21 January 2025 – Novi Sad School of Journalism
Public interest is a reason why the media should report on some issues. Is there a public interest in posthumous fertilisation? Public interest in posthumous fertilisation could be seen in the fact that posthumous fertilisation is one of the artificial reproductive technologies (ART) that represent women’s reproductive rights. It is important to stress that reproductive rights are human rights. Another important aspect of posthumous fertilisation is the question of the interests of the child born.
The reason why a couple enters the process of biomedical fertilisation is reduced fertility. Therefore, it is likely that the woman’s reproductive right can only be realised if the existing embryo is transferred into the woman’s body after the death of her husband/partner.
The interest/right of the child to have two parents if the child is born posthumously needs to be examined. It should be noted that under Serbian law a single woman has access to AID, so the interest/right of the child to have two parents is not respected in this situation either. In both cases, the child will de facto not have a father, but only one parent – the mother. The difference is that in the situation of posthumous insemination, the child will have the father de iure, as the father is the mother’s husband or partner.
„Supportive parenting” is the solution that exists in the UK in a situation where a woman without a partner uses techniques of biomedical fertilisation. This solution involves determining whether there is a possibility that other people in the family or social environment will share with the mother the responsibility of bringing up a child who has no father. This solution seems suitable for use in posthumous fertilisation. In Serbian society, family relations are very important for family members and very well developed. Therefore, it would not be difficult for a woman to find a relative to help her raise a child. Social relations are also developed in Serbia, so it seems that a woman could easily get help from her friends.
There is an argument that the use of posthumous fertilisation could cause serious psychological problems for the child and the mother. This argument was emphasised in the UK 35 years ago and that is why the use of posthumous fertilisation was not recommended. In the meantime (2008), the UK has decided that the father of the child in posthumous fertilisation is considered to be the husband or partner of the mother, thus allowing the use of posthumous fertilisation. In order to eliminate or at least reduce the psychological impact on the mother, some legislation specifies the period after the death of the husband/partner during which posthumous insemination is permitted.
For example, in Greece there is a waiting period of 6 months after the death of the husband and a period of 2 years after his death. In Northern Macedonia, the condition is that insemination can be carried out no later than one year after the husband’s death. Psychosocial counselling of the mother, as one of the stages within the posthumous fertilisation procedure, would avoid or minimise the psychological consequences.
In Serbian court practice, there have been two cases concerning the use of frozen embryos after the death of the husband.
The first case is that of the Marković couple, who wanted to have a second child. This case took a long time and the second instance decision was made by the High Court in Belgrade in January 2024. As both spouses had already entered a period of reduced reproductive capacity, they decided to undergo in vitro fertilisation. Five embryos were created, two of which were transferred back into the uterus, while three were frozen. The returned embryos did not survive. In the meantime, the husband died in January 2020 as a result of Covid 2019. The wife applied to continue the procedure, but the clinic refused. The wife also requested that the embryos be transferred to another facility, but the clinic also rejected her request. The woman then filed a lawsuit against the clinic at the Basic Court in Belgrade (P. 462/22). In the lawsuit, she demanded that the Clinic hand over the frozen embryos to her, claiming that she had the right to receive them on the basis of the inheritance decision. The Primary Court in Belgrade rejected the woman’s claim.
The Higher Court in Belgrade held that the wife had acquired the right to make independent decisions regarding the disputed embryos, as she had inherited the will expressed in the agreements on ART. The question of the legal status of the will expressed in the agreements should be raised. Does the will constitute some kind of right and is it inheritable or not? It must be emphasised that rights and obligations which are heritable are only rights and obligations which have the nature of property. On the contrary, the expressed will is of a personal nature. In fact, consent is rather an expressed will than a right. In addition, it is important to stress that in the law of succession there is a rule that things and rights can be inherited. It is questionable whether an embryo falls into these categories. The potential of the embryo to become a human being should affect the legal status of an embryo as a thing in law.
The second case is that of the Prizrenac couple. They underwent ART because the husband was diagnosed with testicular cancer. Ten healthy embryos were created, but the husband died in the meantime. The husband made a will in which he bequeathed the use of the embryos to his wife. The court case lasted quite a long time and finally the second instance court – the Supreme Court in Niš – made a decision in September 2024. In the decision, the court stated that the frozen embryos belong to the plaintiff (the wife) and that she can use them in Serbia.
It should be noted that in the law of inheritance there is a rule that the inheritance consists of all inheritable rights that belonged to the testator at the time of death (Article 1/2 of the Serbian Law on Inheritance). If the will and the embryo are not inheritable, they do not constitute the legacy of the testator. In view of the Law on Succession and its rules, the argument on which the courts based their decision does not seem to be valid.
It must be said that it is a pity that the Serbian court did not use the opportunity to analyse whether posthumous fertilisation is actually allowed in Serbia or not, but rather to analyse whether the wife has a right to receive the frozen embryos after the death of her husband.
The media informed the public about these two recent cases of posthumous fertilisation in Serbia, but rather as a private matter of the woman who wanted to get frozen embryos. Unfortunately, no expert in the field was consulted.
After the lecture, the participants of the Novi Sad School of Journalism had several questions and comments on the status of the embryo, infertility, the jurisprudence of the European Court of Human Rights, etc.
