Journal of Law and the Biosciences, 329–354

doi:10.1093/jlb/lsy017
Advance Access Publication 7 August 2018
Original Article

Creating life after death: should

posthumous reproduction be legally
permissible without the deceased’s
prior consent?
Shelly Simana∗
Harvard Law School, 1563 Massachusetts Avenue, Cambridge, MA 02138, USA
Corresponding author. E-mail: [email protected]

A B ST R A CT
Scientific advances enable to retrieve and use gametes of a deceased per-
son, thereby creating a child after the death of a genetic parent. This arti-
cle reviews and compares legislation governing posthumous reproduction
in the United States, the United Kingdom, Australia, and Israel. It shows
that each country has its own distinctive features, yet three common ele-
ments exist—legal ambiguity, a requirement for prior consent, and permis-
sion for the partner, but not the parents, to retrieve and use the deceased’s
gametes. The article demonstrates that courts often do not follow the le-
gal requirements, and thus there are no clear guiding principles regarding
posthumous reproduction. The article then discusses three justifications for
permitting posthumous reproduction in the absence of the deceased’s prior
consent. The first justification relates to an interest in ‘genetic continuity’,
which reflects people’s desire in leaving a ‘piece’ of themselves in the world
and maintaining a chain of continuity. The second justification concerns the
‘respect-for-wishes’ model of autonomy, according to which people must be
treated in a way that we assume they would want to be treated. The third jus-
tification touches upon the interests of the deceased’s partner and parents,
as well as of the resulting child.

∗ Shelly Simana is an SJD Candidate at Harvard Law School (HLS). She holds a Master’s degree in Law (LLM)
from HLS, and Bachelor degrees in Law (LLB) and Government (BA) from the Interdisciplinary Center
Herzliya, Israel. Her fields of interest include bioethics, moral philosophy, health law, and family law.

C The Author(s) 2018. Published by Oxford University Press on behalf of Duke University School of

Law, Harvard Law School, Oxford University Press, and Stanford Law School. This is an Open Access ar-
ticle distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs licence
(http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial reproduction and distri-
bution of the work, in any medium, provided the original work is not altered or transformed in any way, and that
the work is properly cited. For commercial re-use, please contact [email protected]
330 r Creating life after death

K E Y W O R D S: Autonomy, Genetic continuity, Grandparenthood, Law,

Posthumous reproduction, Presumed consent

INTRODUCTION
Posthumous reproduction raises a wide range of legal and ethical issues that are among
the ‘most challenging, difficult and sensitive that are likely to be encountered in the
field of medicine, let alone reproductive medicine’.1 These issues include, inter alia, the
ownership of gametes, the inheritance rights and benefits of posthumously conceived
children, and the social construction of families. This article focuses on a simple but im-
portant question: Should posthumous reproduction, in the absence of the deceased’s
prior consent, be legally permitted? This question has become crucial, due to the in-
creasing number of requests on the part of partners2 and parents seeking to retrieve
and use the deceased’s gametes for reproduction.3
The article proceeds as follows: part I explores the ‘practice’ of posthumous repro-
duction in four countries: the United States, the United Kingdom, Australia, and Israel.
These countries were chosen mainly because they have a relatively high number of cases
of posthumous reproduction. In addition, broadly speaking, the four countries belong
to the Judeo-Christian ethical tradition4 ; thus, there is a proper ground of compari-
son between them. This part examines both law and case law governing the practice
of posthumous reproduction and discusses three common elements among the des-
ignated countries—legal ambiguity, a requirement for prior consent, and permission
solely for the partner to retrieve and use the deceased’s gametes.
Part II calls for permissive rules to govern posthumous reproduction and offers
three justifications for permitting it in the absence of the deceased’s consent. The first
justification relates to an interest in ‘genetic continuity’, which reflects people’s desire
in leaving a ‘piece’ of themselves in the world and maintaining a chain of continuity.
The second justification concerns the ‘respect-for-wishes’ model of autonomy, accord-
ing to which people must be treated in a way that we assume they would want to be
treated. One of the greatest preoccupations regarding death relates to minimization of
the hardships experienced by loved ones.5 Hence, if asked whether partners or parents
should have the opportunity to have a child or grandchild with their gametes, should
that person(s) desire it, individuals tend to respond positively. The third justification
touches upon the interests of the deceased’s partner and parents, as well as of the result-
ing child. The article argues that when a relationship generated strong expectations of
procreation, partners may rely on such expectations, and therefore should be entitled
to use the deceased’s gametes. It further claims that the interest of the deceased’s par-
ents in grandparenthood should be legally recognized. Last, the article stresses that as

1 Gulam Bahadur, Death and Conception, 17 HUM. REPROD. 2769, 2769 (2002). See also Gulam Bahadur, Ethical
Challenges in Reproductive Medicine: Posthumous Reproduction, 1266 INT. CONGR . SER . 295 (2004).
2 In the article, the term ‘partner’ is used as an umbrella category for a married and unmarried spouse.
3 Joshua M. Hurwitz et al., Posthumous Sperm Procurement: An Update, 78 FERTIL. STERIL. S242 (2002); RAY D.
MADOFF, IMMORTALITY AND THE LAW: THE RISING POWER OF THE AMERICAN DEAD 44–6 (2010).
4 Robert M. Veatch & Carol G. Mason, Hippocratic vs. Judeo-Christian Medical Ethics: Principles in Conflict, 15
J. RELIG. ETHICS 86 (1987).
5 Rebecca Collins, Posthumous Reproduction and the Presumption Against Consent in Cases of Death Caused by
Sudden Trauma, 30 J. MED. PHILOS. 431, 435 (2005).
 Creating life after death r 331

long as the resulting child has a life worth living, coming into existence per se does no
harm to him or her.

I. THE PR ACTICE OF POSTHUMOUS REPRODUCTION

Regulatory frameworks governing posthumous reproduction vary across countries. On
the one hand, some countries, such as Germany and France, ban posthumous reproduc-
tion.6 On the other hand, certain countries either allow it with some limitations or do
not regulate it at all. This part traces the regulatory frameworks of four such countries:
the United States, the United Kingdom, Australia, and Israel. Although each country
has its own regulatory framework and distinguishing features (eg cultural history and
political values), three recurrent elements could be identified. The first element is legal
ambiguity, namely there are no clear legal principles governing posthumous reproduc-
tion. The second element is a requirement for prior consent on the part of the deceased.
Finally, the third element indicates that permission to retrieve and use the deceased’s ga-
metes is granted only to that person’s partner. Given the limited space available, the anal-
ysis below includes examples of some of the four countries.

