require in addition the delicate balancing of the interests of the deceased and his/her family with that of the rights of the child to be conceived, in particular in light of the fact that:
Such child who is being intentionally created will not be permitted the opportunity to have a relationship with its deceased parent ; and

There are no longitudinal studies available regarding the emotional and psychological effects hereof on the child ..

Brief Overview on International Law

Germany, Canada, Sweden, France and two States in Australia prohibit the posthumous use of gametes. America and Belgium permit posthumous retrieval and usage of gametes by a surviving spouse and in certain States permit this even in the absence of the deceased’s prior written consent thereto. USA Courts have had to apply their minds to a number of post-birth related complications hereon viz the issue of inheritance rights, social security rights ; the right to be identified as the child of the deceased on the relevant birth certificate, and the right of the child to receive a deceased father’s surname. The position in England is governed by the Human Fertilization and Embryology Act (1990) which permits posthumous storage and usage of gametes on proviso that certain conditions have been met. Recently the Australian Courts (2011) provided that a surviving widow holds proprietary rights over her deceased husband’s sperm.

Brief Overview on South African Law

South African Law does not deal specifically with this issue. The National Health Act 61 of 2003 and its regulations thereto are lamentably silent on the issue of the posthumous sperm retrieval and the use of cryopreserved sperm/gametes & embryo in case of death of the one intended parent.

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