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On the Tyranny of Partners in Posthumous Reproduction Cases

By Shelly Simana

The topic of posthumous reproduction has produced great interest globally due to the fundamental dilemmas it raises. The most controversial cases are the ones in which there is no explicit consent on behalf of the deceased person for using his or her gametes after death. In those cases, courts try to trace the presumed intentions of the deceased person, heavily relying on testimonies of the deceased’s family members and friends.

I recently published an article about this topic, in which I advocate for a more permissive approach toward posthumous reproduction. In this blog post, I would like to focus on a particular issue—the permission for the deceased’s partner, but not the parents, to engage in posthumous reproduction.

In several countries that allow posthumous reproduction, the only person who is authorized to use the deceased’s gametes is the deceased’s partner. For instance, according to committee opinion published by the American Society for Reproductive Medicine:

“[i]n the absence of written documentation from the decedent, programs open to considering requests for posthumous assisted reproduction should only do so when such requests are initiated by the surviving spouse or partner.”

Similarly, according to the guidelines issued by the Attorney General in Israel,

“it is assumed that the spouse is the most faithful representative of the deceased’s will as she was the closest person and natural partner in the matter in question. The spouse is best suited to represent the deceased’s position and desires in offspring in general, and the use of his sperm after death in particular” (in Hebrew, my translation).

The requirement that the deceased’s partner should be the sole individual who can use the deceased’s gametes creates several difficulties. First, in many cases, the deceased person did not have a partner before he or she died, and thus it is not clear why parents should be prohibited from using their child’s gametes in cases in which the deceased person was single. Second, the requirement ignores the importance of parents in their children’s lives. The assumption that the partner is the only one who faithfully represents the deceased’s will is wrong and inequitable. Many parents enjoy close relationship with their children and are dominant figures in their lives. They are also involved in the children’s plans and are aware of their desires. Third, the assumption that progeny of a person solely from his or her partner, even after his or her death, is consistent with his or her wishes, is not self-evident. While it make sense to assume this when a person is alive and has a permanent partner, it is harder to hold such an assumption when the person does no longer exist and the circumstances have changed (for example, the deceased’s partner may meet a new partner and decide to build a family with him or her).

Two recent cases in Israel best illustrate the above difficulties. The first case, Anonymous vs. Anonymous, app. no. 7141/15 (in Hebrew), concerns the request of parents to use their son’s sperm, despite opposition from that son’s widow. In this case, S was killed in a car accident when he was 28 years old. About three months before his death, S got married. S and his partner had a long relationship that has known many ups and downs. Since S’s death, his parents have been asking to use his sperm for reproduction. S’s partner deliberated on this matter during the first years after S’s death, yet at a certain point she met another man and brought with him two children into the world. S’s parents submitted a request to use S’s sperm for reproduction (they wished to inseminate another woman who is known to them with the sperm or to donate it). The Israeli Supreme Court rejected the request and determined that parents do not have a protected interest in grandparenthood. Parents do not have the right to demand the birth of their grandchildren, so the Court ruled. The Court insisted on the view inshrined in the Attorney General Guidelines (which are not legally binding) that no one, except the deceased’s partner, has a right to bring children from the deceased’s sperm after his death.

The second case, The Attorney General vs. Anonymous, app. no. 6046/18 (in Hebrew), also concerns a request of parents to use their son’s sperm for reproduction. In this case, the parents had two children and sadly lost both of them. In 2003, their youngest son died by suicide during his military service, when he was 19 years old. Five months later, they lost their eldest son, who was murdered when he was 27 years old and was about to marry. The parents asked to use their eldest son’s sperm to fertilize the eggs of a woman who is a childhood friend of the deceased’s sister. They claimed that after the death of the youngest son, the eldest son wondered why no sperm was retrieved from his brother’s body. This fact, the parents argued, indicates that the eldest son wished for continuity after death. It should be noted that the eldest son’s partner did not object to the use of the sperm by the parents. The Israeli Supreme Court denied the request and determined that in cases in which the deceased person had a permanent partner and did not expressly express his wish or consent to retrieve sperm from his body and use it after death, only the spouse should be allowed to use the sperm. Accordingly, the Court held that since the parents were the ones who sought to use the deceased’s sperm, and not the spouse, and because the deceased did not explicitly express a desire to bring children from a woman who is not his spouse, the parents’ request should be rejected. The Court also emphasized that the fact that the deceased wondered why his parents did not retrieve sperm from his brother’s body cannot indicate his own desire for continuity after death.

Unfortunately, both of the cases described above and the regulation in some countries express a view that is outdated and does not align with modern life. Though such view is accepted and entrenched in approaches to the law, it has been lost from our contemporary society. There have been major changes in the structure of the family unit that justify deviating from this traditional approach. It is my sincere hope that parents should not be precluded from the posthumous use of their children’s gametes and that countries will consider parents’ interests as well.

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