Consent and the Protection of the Deceased’s Interests in Posthumous Reproduction
23 Pages Posted: 25 Feb 2020
Date Written: February 5, 2020
The phenomenon of posthumous reproduction (PR) is challenging traditional notions of family structure, composition and chronology; at the same time, it is posing a novel challenge to the discourse on posthumous harms and interests in terms of the deceased’s reproductive narrative. To some extent, these fundamental challenges are reflected in the jurisprudence on PR as courts around the world are increasingly confronted with disputes regarding the permissibility of PR. Engaging in a comparative case-law analysis I show that the formal requirement for the deceased’s explicit, prior consent (for the retrieval, if necessary, and use of his/her gametes) – the cornerstone of many legal frameworks governing PR – is increasingly disregarded or evaded. This trend compels a deeper inquiry into the role of consent apropos the regulation of PR.
To do so, I explore the underlying philosophical questions vis-à-vis PR. Drawing on the Feinberg-Pitcher account of posthumous harms and interests, I argue that certain interests, including those relevant to PR, can persist after death, e.g. the fate of reproductive material, the treatment of dead bodies. Likewise, frustrating these interests can constitute harm to the ante-mortem person, and the threshold for justifying such harms is high. This argument is complemented by contemporary accounts of autonomy within bioethics that emphasize respect for individuals’ fundamental belief systems – these may encompass interests in the body and its (reproductive) materials after death. I conclude that this position is most accurately reflected in law through demanding formal and explicit prior consent, versus presumed, informal, inferred or no consent frameworks.
Keywords: posthumous reproduction, consent, posthumous interests, posthumous harm
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