A. Legal ambiguity
The practice of posthumous reproduction is characterized by legal ambiguity. First,
none of the designated countries has laws that directly address both the retrieval and the
use of the deceased’s gametes. Second, even if countries do have guidelines on posthu-
mous reproduction, those are not legally binding, and therefore are occasionally not
enforced. Third, judges tend to distinguish between gamete retrieval and gamete use.
The reason for this division pertains to the urgency of the retrieval procedure. The ga-
metes must be retrieved within 36 to 72 hours after death to maximize the likelihood
of successful fertilization,7 meaning that prolonging the related legal proceedings is not
possible in such instances. Therefore, the courts postpone the question of gamete use
for a later date. The distinction between retrieval and use often leads to inconsistent
and unclear outcomes; in some cases, the court might permit the retrieval but prohibit
the use.
For example, in three Australian states—Western Australia, Queensland, and South
Australia—posthumous gamete retrieval is typically governed by the law on organ do-
nation.8 The relevant laws state that the removal of a tissue may be authorized for
‘therapeutic purposes or for medical or scientific purposes’.9 Courts have interpreted
the term ‘tissue’ to include gametes and have thus concluded that gamete retrieval for
6 Kelton Tremellen & Julian Savulescu, A Discussion Supporting Presumed Consent for Posthumous Sperm Pro-
curement and Conception, 30 REPROD. BIOMED. ONLINE 6, 7 (2015); Yael Hashiloni-Dolev, Posthumous Re-
production (PHR) in Israel: Policy Rationales Versus Lay People’s Concerns, a Preliminary Study, 39 CULT. MED.
PSYCHIATRY 634, 636 (2015).
7 Shai Shefi et al., Posthumous Sperm Retrieval: Analysis of Time Interval to Harvest Sperm, 21 HUM. REPROD.
2890, 2892 (2006); Irit Rosenblum, Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical
Perspectives on Assisted Reproductive Technologies in Israel and Internationally, 36 SUFFOLK TRANSNAT’l L. REV.
627, 632 (2013).
8 Benjamin Kroon et al., Post-Mortem Sperm Retrieval in Australasia, 52 AUST. N.Z. J. OBSTET. GYNAECOL. 487,
488 (2012); Nicola Peart, Life Beyond Death: Regulating Posthumous Reproduction in New Zealand, 46 V.U.W.
L. REV. 725, 745–49 (2015).
9 Human Tissue and Transplant Act 1982 (WA) s 22; Transplantation and Anatomy Act 1979 (Qld) s 22; Trans-
plantation and Anatomy Act 1983 (SA) s 21.
332 r Creating life after death

the purposes of reproduction falls into the category of ‘medical purposes’. The laws fur-
ther state that an officer for the hospital must be satisfied that the deceased would not
have objected to the removal.10
In most cases, courts have based their decisions on the fact that the deceased, while
alive, expressed his or her wish to have children. A case that demonstrates the courts’
reasoning is S v The Minister of Health.11 S and her husband were married for 4 years
when he unexpectedly died. Soon after his death, S submitted an application to the
Supreme Court of West Australia for the retrieval and storage of his sperm. The Court
accepted S’s application on the basis of the Human Tissue and Transplant Act 1982.
The decision was based on several factors: the couple was undergoing in vitro fertil-
ization (IVF) treatment; they had an appointment to retrieve S’s eggs and her hus-
band’s sperm; and S was not aware of any objections that her husband made regard-
ing the retrieval and storage of his sperm. The Court indicated, however, that the de-
cision did not concern the use of the retrieved sperm and that S would have to obtain
another order to utilize the sperm. This same approach was adopted in several other
cases.12
As the decisions of the Australian courts make clear, posthumous gamete
retrieval—as compared to posthumous gamete use—is perceived as the less contro-
versial of the two procedures. Since the procedure of the retrieval is urgent, leaving no
time to examine the evidence in depth, courts tend to approve requests for retrieval,
leaving unresolved the question of whether the gamete use should also be permitted.
The judges have upheld the position that if gametes are not retrieved, family members
would be unable to seek relief in the future.
While the three Australian states have quite similar policies regarding gamete re-
trieval, they differ in terms of their regulations on the use of the retrieved gametes. In
Western Australia, for example, such usage is prohibited by Direction 8.9, which is not
legally binding.13 Ironically, courts that permit posthumous gamete retrieval do not re-
fer to this Direction, and thus authorize retrieval with the understanding that the ulti-
mate fertilization of the deceased’s gametes may face legal impediments. In South Aus-
tralia, posthumous reproduction is formally permitted only in circumstances in which
the sperm (the provision does not cover eggs) was retrieved before the person’s death
and in which the deceased consented to the posthumous use of his sperm.14 The law
does not include a provision on cases involving a request to use a sperm that was re-
trieved after a person’s death. In Queensland, no regulations govern the use of retrieved
gametes. Thus, courts have often operated in accordance with the Ethical Guidelines
on the Use of Assisted Reproductive Technology in Clinical Practice and Research,
published by the National Health and Medical Research Council.15 These guidelines do

10 Id.
11 S v. Minister for Health (WA) [2008] WASC 262.
12 See eg Re Floyd [2011] QSC 218; Re H, AE [2012] SASC 146; Ex Parte C v Minister for Health (WA)
[2013] WASC 3; Re Leith Dorene Patteson [2016] QSC 104.
13 Western Australia, Gazette, No. 201, Nov. 30, 2004, 5435.
14 Assisted Reproductive Treatment Act 1988 (SA) s9.
15 Australian Government, National Health and Medical Research Council, Ethical Guidelines on the Use of
Assisted Reproductive Technology in Clinical Practice and Research (2017), https://www.nhmrc.gov.au/
files nhmrc/file/guidelines/ethics/16506 nhmrc - ethical guidelines on the use of assisted
reproductive technology-web.pdf (accessed May 24, 2018).
 Creating life after death r 333

not have legislative force and there are no legal consequences for failing to comply with
them. Section 8.22 requires clearly expressed directions on the part of the deceased,
indicating his or her consent to posthumous gamete use. If the deceased had not left
clearly expressed directions, posthumous use of the gametes may be permitted only if
it is the request of the partner and there should be evidence that the deceased would
have supported the procedure.
Australia’s legal situation is not unique. Likewise, the United States lacks laws that
directly address gamete retrieval and use in cases in which the gametes belong to a
deceased person. It should be noted that the Uniform Probate Code and the Uni-
form Parentage Act, for instance, have some relevance to posthumous reproduction
as they determine the rights and liabilities associated with this practice. The Uniform
Probate Code requires that the deceased’s consent to posthumous reproduction must
be proved, either in writing or via other clear evidence.16 In addition, the resulting child
is treated as in gestation at the time the parent died if that child (i) was in utero no later
than 36 months after the person’s death or (ii) was born no later than 45 months af-
ter the person’s death.17 The Uniform Parentage Act determines that in the absence of
consent, the deceased is not considered as a parent of the resulting child.18 Such laws
may be perceived as an indirect effort to regulate posthumous reproduction; however,
they are only used in instances where the child has already been born and the issues at
stake have primarily revolved around inheritance rights and social security privileges.
In the absence of federal or state laws, decisions regarding posthumous gamete re-
trieval and use are often made at the discretion of medical professionals and private fer-
tility clinics. To that end, hospitals and clinics have introduced various protocols and
guidelines.19 In some cases, which seem to be quite rare, medical professionals demand
a court order.20 Similar to Australia, the Uniform Anatomical Gift Act (UAGA), which
governs organ donation, is used by courts in some instances. The Act indicates that the
term ‘part’ includes ‘organ, eye, or tissue’, and that sperm would be ‘part’ under the Act
because it is a tissue.21 One case that was decided on the basis of the UAGA (as adopted
by the State of Iowa22 ) is In Re Daniel Thomas Christy.23
Daniel Christy suffered severe head trauma in a motorcycle accident. At the time,
he was listed as an organ donor. When it was clear that Daniel was near brain death, his
fiancée and his parents started to consider the possibility of retrieving his sperm. They
asked the hospital to perform the procedure; however, in the absence of a court order,

