Family Law

Ireland Endorses Children Of The Dead

The proposed Irish legislation addresses an interesting issue: posthumous conception.

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I’m not talking about the latest zombie horror flick, but one of the most fascinating topics in the area of Assisted Reproductive Technology (ART) law — post-death reproduction. Can people conceive children once they’re dead? Should they?

Ireland has proposed legislation on humans who die, but who nevertheless may still become parents. The legislation — which is titled the General Scheme of the Assisted Human Reproduction Bill 2017 — addresses several classic ART law issues. First, the bill allows egg and sperm donation in most circumstances. Second, it allows altruistic — i.e., unpaid surrogacy — but not paid surrogacy, which obviously is the more popular version. Given the controversial issues involved in these areas, a lot of bills often stop there. But fascinatingly, the Irish legislation addresses a third issue: posthumous conception.

Posthumous Sperm Use. The loss of a partner or spouse is always heartbreaking. But despite the loss, many people continue to want a child through use of the reproductive material of the deceased. The situations are varied. Sometimes, the couple had already been trying to conceive, and has material already stored and frozen. In other cases, the surviving partner actually wants material extracted from the deceased, to be used at a later time. (There’s even a third rare case, where both of the people are deceased, and a court leaves it up to the children as to whether to have more of their own siblings. Awkward.) There is no global consensus on how each of these situations should be handled. As I discussed in a previous column, the United States lacks any clear uniform rules, but generally permits post-death reproduction with specific consent in place. Some countries (like France) forbid posthumous conception altogether. Now, Ireland is trying to provide clear guidelines that describe when children can be conceived after the death of a parent, and when they can’t.

Consent. Consent. Consent. It’s almost like the drafters of the Irish bill read my 2015 Savannah Law Review article, Reproductive Rights for the Dead. There, my reproductive partner and I argued that the express consent of the gamete-provider is paramount. And merely having a mutual understanding that the couple wanted a child while both were living is not sufficient. Instead, the consent needs to be specific to the scenario where the gamete provider understood that his or her genetic material would be used to conceive a child after his or her death. Ireland’s legislative draft concurs. The new bill requires that the “deceased person provided his or her consent for his or her gametes, or an embryo created using his or her gametes, to be used for PAR [posthumous assisted reproduction] after his or her death.” Hear, hear. Good call, Ireland.

What If The, Er, “Gametes” Haven’t Been “Retrieved” Yet. As I mention above, there are cases where the reproductive material is still in, like, the person’s body. But under the proposed bill, that’s ok. If the eggs or sperm have not been previously provided and cryopreserved by the partner, the bill allows for extraction in cases where the person consents to that process, ahead of time. And lucky for me, I don’t have to get into medical or grody details, as the legislation does not specify methods of retrieval.

Stranger Danger.  You may recall that I’ve previously discussed the Biowill movement, spearheaded by Israeli lawyer Irit Rosenblum. The Biowill model allows a person to give permission for anyone, even a stranger, to use his or her gametes after death. But that idea, admittedly, is another step out there, and is too radical for the Irish for now. The Irish bill allows only the partner of the deceased gamete-provider to use his or her genetic goods. And the Irish bill narrows use even further, with a clear gender bias, by specifying that the child conceived with posthumously provided gametes must be carried by the partner (i.e., the partner must have a uterus). That presents an obvious problem for any surviving men who would otherwise have their partner’s eggs extracted. While it’s possible that a woman in a same-sex relationship could use her deceased partner’s eggs, in most cases, the limitation means the statute will only provide for sperm extraction by a female partner of a deceased man.

A Year To Grieve.  Built into the legislation is a requirement that the surviving partner wait a full year after the death, and receive counseling before undergoing an attempt to conceive with her deceased partner’s gametes. That provision definitely fees a little micro-managey to me, but I see the intent to safeguard the new parent’s psychological wellness. So, while I generally prefer the American style of letting people make their own decisions on their own time, I see the merits in the restriction.

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Overall, I offer my kudos to Ireland. It is great that Irish legislators are willing to spell out clear guidelines in this context. And while no one wants to ever be in this position, it’s a positive step that some survivors will still have a path forward to conceiving the child they hoped for.

Last, it’s time for a public service announcement: get your will done! And don’t forget to include specific instructions as to your intent for your genetic goods — regardless of whether your sperm or eggs have been retrieved from your body! For all you know, your partner is planning to extract your sperm or eggs the second you’re gone.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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