AN OVERVIEW ON LAW & ETHICS
Posthumous reproduction which includes the retrieval of sperm or ova from a deceased person as well as the usage of cryopreserved sperm for reproductive purposes is an issue fraught with medical, legal, and ethical considerations.
These considerations require the delicate balancing of the interests of the Living, the Dead and the Yet-To-Be-Born. These interests include:
- The Deceased’s interests to have his/her wishes upheld;
- The interests of the Deceased’s family;
- The interests of the Deceased’s spouse or partner to bring into existence and parent a child genetically related to the Deceased;
- The rights and interests of any children already born to the Deceased; and
- The rights and interests of the child yet to be born.
POSTHUMOUS REPRODUCTION IS THE BROAD LABEL FOR:
Posthumous Gamete Retrieval – i.e. The retrieval of Gametes from a person on death
Posthumous Gamete Conception – i.e.The use of Gametes for reproductive purposes which were retrieved during the life of the person and which have been cryopreserved
Posthumous Embryo Implantation – i.e. The use of Embryo fro reproductive purposes which Embryo was created from gametes of living persons.
AN OVERVIEW ON ETHICAL CONSIDERATIONS
The ethical issues relating to Posthumous Reproduction are manifold but include considerations that:
- The child who is being intentionally created will not be permitted the opportunity to have a relationship with its deceased parent ;
- The potential problem of identifying the parentage of the child on its birth certificate;
- The problem that there are currently no longitudinal studies available regarding the emotional and psychological effects of posthumous reproduction on the child born from such process ;
- Inheritance issues viz the child to be conceived versus that of existing beneficiaries under a Will ;
- The balancing of the wishes of the survivor spouse or partner with those of the Deceased (especially in those cases where the survivor’s rights to have their own biological child is tightly wound up with that of the Deceased. For example in cases where the survivor has no more gametic material to contribute towards the life of a child).
A BRIEF OVERVIEW ON POSTHUMOUS REPRODUCTION IN INTERNATIONAL LAW
A review of the approaches adopted by different countries in respect of Posthumous Reproduction reveals a patchwork of different regulatory approaches. Germany, Italy, Sweden, Denmark, and France prohibit the posthumous use of gametes. Australia, Canada, Israel, and the United States permit posthumous retrieval and usage of gametes by a surviving spouse in certain cases. Interestingly certain States in America permit this even in the absence of the deceased’s prior written consent thereto. USA Courts have however had to apply their minds to a number of post-birth-related complications hereon. Cases in this regard include 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). This Act permits posthumous storage and usage of gametes on the proviso that certain conditions have been met.
POSTHUMOUS REPRODUCTION UNDER 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 and embryo in case of death of the one intended parent. Having said that it is nonetheless clear on the reading of the above law that the Law does not outrightly prohibit posthumous reproduction as is clearly evidenced in the 2018 judgment in the case of NC v Aevitas Fertility Clinic.
The balancing of interests of the Living and Dead with the yet-to-be-born would in all likelihood necessitate legal investigation on a case by case basis with all relevant evidence pointing to intention (or the lack thereof) needing to be placed before the Court.