Posthumous reproduction : ethical and legal issues

Abstract

This dissertation seeks to explore the numerous ethical and legal issues which are associated with posthumous reproduction. Its main aim is to demonstrate that due to the complex ethical and legal issues that are involved, which predominantly impact the deceased man and the posthumously conceived child, the local legislation regulating assisted reproductive technologies should not be liberalized to introduce posthumous reproduction. Currently, amendments to the Embryo Protection Act (EPA, 2012) are being proposed to widen access to assisted reproductive technology and to introduce other assisted reproductive techniques which presently are legally forbidden, including gamete donation, embryo freezing and surrogacy. Introducing these assisted reproductive techniques within the EPA could act as a catalyst to the introduction of posthumous reproduction. Therefore, this dissertation aims to demonstrate that although advances in reproductive technology make posthumous reproduction a possibility, the multiple ethical and legal issues involved demand that extreme caution is exercised when requests are made for posthumous use or retrieval of gametes. The conclusion drawn is that in countries where posthumous reproduction is already practised, it should only be considered if the deceased man had provided clear disposition instructions authorising posthumous use of his gametes by his surviving spouse or partner and if the welfare and best interests of the posthumously conceived children are guaranteed and promoted through appropriate legislation. The legal landscape surrounding the practice of posthumous reproduction and its regulation demonstrates a lack of homogeneity both within European countries and outside European countries, which enhances the phenomenon of cross-border reproduction. Irrespective of whether a country’s legislation governing posthumous reproduction is liberal or restrictive, the emotional welfare and financial support of the posthumously conceived child should remain of supreme concern.