Regulating posthumous conception

Dr. Kirsty Horsey

Progress Educational Trust

18 November 2003

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[BioNews, London] Women in Israel will be able to harvest the sperm of their dead husbands, even if the men had not given their prior consent. But the new guidelines, released last week, also say that a widow will not be able to claim the sperm if the husband had clearly indicated while alive that he did not want it used for artificial insemination. Attorney-General Eliyakim Rubinstein's new guidelines apply to life-partners, as well as wives, but not to parents or other relatives.

Sperm must be removed from a man's body within 24-36 hours, if it is to be frozen and used for impregnation, which means that women who have to go to court to seek such permission could miss this deadline. The new ruling will allow clinics to remove sperm immediately, although the widow will then have to submit an official request before she can use the sperm to become pregnant. 'In a situation where a partner is interested in having a child with the sperm of the deceased it is appropriate to allow her to do so' said Rubinstein. The new directive has been described as unprecedented by fertility treatment experts. Guido Pennings, of the European Society of Human Reproduction and Embryology ethics committee, said he knew of no other country that allows wives or life partners to remove sperm from the deceased without prior written consent.

In the UK, Diane Blood was initially refused permission to become pregnant using sperm taken from her husband after he died, although she was eventually allowed treatment in Belgium, and has since given birth to two sons. In September, she won a legal battle to allow her late husband to be named as the father on their birth certificates, with the passing of an amendment to the Human Fertilisation and Embryology Act of 1990.

Last week, a Japanese court refused to recognise a dead man as the father of a child born using his frozen sperm, a decision which the mother is expected to appeal against. 'My child was born at the will of my husband who had hoped for the birth of his own child in the future' she told a previous hearing. 'The child's welfare must be protected', she added, referring to her concern that her son will face discrimination for being illegitimate. But the district court in Matsuyama said there was no evidence that her husband, who died from leukaemia, had consented to the use of his sperm after his death. 'There is a clear division [among industrialised nations] in posthumous fertilisation' said Waseda University law professor Masayuki Tanamura, commenting on the case.

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.