16 UNIF. PROBATE Code § 2–120 (amended 2010), 8 pt. 1 U.L.A. 130 (2013).
17 Id. at 131.
18 UNIF. PARENTAGE ACT § 707 (amended 2002), 9B U.L.A. 85 (2017).
19 See eg Sarah M. Bahm, Katrina Karkazis & David Magnus, A Content Analysis of Posthumous Sperm Procure-
ment Protocols with Considerations for Developing an Institutional Policy, 100 FERTIL. STERIL. 839 (2013); Amer-
ican Society for Reproductive Medicine, Posthumous Collection and Use of Reproductive Tissue: A Committee
Opinion, 99 FERTIL. STERIL. 1842 (2013).
20 Susan M. Kerr et al., Postmortem Sperm Procurement, 157 J. UROL. 2154, 2154 (1997).
21 UNIF. ANATOMICAL GIFT ACT § 2 (amended 2006), 8A U.L.A. 87–8 (2014). In the two previous versions of
the UAGA, the definition of the term ‘part’ did not specifically mentioned that sperm is perceived as a tissue.
The definition was the following: “‘Part” means an organ, tissue, eye, bone, artery, blood, fluid, or other portion
of a human body.’ See UNIF. ANATOMICAL GIFT ACT § 1 (Unif. Law Comm’n 1968) and UNIF. ANATOMICAL
GIFT ACT § 1 (UNIF. LAW COMM’N 1987).
22 IOWA CODE § 142C.1. et seq. (2018).
23 In re Daniel Thomas Christy, No. EQVO68545 (Johnson Cnty., Sept. 14, 2007).
334 r Creating life after death

the hospital refused to do so. Daniel’s parents submitted a request for an emergency
order. The court accepted that appeal, referring to the UAGA.24 The court held that
under the UAGA, the term ‘anatomical gift’ also includes sperm donation. It argued
that such a donation could be granted by either the donor himself or, if he did not refuse
to make such a donation, his parents.25
Unfortunately, a few of the cases dealing with gamete retrieval and use have been
published. Therefore, it is difficult to understand the reasoning and the legal grounds
that courts have used to authorize gamete retrieval and use. Nonetheless, media reports
suggest that some courts have adopted a lenient approach. In one case, a woman sub-
mitted an application to retrieve her fiancé’s sperm. The judge granted her request, rul-
ing that ‘there is no basis ... not to let them do this ... this is all that is left for them’.26 In
another case, a woman submitted an application to retrieve her husband’s sperm after
he committed suicide. She explained that it was his intent ‘to conceive a child prior to
his untimely death ... [He] expressed his desire to have children so that his legacy may
continue’.27 The judge granted permission for the requested procedure.28

B. The deceased’s prior consent

The second common element among the designated countries is a requirement for
prior consent to posthumous gamete retrieval and use on the part of the deceased. The
issue of consent lies at the center of the debate on posthumous reproduction. The pre-
dominant approach is that retrieving and using the deceased’s gametes when there is no
consent is morally wrong and represents a breach of the paramount ethical principle of
respect for autonomy.29 Without prior consent, it is impossible to know with certainty
what the deceased would have wished.30
Victoria and South Australia, for example, do not have any laws related to posthu-
mous gamete retrieval. Similar to the other Australian states, most of the cases are
decided on the basis of the law governing organ donation. Namely, a hospital rep-
resentative is able to authorize the removal of tissue for medical purposes.31 How-
ever, contrary to the other states, in Victoria and South Australia, the hospital

24 Bethany Spielman, Pushing the Dead into the Next Reproductive Frontier: Post Mortem Gamete Retrieval Under
the Uniform Anatomical Gift Act, 37 J.L. MED. & ETHICS 331, 332 (2009).
25 Id.
26 Dorian Block, Judge Allows Wife to Harvest Dead Husband’s Sperm, DAILY NEWS (Apr. 18, 2009), http://
www.nydailynews.com/new-york/bronx/judge-wife-harvest-dead-husband-sperm-article-1.361746#
ixzz0g0jq4wqR (accessed May 24, 2018).
27 Jose Martinez, After Husband Kills Himself, Wife Goes to Court Saying She Wants His Sperm, DAILY NEWS
(Oct. 15, 2010), http://www.nydailynews.com/new-york/husband-kills-wife-court-sperm-article-1.189691
(accessed May 24, 2018).
28 Id.
29 Robert D. Orr & Mark Siegler, Is Posthumous Semen Retrieval Ethically Permissible?, 28 J. MED. ETHICS 299
(2002); Frances R. Batzer, Joshua M. Hurwitz & Arthur Caplan, Postmortem Parenthood and the Need for a
Protocol with Posthumous Sperm Procurement, 79 FERTIL. STERIL. 1263, 1265 (2003); Frederick Kroon, Presum-
ing Consent in the Ethics of Posthumous Sperm Procurement and Conception, 1 REPROD. BIOMED. SOC. ONLINE
123 (2015); BROWNE LEWIS, THE ETHICAL AND LEGAL CONSEQUENCES OF POSTHUMOUS REPRODUCTION:
ARROGANCE, AVARICE AND ANGUISH 18 (2016).
30 Anne Reichman Schiff, Arising from the Dead: Challenges of Posthumous Procreation, 75 N.C. L. REV. 901, 943
(1997); Carson Strong, Jeffrey R. Gingrich & William H. Kutteh, Ethics of Postmortem Sperm Retrieval After
Death or Persistent Vegetative State, 15 HUM. REPROD. 739 (2000).
31 Human Tissue Act 1982 (Vic) s 26; Human Tissue Act 1983 (NSW) s 23.
 Creating life after death r 335

