Question

Should the parents of the deceased ever be allowed to request retrieval of the deceased's gametes? What about a sibling? Why or why not?

Answer 1

Posthumous reproduction raises a wide range of legal and ethical issues that are among the ‘most challenging, difficult and sensitive that are likely to be encountered in the field of medicine, let alone reproductive medicine. These issues include, inter alia, the ownership of gametes, the inheritance rights and benefits of posthumously conceived children, and the social construction of families. This article focuses on a simple but important question: Should posthumous reproduction, in the absence of the deceased's prior consent, be legally permitted? This question has become crucial, due to the increasing number of requests on the part of partners and parents seeking to retrieve and use the deceased's gametes for reproduction.

Scientific advances enable to retrieve and use gametes of a deceased person, thereby creating a child after the death of a genetic parent. This article reviews and compares legislation governing posthumous reproduction in the United States, the United Kingdom, Australia, and Israel. It shows that each country has its own distinctive features, yet three common elements exist—legal ambiguity, a requirement for prior consent, and permission for the partner, but not the parents, to retrieve and use the deceased's gametes. The article demonstrates that courts often do not follow the legal requirements, and thus there are no clear guiding principles regarding posthumous reproduction. The article then discusses three justifications for permitting posthumous reproduction in the absence of the deceased's prior consent. The first justification relates to an interest in ‘genetic continuity’, which reflects people's desire in leaving a ‘piece’ of themselves in the world and maintaining a chain of continuity. The second justification concerns the ‘respect-for-wishes’ model of autonomy, according to which people must be treated in a way that we assume they would want to be treated. The third justification touches upon the interests of the deceased's partner and parents, as well as of the resulting child.