Posthumously conceived children: an international and human rights perspective.

• Author: Sabatello, Maya
• Position: Legal and Ethical Implications of Posthumous Reproduction

1. THE PHENOMENON OF POSTHUMOUS CONCEPTION II. POSTHUMOUS CONCEPTION IN COURTS III. THE LEGAL DISCOURSE ON POSTHUMOUSLY CONCEIVED CHILDREN IV. POSTHUMOUSLY CONCEIVED CHILDREN A. Parentage Acknowledgement B. Family Structures C. Identity Harm D. Inheritance and Social Benefits V. CONCLUSION In 1997, Diane Blood famously won a court case allowing her to export the sperm of her dead husband from England to Belgium with the goal of conceiving a child with the assistance of medical technology. (1) The pictures of a smiling Ms. Blood exiting the British Court after her initial victorious ruling, and later on, her pictures with her first, and then second, son have captured much international attention. Since then, more and more children have been posthumously conceived, and the phenomenon has received growing attention. Not only does posthumous conception capture the social imagination in its construction of parenthood and families, but it also raises new legal quandaries. Questions about the scope of reproductive freedom, the limits of consent, and the value of genetic material as property are all pertinent. As adults make reproductive choices, physicians provide the needed medical services, and courts adjudicate related dilemmas, debates over posthumous conception have centered on the rights and interests of the adults at stake.

   Significantly less attention has been given to the resulting children. Certainly, this neglect may be at least partially attributed to the focus on the moral and legal status of embryos or even pre-embryonic entities. But as children are the end goal of the procedure, attention to their interests and rights is cardinal. Are posthumously conceived children harmed by being born? What rights do posthumously conceived children have--or should they have? How can their interests be protected? And importantly, how do children conceptualize the related rights and interests for themselves?

   This essay considers posthumous conception from an international and child-entered approach. After a sketch in Part I of the phenomenon of posthumous conception and the complexities it evokes, Part II examines the types of issues arising in court cases concerning posthumous conception. Part III considers how courts in their rulings have addressed the welfare and best interests of posthumously conceived children and analyzes the scope and meaning of relevant decisions. Part IV looks into children's rights or interests raised in those judicial decisions: parental acknowledgement, family structures, identity harm, and inheritance and social benefits. This part draws on the Convention on the Rights of the Child (CRC), (2) prime instrument to advance children's rights on the international level, incorporating as much as possible the perspectives of children. I argue that the discourse must include concern for the rights and interests of posthumously conceived children and that a new special category of children who are "outcast" cannot stand the test of equality and non-discrimination, nor of the entrenched principles of child welfare and best interests. Moreover, I suggest that attending to children's perspectives may illuminate the gaps in the current discourse and what needs to be addressed. Finally, Part V draws some conclusions and calls for a more relational approach to ensure that posthumously conceived children do not pay the price of their parents decisions and that their welfare and best interests are upheld.

1. THE PHENOMENON OF POSTHUMOUS CONCEPTION

   Although in most societies procreation holds a central place in ones community and ones own social fabric, no other medical development has raised as many opposing voices as assisted reproductive technologies. The phenomenon of posthumous conception is no different; on the contrary, it both revisits and extends controversies about the scope of reproductive freedom, the family, and medical technologies. In explaining the excitement--and criticism--that arose, this Part highlights why this phenomenon has captured national and international attention and pinpoints the ethical and legal dilemmas that ensue.