representative can permit retrieval only when the deceased consented in writing.32 Sim-
ilar policy applies to posthumous gamete use. In South Australia, posthumous gamete
use is only permitted if the deceased consented in writing.33 In Victoria, the law per-
mits posthumous gamete use, as long as (i) the deceased provided written consent; (ii)
the procedure is carried out by the deceased’s partner or, if the deceased is a woman,
her male partner uses a surrogacy arrangement; and (iii) the Patient Review Panel has
approved it.34
Interestingly, in several cases, the Australian courts have granted permission to re-
trieve and use the deceased’s gametes, despite a lack of prior consent as the laws in both
states require. The case of YZ v Infertility Treatment Authority is only one example.35 In
this case, YZ’s husband, XZ, died in a motor vehicle accident in 1998. Immediately after
his death, YZ submitted an application to the Supreme Court of Victoria, asking for a
court order authorizing the retrieval and storage of XZ’s sperm. The Court granted this
order. In 1999, YZ wished to use XZ’s sperm. She applied for approval to export XZ’s
sperm to the Australian Capital Territory, which has no regulation related to posthu-
mous reproduction. According to the law in Victoria,36 gamete exports are not allowed,
although the Infertility Treatment Authority may approve an exemption. However, the
Infertility Treatment Authority refused YZ’s application.37
As a result, YZ commenced proceedings that would come to be known as AB v
Attorney-General of Victoria.38 Specifically, YZ sought a declaration that the law did
not prohibit an intracytoplasmic injection using XZ’s sperm.39 In May 2005, the court
ruled that this procedure was indeed not prohibited. However, it also declared that the
intracytoplasmic injection could not take place in Victoria, due to a lack of consent on
the part of XZ. In June 2005, YZ once again sought permission to export the sperm
to the Australian Capital Territory, but her application was denied.40 Therefore, YZ
asked the Victorian Civil and Administrative Tribunal to review the Infertility Treat-
ment Authority’s decision, and she also requested permission to move her husband’s
sperm to another state to enable its use.41
Seven years after XZ’s death, the Tribunal accepted YZ’s request to use XZ’s sperm
and permitted its export. In his ruling, the judge relied on Section 5 of the Infertility
Treatment Act, which outlines some guiding principles.42 Section 5 reads as follows:

It is Parliament’s intention that the following principles be given effect ... (a) the wel-
fare and interests of any person born or to be born as a result of a treatment procedure

32 Id.
33 Assisted Reproductive Technology Act 2007 (NSW) ss 17 and 23.
34 Assisted Reproductive Treatment Act 2008 (Vic) ss 46 and 85.
35 YZ v Infertility Treatment Authority (Vic) [2005] VCAT 2655. For other cases, see Douglas and Debra Fields
v Attorney General of Victoria (Vic) [2004] VSC 547; Jocelyn Edwards v Attorney General of New South Wales
(NSW) [2011] NSWSC 478.
36 Infertility Treatment Act 1995 (Vic) s 56.
37 YZ v Infertility Treatment Authority, supra note 35, at 3–4.
38 Id. at 4.
39 This is a procedure whereby a sperm is directly injected in order to produce an embryo which can be subse-
quently implanted in a woman’s body.
40 YZ v Infertility Treatment Authority, supra note 35, at 4–5.
41 Id. at 5.
42 Id. at 11–6.
336 r Creating life after death

are paramount; (b) human life should be preserved and protected; (c) the interests of
the family should be considered; (d) infertile couples should be assisted in fulfilling their
desire to have children.43

As regards the welfare and interests of the child, the judge explained that if he per-
mitted the export of XZ’s sperm, and that if YZ bore a child as a result, that child ‘would
be loved and cared for’.44 The fact that the child would be conceived after the death of
a genetic parent and thus would not have a ‘living father’ would be insufficient grounds
to prohibit the export of XZ’s sperm. He concluded that ‘if there is such a thing as a
perfect family, it is a loving, caring family; a family is not a perfect family simply be-
cause it consists of a father, a mother and children. As a society, we must get away from
stereotypes’.45 In term of the interests of the family, the judge asserted that the deci-
sion would bring the family closer together and give it joy and happiness.46 As to the
deceased’s consent, the judge found evidence that XZ had desired to conceive a child
using his own gametes and those of YZ. He emphasized that ‘consent is usually given
by words or by conduct—not by legal instrument ... [the] assessment of whether or
not consent has been given ... will usually require consideration of the circumstances
and will require inferences from the circumstances’.47 Therefore, he found no reason to
prohibit the transfer of XZ’s sperm to another state and concluded:

There is every reason to think that XZ would now want his sperm to be used to produce
children mothered by YZ, if this is the course desired by YZ. Most people who die accept
that they cannot, and should not, seek to rule from the grave. Rather they leave on-going
decisions to the living; especially to the living who they love or respect.48

A similar requirement for prior consent exists in the United Kingdom. The Human
Fertilisation and Embryology Act 1990 states that ‘a person’s gametes must not be used
for the purposes of treatment services unless there is an effective consent by that per-
son’.49 Although the law prohibits gamete use without consent, courts have succeeded
in overcoming this requirement by permitting gametes to be exported outside of the
country.50

43 Infertility Treatment Act, supra note 36, at s 5.

44 YZ v Infertility Treatment Authority, supra note 35, at 15.
45 Id. at 16.
46 Id.
47 Id. at 19.
48 Id. at 20.
49 The Human Fertilisation and Embryology Act 1990, sch. 3.
50 R v. HFEA ex parte Blood [1997] 2 All ER 687; [1997] 2 WLR 806; [1999] Fam 151. In 2013, another case
was reported through the media. In this case, M obtained an emergency ruling to have her husband’s sperm
retrieved while he was in a coma and close to death with a heart condition. There was no consent on the part
of M’s husband. According to the media report, ‘the Human Fertilisation and Embryology Authority did not
oppose her bid,’ and thus she was ‘permitted to take the sperm to another country to begin IVF treatment’.
See Barney Calman, Wife Breaks the Law to Use Dead Husband’s Sperm for Baby... and Health Chiefs Back
Her: British Widow Makes Legal History by Travelling to Europe for IVF, DAILY MAIL (Aug. 10, 2013),
http://www.dailymail.co.uk/news/article-2388938/Wife-breaks-law-use-dead-husbands-sperm-baby–
health-chiefs-British-widow-makes-legal-history-travelling-Europe-IVF.html (accessed May 24, 2018).
 Creating life after death r 337

The issue is best illustrated via a recent case—R v. The Human Fertilisation and Em-
bryology Authority (HFEA).51 While A was in hospital, she underwent treatment for
the retrieval and storage of her eggs. She signed a form that indicated consent to the
retrieval and storage of her eggs, including storage after her death. The form stated that,
‘there is a separate form on which you can say how you want your eggs to be used. Your
eggs can only be used if you have also completed the other form’.52 However, A did not
ask to view or sign this second form.
Six years after she was diagnosed with cancer, A died. Her parents asked the HFEA
for permission to export A’s eggs to the United States. Her parents wished ‘to use A’s
eggs to create an embryo with anonymous donor sperm and to implant the embryo
in ... A’s mother, with a view to any child who may be born being brought up as ...
[their] grandchild’.53 The parents’ request was rejected, and at that point, they applied
an appeal. The High Court held that the decision of the HFEA was lawful and rational,
and it thus dismissed the application. Both the HFEA and the High Court stated that
A never consented in writing to the egg use proposed by her parents.54 Once again, A’s
parents appealed this ruling.
In June 2016, the Court of Appeal ordered the HFEA to reconsider A’s parents’
application to export A’s eggs so that they could be implanted in her mother. It held
that the HFEA’s decision was flawed in light of evidence indicating that A wanted her
mother to carry her child after her death.55 The Court asserted that the HFEA did not
consider which information A had to have before she could consent to the proposed ac-
tions, and it would be unrealistic to assume that A had been unaware that there would
have to be a sperm donor.56 Interestingly, important issues, such as the family connec-
tion between A’s mother and the resulting child, were not considered.

