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Download PDF Download. Author links open overlay panel Kelton Tremellen a Julian Savulescu b. Under a Creative Commons license. Abstract The prevailing legal position and opinion of professional societies such as the European Society for Human Reproduction and Embryology and the American Society for Reproductive Medicine is that posthumous sperm conception should only occur in the presence of explicit written consent from the deceased man. Background The ability of people younger than 18 generally, the legal definition of a minor to consent to a range of sensitive health care services—including sexual and reproductive health care, mental health services, and alcohol and drug abuse treatment—has expanded dramatically over the past several decades.

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Highlights 27 states and the District of Columbia explicitly allow all individuals to consent to contraceptive services or those at a specified age such as 12 or 14 and older to consent to such care. Prenatal care : 33 states and DC explicitly allow all individuals younger than 18 to consent to prenatal care.

North Dakota allows young people to consent to prenatal care during the first trimester and requires parental consent for most care during the second and third trimesters. Adoption : 28 states and the District of Columbia allow all parents, regardless of age, to choose to place their child for adoption. Medical care for a child : 30 states and the District of Columbia allow all parents, regardless of age, to consent to medical care for their child. Abortion : 2 states and the District of Columbia explicitly allow all individuals to consent to abortion services, regardless of age.

Printer-friendly version For more information Public Policy Office Monthly State Policy Updates Get an overview of state legislative and policy activity in all topics of sexual and reproductive health. Learn More. Get updates on policy issues and more E-mail Address. Donate Now. New Hampshire. New Jersey. Another interesting point is the fact that the woman widow will not have a husband at that time of PAR and therefore could not be regarded as a married woman for the purposes of procreation.

It may follow from this argument that the deceased husband is therefore specifically excluded from describing the paternity of the child. Equally, however, a compassionate view seems the only credible way of creating a birth record for the child, which does not contradict itself, since common sense will dictate that the cryopreserved gametes do exist. If birth occurs after days in those states, or if birth occurs in states without statutes addressing posthumous conception, then current law provides no basis for presuming that the deceased is the legal father Gibbons, We need to grapple with the complex moral issues emerging from the advent of medical techniques which mean that, as a result of cryopreservation procedures, posthumous conception has become a reality.

Any coherent ethical framework in this area must be sensitive to the many interests at stake, which need to be identified. One can easily overlook the interest of the dead, as they might be construed as having no voice. Indeed, this is one of the reasons why any attempted analogy between posthumous conception and organ donation fails. As a society, we recognize that most people find it important to attempt to control certain post-mortem events. Consequently, we have developed procedures that allow us to control certain matters after death, such as the transfer of property, the nomination of beneficiaries, or the transplantation of organs.

Given that it is important to individuals that their wishes be respected after death, it is also important that they have the assurance that their bodies will not be used in a manner inconsistent with their expectations. Even if there is evidence that the deceased desired parenthood in life, it is a considerable leap to assume that he or she would have wished to become a parent posthumously.

Obviously, difficulties could arise in estate distribution after PAR, although no cases appear documented. Policymakers must identify and evaluate important interests, and codify them in a workable policy. In this sense, the UK HFEAct provides exemplary directions as to the need for a written and informed consent prior to any storage and use of gametes or embryos. Contentious areas however remain, such as the non-recognition of a genetic father or inheritance rights.

Conception, Consent and Death

Of all the legal and social complications wrought by modern fertility techniques, perhaps the most significant are those involving embryo ownership and parentage. That is what happened to Jaycee Buzzanca. The infertile couple who arranged for her creation, John and Luanne Buzzanca of Orange County, California, hired a married woman, Pamela Snell, to carry a child to term for them—a child resulting from the use of the sperm and egg of anonymous, unrelated donors Weiss, The situation became complicated when, in March , one month before Jaycee was born, John filed for divorce—an act he claims relieved him of parental responsibilities, including child support.

