Abstract:

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.

The paper was cited by the New York Supreme Court in Matter of Zhu, 2019 NY Slip Op 29146;

The paper was selected as Editors’ Choice 2020 of the Journal of Law and the Biosciences.