C. Permission for the partner to engage in posthumous reproduction

The third element shared by the designated countries is permission for the partner, but
not the parents, to retrieve and use the deceased’s gametes. The common belief is that
parents have no protected interests toward their children’s reproduction decisions and
that such choices should rather be made by the potential parents themselves.57 This re-
quirement is enshrined, for instance, in the committee opinion published by the Amer-
ican Society for Reproductive Medicine. According to the committee opinion, the de-
sires of the parents do not give them ‘any ethical claim to their child’s gametes’.58 Israel
has embraced a similar approach. According to the guidelines issued by the Attorney
51 R (on the application of M) v. Fertilisation and Embryology Authority [2016] EWCA Civ 611.
52 Id. at 3.
53 Id. at 1.
54 Id. at 8.
55 According to A’s parents, when it became clear to A that she was terminally ill, she told her mother the fol-
lowing: ‘They are never going to let me leave this hospital, Mum; the only way I will get out of here will be in
a body bag. I want you to carry my babies. I didn’t go through the IVF to save my eggs for nothing. I want you
and Dad to bring them up. They will be safe with you. I couldn’t have wanted for better parents, I couldn’t have
done without you.’ Id. at 4 (emphasis added).
56 Id. at 12–6.
57 Katheryn D. Katz, Parenthood from the Grave: Protocols for Retrieving and Utilizing Gametes from the Dead or
Dying, 2006 U. CHI. LEGAL F. 289, 296 (2006); Guido Pennings et al., ESHRE Task Force on Ethics and Law
11: Posthumous Assisted Reproduction, 21 HUM. REPROD. 3050 (2006).
58 American Society for Reproductive Medicine, supra note 19, at 1844.
338 r Creating life after death

General, which are not legally binding, the deceased’s female partner is the sole individ-
ual authorized to use the sperm (the guidelines do not refer to eggs) and the deceased’s
parents are precluded from the posthumous use of their son’s gametes.59
Despite limitations restricting posthumous reproduction to the deceased’s partner,
in some cases, courts were willing to grant parents a permission to retrieve and use the
deceased’s gametes. It should be noted that most cases concern sperm retrieval and use.
It is beyond the scope of this article to address the reasons for the lack of requests for
egg retrieval and use, but suffice is to say that according to one explanation, it is med-
ically complex to retrieve and use eggs of a deceased woman.60 Another intriguing ex-
planation relates to cultural perceptions of differences between men and women when
it comes to procreation and parenting.61
One case in the United States is of Nikolas Evans, who was killed unexpectedly.
His mother, Marissa, applied for an emergency court order to authorize the retrieval of
Nikolas’s sperm and its subsequent use for reproduction. She argued that she had en-
gaged in many conversations with her son about his desire to have children. The judge
approved her request.62
Another case is of Omri Shahar in Israel.63 In June 2012, Omri, a young soldier, was
killed in a car accident. At his death, Omri’s parents, Asher and Irit, petitioned Israel’s
Family Court for posthumous sperm retrieval. The request was approved yet, 1 year
later, they submitted an additional request, this time—to use the sperm to fertilize a
donated egg, implant the embryo in a gestational carrier, and raise the child. In an un-
precedented decision, the Court approved the request,64 holding that Omri wished
to have children, and that in case of his death, he wanted his parents to raise those

59 Ministry of Justice Guidelines of the Attorney General of the Government, No. 1.2202, Oct. 27, 2003. Israel
has a lenient approach toward posthumous reproduction. The core assumptions, enshrined in the Jewish tra-
dition underlying the Israeli approach, are that most individuals desire to leave offspring to ensure their legacy.
The guidelines refer to the biblical commandment to ‘be fruitful and multiply’, as well as to the biblical practice
of levirate marriage (ie the deceased’s brother is obliged to marry the deceased’s wife and the first child born
from such a union should carry the deceased’s name and be his heir). See Ruth Landau, Posthumous Sperm
Retrieval for the Purpose of Later Insemination or IVF in Israel: An Ethical and Psychosocial Critique, 19 HUM.
REPROD. 1952, 1954 (2004); Hashiloni-Dolev, supra note 6, at 636.
60 Katz, supra note 57, at 307.
61 Yael Hashiloni-Dolev & Silke Schicktanz, A Cross-Cultural Analysis of Posthumous Reproduction: The Signifi-
cance of the Gender and Margins-of-Life Perspectives, 4 REPROD. BIOMED. SOC. ONLINE 21 (2017) (‘there is the
common belief that mothers make better parents, which leads to more positive public attitudes towards PHR
when the surviving partner is a woman ... This is related to the widely shared stereotype presenting men’s
parental interests as minimal, only instrumental or financial in contrast to those of women.’ Id. at 27). See
also Yael Hashiloni-Dolev & Zvi Triger, Between the Deceased’s Wish and the Wishes of His Surviving Relatives:
Posthumous Children, Patriarchy, Pronatalism, and the Myth of Continuity of the Seed, 39 TEL. AVIV. UNIV. L.
REV. 661, 671–76 (2016) [in Hebrew]; Zvi Triger, One’s Death is Another’s Life: Posthumous Reproduction
and the Jewish-Israeli Ideology of Parenting, 49 THEORY & CRITICISM 67, 78–80 (2017) [in Hebrew].
62 Browne C. Lewis, Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously, 60
CASE W. RES. L. REV. 1159, 1177 (2010).
63 For other cases, see Rosenblum, supra note 7, at 633; Harriet Sherwood, Israeli Family Can Freeze Eggs
of Daughter Killed in Road Accident, GUARDIAN (Aug. 8, 2011), https://www.theguardian.com/world/
2011/aug/08/israeli-family-can-freeze-eggs-daughter (accessed May 24, 2018); File No. 12977–01–14
Family Court (Kiryat Shmona), Anonymous v. State of Israel (Jan. 6, 2015), Nevo Legal Database (by sub-
scription, in Hebrew).
64 File No. 16699–06–13 Family Court (Petah Tikva) 16699–06–13, Shahar v. Attorney General of Israel (Sept.
27, 2016), Nevo Legal Database (by subscription, in Hebrew).
 Creating life after death r 339

children.65 The Court was convinced that Omri and his parents had enjoyed a close re-
lationship. Moreover, it viewed Omri’s parents as the dominant figures in his life; they
had taken an active role in shaping Omri’s plans and knew his ambitions. The Court
concluded:

If Omri was standing in front of us, there is no doubt that he would have expressed a
definitive will that, under these circumstances, his parents should fertilize a donated egg
with his sperm and raise the child on their own.66