Since John Buzzanca fits neither definition, he claims he has no fatherly obligations. The surrogate mother did not qualify either, having signed a contract relinquishing her maternal rights after birth. And the egg and sperm donors, who sold their genes with no intention of becoming active parents, remain anonymous. Monarch ruled in September that Jaycee had no legal parents, although she now lives with Luanne. The case is emblematic of the kinds of quandaries arising as novel baby-making techniques emerge.

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In the UK, the gestating mother is the legal mother, and if surrogacy is involved then parental rights have to be applied for by the providers of the genetic material. Matters become even more confusing when the parent is long dead. Julie Garber, a California real-estate developer, was aged 28 when she succumbed to acute lymphoblastic leukaemia Peres, Before embarking on a course of chemotherapy and radiation that would make her infertile, she arranged with a sperm bank to have a dozen of her eggs fertilized and the resulting embryos frozen.

Her hope was to have them implanted in her uterus after her recovery. The Garbers admitted that their daughter left no advance directive on how she wanted her frozen embryos used, but insist they are carrying out her will. The American Society for Reproductive Medicine recommends caution when posthumous reproduction is being considered, although the organization allows that the practice is not inherently wrong when the deceased has left express permission.

Some experts have begun to complain that in the modern conception industry, the rights and privileges of potential parents—even dead ones—are gaining precedence over the welfare of the children. Another report Soules, records the experience of receiving a late-night telephone call from a year-old woman whose year-old sister was brain dead 12 h after a motor vehicle accident. Although the family was willing to donate her organs, it was withholding final consent until the medical staff at another institution could arrange to have her ovaries harvested and her eggs preserved.


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Although written consent was there for use, it did not specifically name the woman who was to be inseminated, since the son was single at that time Fraser, , thereby frustrating attempts to pursue PAR. It is also known for an unrelated person to request a sample, namely a nurse and a social worker, who each said they were acting on behalf of an unidentified third party Cohen, Unfortunately, fertility clinics around the world are littered with a history of lost, damaged or misappropriated sperm, eggs and embryos.


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  • In the most famous case, doctors at a clinic in Irvine, California, implanted dozens of embryos into the wrong women in the early s. That clinic is now closed. A Providence clinic is also defending itself against a suit brought by Vickie and Robert Lamontagne, who alleged that a error led to the disappearance of three of their embryos.

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    Death and conception | Human Reproduction | Oxford Academic

    Doctors first informed Vickie Lamontagne of the loss while she was in hospital and about to have the embryos implanted into her uterus Weiss, In the UK, there is an ongoing case against an embryologist and gynaecologist from a Hampshire clinic in relation to false accounting and misappropriated embryos.

    More recently in the UK, a failure of sperm bank maintenance appears to have compromised the sperm of cancer patients, causing clear distress to their potential loss of fatherhood, as well as to the motherhood of six widows Rogers, All these situations highlight the need for better accountability, record-keeping and auditing, or some other aspect of quality control.

    What is clear is that people given the responsibility of looking after and using frozen gametes and embryos should be of a high calibre. It is clear that we have little real understanding of the motivating factors behind PAR, which will for generations attract interest and curiosity because they lead to a blurring of the very boundaries between life and death.

    This unique topic is riddled with complex and sometimes conflicting legal, ethical and moral issues, which should be carefully—and above all sensitively—taken into account. Whilst it is preferable to have explicit consent, cases around the world are likely to occur where the wishes of the dead and the living will have to be deciphered either through local hospital committees or by courts.

    PAR needs to be approached openly and sensitively, but caution must be exercised in encouraging it. In particular, market forces must not be allowed to decide the outcome. Moreover, it also seems that denying these women may further encourage them to utilize PAR. The situation also calls upon fertility clinics, when dealing with the bereaved, to display transparency, fairness and patience in order to help these individuals—who are in a unique situation—reach an unbiased but informed decision through a series of informed and supportive counselling.

    Finally, consideration for the welfare of the unborn child should be maintained in a balanced, pragmatic and sensible manner. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account.

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    Sign In. Advanced Search. Article Navigation. Close mobile search navigation Article Navigation. Volume Article Contents. Gametes as property. Legal and social status of the child. The donor.