   The first reason for the growing interest in posthumous conception is the sensational nature of the issue. While examples of children born after the death of their fathers ("posthumous birth") can be found in earliest history, (3) the phenomenon of posthumous conception, in which medical technologies are used to achieve a pregnancy, is relatively new. Although sperm freezing became possible in 1949, reports suggest that the first posthumous conception occurred in 1977, (4) the first posthumous sperm retrieval was in 1980, (5) and the first child born after posthumous sperm retrieval was Liam, the Bloods child, in 1998. (6) Egg retrieval and preservation is even more recent. (7) Because egg harvesting from a live woman is significantly more medically complicated than retrieving sperm (even from a dead man), (8) it became possible only in the late 1970s with the development of in-vitro-fertilization IVF): the first reported case of birth after egg freeze was in 1986. (9) Further, although harvesting of female ova or tissue is now possible, using eggs that were extracted posthumously or from a dying woman (without her full cooperation) is ever more complex. Gestation requires a surrogate mother. Yet this is fraught with social and ethical disagreements, and legally, many countries prohibit the practice of surrogacy. (10) Consequently, there are no published reports of children born as a result of these recent techniques, (11) and the court only approved--for the first and possibly only time--a family's request to extract eggs from a woman who was declared brain dead as recently as 2011. (12) Thus, posthumous conception using gametes extracted during life for reproduction after the man or woman died--or following the retrieval of sperm or especially egg from the dead--represents the most recent form of the "new family."

   Second, posthumous conception marks another shift in the social construction of kinship. Certainly, the scientific revolution in fertility treatments had already shattered the traditional conceptualization of the family as a union between a man and a woman. New technologies like hormone treatment, IVF, and gamete donation gave a couple the chance of overcoming infertility. They also enabled single women, gay couples, and transgender individuals to become biological parents. Indeed, such non-traditional families turned into visible consumers in the market for assisted reproductive technologies. (13) Nonetheless, the phenomenon of posthumous conception is unique among those new technologies. It does suggest some sort of continuation of the traditional family structure of a husband and wife (and increasingly, also of other unmarried heterosexual couples) even if one party to the relationship is no longer alive. (14) But, while the law commonly treats children born within a certain accepted time period after the father's death generally, around three hundred days from the fathers death) as any other child who is born "into the marriage,"(15) posthumous conception can extend the timeframe for a "marital child" for a longer period, and potentially, indefinitely. (16)

   Simultaneously, posthumous conception opens the door for significantly more complex familial relationships. So far, the most common scenario is that the life partner of the deceased, generally his widow or girlfriend, seeks to use his frozen gametes herself, intending to fertilize the egg and carry the pregnancy to term. Increasingly, however, other scenarios are arising. (17) For instance, a surviving husband who has possession of frozen embryos he had created with his now deceased wife can contract with a surrogate mother to carry the pregnancy to term (this happened recently in Israel (18)); he might just as well decide to remarry and request that the new wife be implanted with the embryos created with the previous wife. Parents of a deceased or dying person can request that doctors harvest the gametes of their loved ones for donation (19) or to be used along with gamete donation or surrogacy to create a grandchild. (20) Third parties may further gain possession of gametes or frozen embryos when either one, or both, genetic parents die, and these new owners could either carry the pregnancy or contract with a surrogate to undergo a pregnancy. In cases of gamete donation, a third party might purchase gametes if fertility clinics do not discard them after the donors death. Moreover, given the rise in legal recognition of same-sex couples as family units, the surviving partner of a same-sex couple may soon turn to posthumous conception as well. (21) For a gay man, that would mean using the sperm of the deceased partner and would require a surrogate and an egg donor to bear a child who is not genetically related to him. In the case of a lesbian woman, she may seek to take an embryo from her deceased partners eggs and a sperm donor (whether created while she was alive or after her death) and have it transferred to her own uterus, to that of a surrogate, or to that of a new partner. In each of these cases, it is unclear who should be registered as the father or mother on the child's birth certificate or acknowledged as the child's parent. In short, medical advances in posthumous conception mean that questions about kinship, familial relationships, and parentage have become more complicated, and are likely to become even more so.

   Finally, posthumous conception creates a new front in reproductive choice. While parental reproductive freedom is often viewed as a basic right, (22) its entanglement with medical technologies that enable people to materialize this right beyond the "natural" has raised acrimonious debates. (23) Supporters of reproductive freedom have argued that (considering the financial, social, emotional, and other burdens associated with raising a child) parental...