The Court then turned to two associated issues—the interests of the resulting child
and the ability of Omri’s parents to raise the child. It rejected the claim that the child
would be subject to ‘planned orphanhood’, or would be ‘a living monument’.67 Instead,
it affirmed that Omri’s parents would have an excellent parental capacity to raise the
child.68 The Court was persuaded that the child would grow up to be ‘a loved and
wanted child, and thus the child’s best interests are guaranteed, even before she is
born’.69 It maintained that the child would benefit more from being raised by Omri’s
parents then from being raised by a designated woman who had not been known
to Omri. In the modern world, the Court argued, individuals desire continuity after
death, and they fulfill that aspiration either by leaving offspring with their life partner or
through diverse alternatives to the traditional family.70 The Court acknowledged that in
today’s world young parents are under substantial pressures, and so grandparents have
increasingly become involved in raising their grandchildren. Thus, grandparents often
act as de facto ‘parents’.71 In such circumstances, the government should not unequiv-
ocally preclude the deceased’s parents from posthumously using their son’s sperm.72
The Court went even further, concluding that the parents’ interest in witnessing their
son’s continuity should be recognized.73 Their interests, according to the Court, are not
inferior to those of a partner. The Court claimed that the deceased’s parents should be
recognized as the legal parents of the child by virtue of the genetic connection between
them, noting that ‘the child would carry the same genes’ and that ‘they are the biological
parents of the child’s biological father’.74
The reactions to this groundbreaking decision were not long in coming. First, the
state appealed, and in January 2017, the District Court overruled the Family Court’s de-
cision.75 The Court specifically focused on the fact that the request was unprecedented
and unusual because Omri’s parents desired to raise the child. The Court asserted that
according to the Attorney General’s guidelines, ‘the presumption is that a deceased per-
son would have agreed to posthumous reproduction only if the request is made by his
65 Id. at 13.
66 Id. at 15 (my translation).
67 Id. at 22.
68 Id. at 18.
69 Id. (my translation).
70 Id. at 12.
71 Id. at 21.
72 Id. at 24.
73 Id.
74 Id. at 31 (my translation).
75 File No. 45930–11–16 District Court (Central District), State of Israel v. Shahar (Jan. 29, 2017), Nevo Legal
Database (by subscription, in Hebrew).
340 r Creating life after death

partner’.76 Since Omri’s girlfriend did not wish to be impregnated with his sperm, the
use of that sperm should be prohibited.77 The Court also explained that, ‘there is not
enough evidence showing that Omri wished the child will be born to a world in which
no genetic parent is present in the child’s life’.78 Moreover, it specified that permitting
agreements that are flexible in terms of genetic relatedness (namely, permitting parents
to use the gametes based on the genetic affinity they share with their deceased child and
grandchild) would be against the public interest.79 Last, the Court maintained that ap-
proving the parents’ request would be against the child’s best interests as the child has
a right to be born to a ‘full family’, which consists of two genetic parents.80
Second, in December 2016, in another case, the Supreme Court overruled a decision
of the District Court, which authorized the deceased’s parents to use their son’s sperm,
despite opposition from that son’s widow.81 It was the widow who brought this ap-
peal. The Supreme Court rejected the parents’ application to use the deceased’s sperm,
and particularly the claim that they had a protected interest in grandparenthood.82 The
Court explained that the right to grandparenthood is not recognized under Israeli law
when the grandchild’s parents are alive and legally competent.83 In addition, even when
grandparents’ rights are recognized, they only extend to grandchildren who have al-
ready been born. Parents, the Court ruled, do not have the right to demand the birth
of their grandchildren.84 It determined that with the exception of unique cases, the de-
ceased’s parents should not have standing in terms of clarifying their son’s wishes if that
son had a life partner.85 The Court, however, left unresolved the question of whether
parents should also be prohibited from using their child’s gametes in instances in which
the deceased had been single.86 That having been said, a minority opinion by Justice
Hanan Melcer maintained that the parents should be allowed to use their son’s sperm
based on the deceased’s right to continuity.87 Justice Melcer asserted that the evidence
makes clear that the deceased wanted to have continuity through reproduction and
leave a mark in this world.88 The Court thus, so he argued, must protect the deceased’s
interest.89
A grim picture emerges from the comparative analysis regarding the practice of
posthumous reproduction. Perhaps the most worrying aspect is that posthumous re-
production is ‘governed’ by a complete ambiguity; there are no direct laws on posthu-
mous gamete retrieval and use, and these procedures are performed according to laws

76 Id. at 30 (my translation).

77 Id. at 37–8. Although Omri’s girlfriend did not wish to be impregnated with Omri’s sperm, she supported his
parents’ request.
78 Id. at 36 (my translation).
79 Id. at 50.
80 Id. at 52–4.
81 File No. 7141/15 Supreme Court (Jerusalem), Anonymous v. Anonymous (Dec. 22, 2016), Nevo Legal
Database (by subscription, in Hebrew).
82 Id. at 17–20.
83 Id. at 18.
84 Id.
85 Id. at 25.
86 Id. at 30–2.
87 Id. at 36–62.
88 Id. at 47.
89 Id. at 41–3.
 Creating life after death r 341

concerning other issues or guidelines that are not legally binding. Posthumous repro-
duction should not be enveloped in a legal ambiguity, and countries should make efforts
to regulate the practice and create certainty. In addition, the countries require prior con-
sent on the part of the deceased. Adopting a requirement mandating prior consent ulti-
mately means that the deceased’s desires might be denied as in most cases clear indica-
tions regarding the deceased’s desires after his or her death are lacking. Thus, countries
should adopt a legal regime that is based on presumed consent (rather than refusal) as it
produces outcomes that are more likely to resemble the deceased’s interests. Moreover,
the practice of posthumous reproduction is governed by traditional means of thinking
about the family as the only one who is permitted to request posthumous reproduction
is the deceased’s partner. The presumption that a person with a partner would want
only that person to retrieve and use his or her gametes after death is not consistent with
contemporary changes to the structure of the family unit. Also, preserving the institu-
tion of parenthood ‘the way that we know it’ is not the only way to meet the needs and
the interests of the resulting child.

II. WHY SHOULD POSTHUMOUS REPRODUCTION BE

LEG ALLY PER MITTED?
After identifying common elements among some existing legal frameworks and dis-
cussing their flaws, this part advocates for a more permissive approach toward posthu-
mous reproduction and provides three justifications for permitting it in the absence of
the deceased’s prior consent.

A. The Interest in genetic continuity

The first justification concerns the interest in ‘genetic continuity’, which is about in-
dividuals’ desire (men and women alike) to leave a ‘piece’ of themselves in the world
and maintain a chain of continuity.90 It should be clarified that one’s interest in genetic
continuity differs from one’s interest in procreation. The latter is related to the subject
matter of procreation—the child—and grounded in individuals’ strong desire to create
and give birth to a child, while the former is about perpetuating one’s genes to future
generations.
Once a person ceases to exist, his or her ‘life story’ does not continue indepen-
dently.91 Rather, it endures via the ‘life stories’ of others—primarily the deceased’s
loved ones. One way that a person’s ‘life story’ continues is through the fulfillment of
one’s will, which indicates the individual’s wishes regarding financial assets or values.92

