19 October 2023
The possibility of freezing genetic material, i.e. creating embryos in vitro, has led to new forms of assisted reproduction. Today, genetic material is possible to use even after the death of the person from whom it originated. The freezing of sperm cells gained importance when in 1953 scientists Bunge and Sherman discovered that human sperm cells can be frozen and then reused for fertilization purposes after thawing as in this way healthy children are born.
Also, at the moment when the conditions existed for the creation of embryos in vitro, it became possible to freeze them for future needs too, so this procedure is carried out almost as well as the freezing of sperm cells.
There are several possible cases of posthumous fertilization. First, the situation in which the couple was already involved in the procedure of in vitro fertilization, frozen embryos exist, and a clear consent of the partner for the use of such material in the event of death exists as well. This situation represents a clear case, which does not raise questions, of course, assuming that posthumous fertilization is allowed in the particular jurisdiction. Another case exists when the partners, when accessing the techniques of assisted reproduction, do not express their opinion on posthumous fertilization, but their genetic material is frozen during the procedure itself. In that case, the surviving partner can ask to be allowed to continue using the frozen material for the needs of posthumous fertilization. The third case of posthumous insemination represents the most controversial case, which causes the most conflicting views, due to the fact that it deals with sensitive issues to which it is difficult to give a definitive answer. These are cases in which there is no pre-frozen genetic material, but the surviving partner requests the collection of fertilized cells from the deceased partner after his death. In this option, two cases are possible: the first, in which there are clear indications that during his lifetime he expressed a clear desire to have offspring, and the second, in which only the surviving partner testifies to the couple’s desire to have offspring. If posthumous fertilization is allowed, it would be desirable to establish a specific waiting period, which would have to elapse before starting the procedure of posthumous insemination, with the simultaneous obligation of psychosocial counseling.
Whether the frozen genetic material will be used must depend solely on the wishes of the surviving partner, never on third parties, for example on the parents of the deceased. On the other hand, if there is no written consent regarding the posthumous use of frozen genetic material, a distinction should be made in relation to frozen embryos and frozen reproductive cells. Namely, in the case of sperm cells, the lack of consent should prevent their use. The so-called opt-out model, that is, the presumed consent model, according to which there is a rebuttable legal presumption that all persons consent to the procedure of posthumous fertilization, would not be acceptable, unless they expressly opposed it during their lifetime. However, when it comes to embryos, if the legislation does not contain an explicit prohibition on posthumous fertilization, some of the authors are of the opinion the decision of the surviving partner should be respected. Posthumous reproduction is an exception and should be treated as such, so there is no justification for posthumous extraction of fertile egg cells. More permissive stand would seriously shake the values in the field of reproduction, which cannot be reduced only to the benefit of the person who wants to become a parent.
There are arguments against and in favor posthumous fertilization. Some countries accepted practice of posthumous fertilization, on the other hand, some countries explicitly forbid posthumous fertilization, and some countries do not have explicit regulation, so it is not clear at first glance is this practice allowed or not. This procedure is allowed in, for instance UK, Spain, Belgium, Greece, Northern Macedonia; but forbidden in, for instance: France, Italy, states of the region of former Yugoslavia (except Northern Macedonia). In Serbia posthumous fertilization is not explicitly forbidden or allowed.
One of the arguments against posthumous fertilization is the fact that born child would not have the father – de facto. De iure, the father is mother’s husband or partner. So, the interest of the child to have two parents who will take care of him/her is the reason why some countries do not allow posthumous fertilization.
One of the arguments which is in favor of posthumous fertilization is the respect of the reproductive right of the woman to have a child regardless of the fact that her husband/partner is not alive.
Countries which allow posthumous fertilization stipulate conditions which should be met for its implementation. For example, in Greece, assisted reproduction after the death of the husband or partner is allowed with the court’s permission and only if certain conditions are met. These conditions are: husband or partner was ill and the illness could have had an impact on the conception or could endanger his life; the husband or partner has given his consent to post mortem conception and the document is certified by public notary. Assisted reproduction is not allowed before 6 months after his death and more than two years after his death (Art 1457 Act 3089 on Medically assisted human reproduction).
Serbian Law on biomedical assisted fertilization 2017 defines bio-medical assisted fertilization (BMAF) as a controlled procedure of female fertilization conducted in compliance to current standards of medical science, different from sexual intercourse (Art. 3/1).
This Law does not have explicit stipulation if posthumous fertilization is allowed or forbidden. Thus, it is necessary to have in mind relevant articles which existed in this Act. Mutual life together in the moment of performing assisted reproductive technologies is one of the conditions for these procedures (Art. 25/1). Other condition is to obtain written consent of all persons who are involved in the procedure and especially before starting each procedure (Art. 27). The consent may be withdrawn in writing until the sperm, unfertilized eggs or early embryos are implemented into the woman’s body. Prior to inserting sperm, unfertilized eggs or early embryos, the responsible physician should make sure if the consent exists or has been withdrawn (Art. 28).
