Posthumous Procreation: Should We Be Having Children After We Die?
I’m all for advances in medical science, especially when it comes to assisted reproductive technology (ART), but I read an article last week that had me questioning this mentality.
The article was published by BBC News and was titled, 'Our son died. Now we can use his sperm to have a grandchild' (1).
The story is about parents in India who have battled for years with the Delhi High Court to have the hospital release their son’s frozen sperm. Their son had undergone fertility preservation prior to his chemotherapy for non-Hodgkin’s lymphoma. The therapy was unsuccessful, and after their thirty year old son passed away, they wanted to use his sperm to have a grandchild.
Although they were denied by the hospital and courts for four years, the parents finally won their case and can proceed with having their grandchild.
But should they?
I think it is scientifically amazing that we have the technology to allow someone to posthumously procreate. I understand the drive that these parents and others have to continue their family. Our children and grandchildren are our legacy, and creating a family is a raison d’etre for many people.
However, I believe that there are two critical aspects that have to be taken into consideration when it comes to having children after death:
Explicit consent.
Consideration for the child.
Allow me to explain more what I mean by these two aspects.
Explicit Consent
In this news article, the man who passed away froze his sperm for the potential to have children in the future. He has no partner. As far as the article discloses, he never talked about having children, and he definitely did not give written consent for his parents to use his sperm.
While the freezing of his sperm does indicate he would consider having children in the future, this idea probably relied on a wife / husband, a home, and all the other check boxes of pre-familyhood that people go through before they are ready to have children.
Because he left no explicit documentation that gives his parents permission and actually asks them to use his sperm, it feels like this is stealing from him.
The decision whether or not to have a child is arguably one of the most important decisions a person makes in their life. This decision was taken from this man.
As with third party reproduction, consent is paramount. Consent from both gamete donors, from the intended parents (IPs), and from the gestational carrier (GC).
Consent is needed from everyone.
So why is explicit consent not required for this deceased man? Apparently, his parent’s legal team was able to argue that his frozen sperm provided enough consent in combination with other cases that showed a precedent for such a legal decision.
I don’t buy this. I believe sperm and any biological material should only be the ‘property’ of the person they belong to, and that this ‘property’ should not be transferred - from a living or deceased person - without expressed written consent.
While other property can legally be transferred to the deceased man’s next of kin, which in this case is his parents, we are not talking about a simple family heirloom such as a piece of jewelry. Gametes are us, and they can lead to the creation of life. They should not be treated the same as an old trinket.
Consideration for the Child
In addition to consent, the child and consideration for their future circumstances is paramount.
Bringing any child into the world requires certainty that they can be cared for financially, emotionally, and physically by the caregivers.
This aspect is called into question with these older adults who are now planning on parenting their grandchild. While the story does state that they have support from their daughters, they will still be the primary caregivers.
This begs the question: How old is too old to be a parent? In the UK, there has been a case where social services have taken away a couple’s child through ART, deeming them unfit to care as ‘Britain’s oldest parents’ and igniting a bitter custody battle (2).
Also, all people experience ages very differently. A vegan marathon runner who is turning 65 is very different from someone the same age who smokes, has never exercised, and eats most of their meals at the local pub.
Health is only one aspect of age. Older people have less productive working years, and so their potential to earn and support a child is less. On the other hand, older people may be financially free or have lived frugally, and so they may be much better off financially than younger parents.
This demonstrates that there is no single set of guidelines for parental age, health, or finances. However, the benchmark needs to be if their circumstances allow for them to adequately provide and care for the child.
However, in this case, there is another critical element that bothers me.
This child is to be a ‘replacement’ for their son.
The intended parents in this case still have daughters - and presumably grandchildren - alive. Yet, they want a grandchild made from their son’s sperm.
Imagine the pressure that will be felt by this child. To be the legacy of the father he will never meet.
Also, this will likely not ‘satisfy’ the grandparents. What they need is therapy to accept the loss of their son. They need to grieve, and remember him as he was, not try to remake him into another person who will have to live with that burden.
I do not believe that these grandparents have the best interest of this child at heart. The question that should always be the priority for any IPs and current parents is: What is best for their child? This is not that, especially from this emotional and mental aspect of ‘replacing’ their son.
Universal Regulation
These cases are complex, and every one is unique, but the world needs guidelines and regulations for posthumous reproduction.
As with everything related to ART, I believe that these regulations should be universal so as to maintain ethical standards across the world. The article references the current patchwork of laws around the world:
The US, UK, Japan, Czech Republic and some other countries allow posthumous reproduction with written consent. Australia imposes an additional condition of a one-year wait period after the death to allow time for emotions to settle.
The practice is prohibited in a number of countries such as Italy, Sweden, Switzerland, France, Malaysia, Pakistan, Hungary and Slovenia, while most of India’s South Asian neighbours - Sri Lanka, Nepal, Bhutan and Bangladesh - have no guidelines.
The laws have to be universal or else people will find a loophole and a way to get it done, especially when in the desperate state of grieving for the loss of a child.
I am supportive of all types of families, and grandparents raising grandchildren is a perfectly valid form of family.
However, I do not believe that people who already have living children and grandchildren should be able to ‘replace’ their son without his consent and direction for this to happen.
In fact, I do not believe family creation and ART of any kind can happen without explicit consent of all parties involved. Also, I do not believe posthumous reproduction should happen when its goal is to replace someone who has died.
ART is not for every situation where it can be done, and this is something I have to admit. However, that goalpost will continuously move. What is too old and frail now will not be the same age in 100 years. I mean, millennials are already not aging dermatologically. So, the regulations need to be adaptable and change with the times and world we live in.
However, in 2024, parents using their son’s sperm with no expressed permission in order to bring a child into the world as his legacy ‘replacement’ does not seem like it is in line with ethical standards.
Inappropriate posthumous procreation will only add fuel to the anti-rainbow family and other movements that need ART.
ART has to be protected, and that sometimes means the answer should be no to having children after death.
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