Genetically Related Children: Harvesting of Gametes from Deceased or Incompetent Persons
Journal of Health & Biomedical Law, Vol. 7, p. 147, 2011
28 Pages Posted: 11 Jul 2011
Date Written: July 11, 2011
In considering the application of the Social Security law to a posthumously conceived biological child of a deceased worker, the United States Court of Appeals for the Third Circuit observed in dicta that a case such as this, “presents a host of difficult legal and even moral questions.” This paper focuses on the standards and policies that should be applied in addressing the multitude of legal and moral questions that arise from the desire to produce genetically related offspring by using the gametes of deceased or incompetent persons.
Contemporary medical procedures using assisted reproductive technology have made it possible for even infertile people to have genetically related children. Similarly, even dead people can have children genetically related to them by retrieving their gametes or producing embryos using their gametes to fertilize an egg by in vitro fertilization. These embryos can then be cryopreserved for possible future use to produce a child who is genetically related to the incompetent or deceased person. The potential legal issues may not be initially evident, but issues arising from consent standards for harvesting and using gametes and public policy concerns are real and troubling. While the Uniform Parentage Act addresses some of the matters in the context of parentage of children of Assisted Reproductive Technology (“ART”), and the Uniform Probate Code deals with issues related to inheritance issues arising from ART, the American Bar Association Model Act Governing Assisted Reproductive Technology (“Model Act”) is the only proposed law which attempts to regulate all aspects of ART. It is for that reason that this article uses the Model Act to address the various issues raised in the article. The seven factual examples used in the article illustrate the problems created by requests to harvest and use gametes retrieved from dead or incompetent persons and will be discussed in context in this article. Each of these examples is based at least in part on real-life situations that are discussed in court decisions, reported in the general media, or are known personally to the author.
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