There is another provision which should be mentioned in the context of posthumous fertilization. This provision states that in the BMAF process is allowed to use reproductive cells and embryos which belong to donors who are alive (Art. 41). Actually, the Law refers to donors in this provision, but it is difficult to understand why it is necessary for the donors to be alive, as a matter of fact it is very difficult or sometimes impossible to find out is the donor alive or not, as the situation might be that he donated cells or embryo sometime prior the procedure and that the bank does not have data on the fact is the donor alive or not. It is imaginable that the lawmaker actually has in mind posthumous fertilization in the case of husband/partner cells or embryos.
In Serbian law, apart from married or heterosexual partners who are considered as subjects of medically assisted fertilization procedures, exceptionally, the right to bio-medically assisted fertilization procedure is entitled to an adult and legally capable woman living alone who is able to perform parental duties in the best interest of the child (Art. 25). Donor insemination (AID) of the woman without a partner is a procedure which in family law has a consequence that the born child would not have a father, as it is not allowed to establish paternity of a donor. The child would have just one parent, the mother. From the family law aspect, the interest/right of the child to have both parents should be considered. If the single woman has access to AID, this interest/right of the child would not be respected. On the other hand, one can argue that a single woman has reproductive rights, including the right to AID. This situation has some similarities with posthumous fertilization. In both cases, the child will not have father de facto, she/he will have only one parent — the mother. De iure, in the situation of posthumous fertilization the child will have the father as father is mother’s husband or partner. So, the argument that the child will not have a father to take care of him/her in the situation of posthumous fertilization is not justifiable as this is the same in the situation of a single woman as a subject of the process. Having in mind that Serbian law allow single woman to have access to assisted reproduction procedures it could be argument to allow posthumous fertilization in Serbian law de lege ferenda.
In case of posthumous conception of the female partner with the fertilized cells of the deceased spouse/partner, the father of the child is to be considered the man whose sperm cells were used for fertilization, and who is also the biological father of the child, provided that he agreed with this type of fertilization. However, succession law in Serbia does not recognize posthumously conceived children as descendants of their deceased biological parents. Arguing that the child should have the right to inherit his biological parents, we consider necessary for the legislator to take appropriate action to change the existing law in order to guarantee the right of the born child to inherit his deceased parent and his relatives.
The legal consequences on parenthood if the child is conceived posthumously, with the fertilized sperm of a deceased husband/partner, are identical to heterologous insemination with the reproductive material of a deceased donor. The mother of the child is considered to be the woman who gave birth to him, and the father is her spouse or partner, if he has given written consent to insemination. Thus, the child exercises inheritance rights towards him, as well as towards his relatives whom a child can inherit in accordance with the rules of the Law on Inheritance of Serbia, not towards the donor whose genes he carries.
As a comparative example we present the solution of the UK law. In UK, since 2008, the family law consequence in the case of posthumous fertilization is that the man whose sperm is used in the conception of a child is considered to be the legal father. It is necessary to have his consent to posthumous fertilization by his sperm; or his consent to transfer the embryo using his sperm before his death; including his consent to place the embryo in the woman after his death; and the consent to being treated as the father of any resulting child. The consent must not be withdrawn. The condition on the woman’s behalf is that she has elected in writing, no later than the end of the period of 42 days from the day on which the child was born, for the man to be treated as, the father of the child. In addition, it is necessary that no-one else is to be treated as the father of the child or as a parent of the child or if the child is adopted (Sec. 39 Human Fertilization and Embryology Act 2008).
However, according to earlier UK legislation (Human Fertilization and Embryology Act 1990) it was stipulated that:
where „the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not to be treated as a father of the child”(28. 6. b).
„This provision is inserted, as the Warnock report recommended, to ensure that estates can be administered with some degree of finality and to give effect to Warnock’s expressed desire that fertilization of a woman following the death of her partner (or husband as Warnock would have limited it) should be actively discouraged. This they recommended because it may give rise to profound psychological problems for the child and the mother.” Eventually, after 18 years this stipulation is abandoned and replaced with the rule that the man could be considered as the legal father of the child conceived after his death.
If embryo transferred after the death of the husband who did not provide sperm (donor insemination), but the embryo was created at a time when woman was a party to marriage, the other party to the marriage died before the placing of the embryo and the other party to the marriage consented in writing (and had not withdrawn the consent) to place the embryo in the woman after his death, and to being treated as the father of any resulting child, then the man is to be treated as the father of that child. Other conditions are that woman has elected in writing no later than the end of the period of 42 days from the day on which the child was born for the man to be treated as the father of the child, and no-one else is to be treated as the father of the child or as a parent of the child or the child is adopted[FTG1] .
[FTG1]Befejezetlen benyomást kelt.