90 There are three main approaches to attributing interests to deceased individuals: (i) one that recognizes that
the deceased can hold interests; (ii) one that objects to the possibility that the deceased might have interests;
and (iii) one that distinguishes between ante-mortem (before-death) and post-mortem (after-death) persons
and holds that only an ante-mortem person can hold interests. Recognizing the interests of the ante-mortem
person means protecting his or her interests regarding events that might occur after that person’s death. For
the different approaches, see Joel Feinberg, The Rights of Animals and Unborn Generations, in RIGHTS, JUSTICE
AND THE BOUNDS OF LIBERTY: ESSAYS IN SOCIAL PHILOSOPHY 159 (1980); Joan C. Callahan, On Harming the
Dead, 97 ETHICS 341 (1987); Matthew H. Kramer, Do Animals and Dead People Have Legal Rights?, 14 CAN.
J. L. & JURIS. 29 (2001).
91 Asa Kasher, Life in the Hearts, 8 J. LOSS TRAUMA 247, 248 (2003).
92 Id. at 253.
342 r Creating life after death

Another way that a person’s ‘life story’ continues is through his or her name.93 After
death, a person’s first name is written on his or her tombstone. Also, in many cultures,
other individuals are named after the deceased. With respect to surname in particular,
it endures through offspring. Connectedness demonstrated through a shared surname
is a symbol to which social meanings are attributed,94 and ‘the common usage of sur-
names to indicate lineage is a modern cultural practice’.95 Posthumous reproduction
is, therefore, another, more contemporary method for realizing one’s interest in conti-
nuity. It enables individuals to create a genetic connection with future generations by
making it possible for a genetically related offspring to carry the deceased’s genetic ma-
terial.
Yet, some clarifications are required. First, not all people have an interest in genetic
continuity. Some, for example, may object on religious grounds. Posthumous reproduc-
tion should therefore be prohibited if the deceased overtly objected to this possibility or
when strong indications exist that the person would not have consented to performing
such a procedure. Second, the interest in genetic continuity must be balanced against
those of the partner and other family members. To prevent a situation in which the de-
ceased ‘controls’ the lives of living individuals contrary to their wishes, the law must
stipulate that the duty to protect the deceased’s interest should be fulfilled only when
the act is also in the interest of living individuals.
Three core reasons can be found for the propositions that people are interested in
genetic continuity and that such an interest is particularly valuable. One reason relates
to autonomy, often understood as one’s capacity to live his or her life according to ob-
jectives that he or she endorses.96 This principle holds that an individual has the liberty
to make choices and develop a life plan based on his or her own values and conceptions
of good life. And if certain activities grant access to ‘goods’, such as genetic continuity,
those activities should be respected. Of course, one does not have a liberty to realize
any good; however, liberties that protect one’s capacity to pursue his or her plans using
the goods he or she is justly entitled to should be protected.97 Indeed, having access
to opportunities for choice in matters of reproduction holds an instrumental value for
securing necessary conditions of human well-being.98
A second reason pertains to self-extension. People know that their lives are finite
and that sooner or later they will confront the reality of their own mortality. However,
through genetic continuity people can ‘extend’ themselves into the future and ‘over-
come’ mortality. Self-extension is valuable since ‘if we had to confine our plans to the
span of our own life, this would greatly impoverish our opportunities to pursue plans
that are meaningful’.99 The fear of dying could be one reason for this, and ‘knowing that
93 Id. at 251.
94 Kathryn Almack, What’s in a Name? The Significance of the Choice of Surnames Given to Children Born Within
Lesbian-Parent Families, 8 SEXUALITIES 239 (2005).
95 Hayley Davies, Sharing Surnames: Children, Family and Kinship, 45 SOCIOLOGY 554, 555 (2011).
96 Tim Meijers, Justice in Procreation: Five Essays on Population Size, Parenthood and New Arrivals 130 (Dec.
2016) (unpublished Ph.D. thesis, Université Catholique de Louvain) (on file with author).
97 Id. at 135.
98 Marshall Missner, Why Have Children?, 3 INT’l J. APPL. PHILOS. 1 (1987); Saul Smilansky, Is There a Moral
Obligation to Have Children?, 12 J. APPL. PHILOS. 41 (1995).
99 Meijers, supra note 96, at 153.
 Creating life after death r 343

we do not disappear completely after we die ... allows for some reconciliation with the
prospect of death’.100 Using the deceased’s gametes is a tangible way for people to leave
‘pieces’ of themselves ‘alive’ in the world.
A third reason concerns personal identity. Existing philosophical literature distin-
guishes between two main identities—physiological and psychological.101 Physiologi-
cal identity focuses on biological organisms and views continuity as bodily or somatic
characteristics (height, features, or skin color). Psychological identity concerns imma-
terial minds (beliefs, desires, or memories) and views continuity as evolving out of our
psychological traits. Genetic identity may offer a third approach to understand personal
identity and human continuity. It contains elements of both approaches as genes af-
fect both physical and psychological traits.102 While genetic continuity is not a nec-
essary component of parenthood, it is about passing on one’s genes as a liberal ex-
pression of personal identity and a communitarian expression of family heritage. In-
dividuals interested in perpetuating their genes view genes as a significant element
of who they are; this idea leads them to wanting to project their genes into the fu-
ture. It is a basic desire to want other individuals to take on certain of our features,
such as values and genetic material. This assumption is warranted by the fact that so-
ciety is becoming increasingly aware of what genes can reveal about people’s identi-
ties. With the beginning of the Human Genome Project, the public has known that
through their genes, parents may be able to pass on features of their identity, such as
temperament and personality traits. Moreover, through transmission of their DNA, in-
dividuals can maintain biological continuity with immediate family members and even
generations.103 In addition, by passing on their genes, people transmit their genetic her-
itage as members of nations and communities.104 By using the deceased’s gametes, oth-
ers are able to inherit the deceased’s DNA, thus fulfilling his or her interest in genetic
continuity.105
The assumption that individuals are interested in genetic continuity is also based
upon various testimonies of people who, prior to their deaths, revealed their interest
in continuity via posthumous reproduction. Although those testimonies are only anec-
dotal evidence, they may still provide some indication of people’s interest in genetic

100 Id.
101 See eg DAVID HUME, TREATISE OF HUMAN NATURE 251–63 (1896); DEREK PARFIT, REASONS AND PERSONS
204–09 (1984); THOMAS NAGEL, THE VIEW FROM NOWHERE 40 (1986); ERIC T. OLSON, THE HUMAN
ANIMAL: PERSONAL IDENTITY WITHOUT PSYCHOLOGY 22–3 (1997); DAVID DEGRAZIA, HUMAN IDENTITY AND
BIOETHICS 13–9, 82–6 (2005).
102 Florina Uzefovsky, Anna Doering & Ariel Knafo-Noam, Values in Middle Childhood: Social and Genetic Con-
tributions, 25 SOC. DEV. 482 (2016); HENRY T. GREELY, THE END OF SEX AND THE FUTURE OF HUMAN
REPRODUCTION 114–19 (2016).
103 A recent research reveals that contemporary East Asians are genetically related to the ancient hunter gatherers
who lived in the same region 8000 years ago. See Veronika Siska et al., Genome-Wide Data from Two Early
Neolithic East Asian Individuals Dating to 7700 Years Ago, 3 SCI. ADV. e1601877 (2017).
104 Ewen Callaway, UK Mapped Out by Genetic Ancestry: Finest-Scale DNA Survey of Any Country Re-
veals Historical Migrations, NATURE (Mar. 18, 2015), http://www.nature.com/news/uk-mapped-out-by-
genetic-ancestry-1.17136 (accessed May 24, 2018). See also Pilar N. Ossorio, Myth and Mystification: The
Science of Race and IQ, in RACE AND THE GENETIC REVOLUTION: SCIENCE, MYTH, AND CULTURE 174–90 (Shel-
don Krimsky & Kathleen Sloan eds., 2011).
105 Collins, supra note 5, at 434–36.
344 r Creating life after death

continuity. Irit Rosenblum, the director of the New Family Organization in Israel,106
has described such testimonies in detail.107 One case concerned a young man who
wanted his sperm to be used to create children. He said to Irit:

Now I can die peacefully, knowing that life is not embodied only in the body. Life has
energy and that energy has a mission. The energy is concealed in every person who delivers
the energy of life. Please help me to pass it on.108

In another case, a young girl who froze her eggs before starting chemotherapy treat-
ment said: ‘Do not say that it is going to be ok, because it is not. I have made a great effort
and suffered in order to leave eggs. Please use them. The most important thing for me
is that my life will be continued.’109 These are only two examples. Since the technology
is relatively new and the majority of the population is not fully aware of the availability
of posthumous gamete retrieval and use, the question as to whether there is a human
interest in genetic continuity through such procedures is new. This question certainly
deserves further empirical investigation in order to gain a better understanding of what
individuals want to happen after their death.
A possible counterargument to the assumption that people are interested in genetic
continuity could be that if the person truly cared about genetic continuity, he or she
would have so stated. Yet, this claim raises some difficulties. First, such assertion ignores
the fact that the majority of the population is not aware of the possibility of posthu-
mous gamete retrieval and use. If the general public was properly informed regarding
the availability of these procedures, it is likely that the interested individuals would start
taking measures to realize their wishes. Second, some individuals may ideologically ob-
ject to writing down their beliefs and desires. Therefore, even if aware that posthumous
reproduction is available to them, those individuals may choose not to explicitly ex-
press their wishes. Care should be taken when assuming that a person had no interest
in posthumous reproduction just because he or she remained silent on the issue. One’s
interests are deeply personal, and conversations about post-death events are often con-
sidered to be upsetting. It follows that many reasons exist to explain why such matters
may not be explicitly expressed or discussed before death.
It should be emphasized that the desire for genetic continuity is expressed in other
forms except posthumous reproduction. For example, in 2016, for the first time, a cou-
ple in Mexico used a technique that mixes DNA from three people to produce a child.
The ‘three-parent technique’, used to prevent the transfer of mitochondrial disorders,
106 The New Family Organization is an association that provides legal advice and assistance services in var-
ious issues, including civil marriage, biological will, and surrogacy. In 2001, Irit Rosenblum proposed
the establishment of a sperm bank for soldiers. Such a bank would offer soldiers a chance to store
sperm for the use in an event of their death or loss of reproductive ability. She also initiated the idea
of Biological Will. This initiative enables any person to draft a Biological Will specifying the intended
use of their gametes. See Irit Rosenblum, Respect the Dead by Creating New Life, HAARETZ (Apr. 23,
2012), https://www.haaretz.com/opinion/respect-the-dead-by-creating-new-life-1.426003 (accessed May
24, 2018). It should be noted that feminists and human rights activists in Israel consider the New Family Orga-
nization’s agenda as controversial. Its activity, so it is argued, is driven by commercial interests. See Hashiloni-
Dolev & Triger, supra note 61, at 668–69.
107 IRIT ROSENBLUM, GARDEN OF GOD (2016) [in Hebrew].
108 Id. at 66 (my translation).
109 Id. at 70 (my translation).
 Creating life after death r 345

allowed the couple to have a child who is the genetic progeny of both partners. The
couple chose this controversial method, rather than adoption or egg donation, precisely
because they wanted a child bearing their genes.110 In addition, the use of IVF by people
who cannot conceive naturally yet wish to have a genetic connection111 is increasing112
and people seek ‘genetic similarity’ with gamete donors.113
To conclude, similar to other medical advances and new technologies, posthumous
reproduction ‘has applications that evoke a reaction, which in turn calls forth the need
for the expression of a new right or an expansion of an already established right’.114 The
interest in (and, possibly, the right to) genetic continuity is expected to become an im-
portant topic that may impact on individual identity and well-being but also on society
at large. At present, public awareness of the availability of posthumous reproduction
remains limited; hence, the questions involved are new. Extensive, in-depth research is
therefore needed on the theoretical and empirical levels in order to gain a better under-
standing of what individuals want to happen to their genes after their death, the scope
of such desires throughout the population, their repercussions, and how the law should
respond to the subsequent dilemmas.

B. The ‘respect-for-wishes’ model of autonomy

The second justification for permitting posthumous reproduction without prior con-
sent pertains to the ‘respect-for-wishes’ model of autonomy, which holds that after
death, we ought to treat people how they most likely would have wanted to be treated.
Using this model, it can be assumed that the deceased had an interest in fulfilling the
wishes of his or her loved ones. Hence, if partner or parents wish to retrieve and use
gametes, the deceased would have agreed.
Michael B. Gill has described two different conceptualizations of the respect for au-
tonomy115 : (i) the ‘non-interference’ model, according to which it is wrong to interfere
with a person’s body without his or her prior consent, and (ii) the ‘respect-for-wishes’
model, which holds that we ought to treat a person how he or she would most likely
want to be treated.116 Gill has explained that it would not be reasonable to use the ‘non-
interference’ model of autonomy, since it implies that nothing should be done to a per-
son’s body in the absence of specific instructions.117 Further, the ‘respect-for-wishes’
model allows for the fulfillment of ‘a person’s wishes when she is no longer capable of
fulfilling them herself’.118
110 Rachel Feltman, First-Ever Baby Born Using ‘Three Parent’ Genetic Engineering Technique, WASHINGTON POST
(Sept. 27, 2016), https://www.washingtonpost.com/news/speaking-of-science/wp/2016/09/27/first-
ever-baby-born-using-three-parent-genetic-engineering/?noredirect=on&utm term=.f76eea52496c (ac-
cessed May 24, 2018). In January 2017, a second ‘three-parent baby’ was born in the Ukraine—this time, not
to evade a genetic disorder, but to remedy infertility. See G. Owen Schaefer & Markus K. Labude, Genetic
Affinity and the Right to ‘Three-Parent IVF,’ 34 J. ASSIST. REPROD. GENET. 1577, 1577 (2017).
111 Fred Norton, Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages, 74
N.Y.U. L. REV. 793, 796–810 (1999).
112 Esme I. Kamphuis et al., Are We Overusing IVF?, 348 BMJ g252 (2014).
113 Caroline Jones, Looking Like a Family: Negotiating Bio-Genetic Continuity in British Lesbian Families Using Li-
censed Donor Insemination, 8 SEXUALITIES 221, 226 (2005).
114 Joseph F. Coates, Science, Technology, and Human Rights, 40 TECHNOL. FORECAST. SOC. CHANGE 389, 389–90
(1991).
115 Michael B. Gill, Presumed Consent, Autonomy, and Organ Donation, 29 J. MED. PHILOS. 37 (2004).
116 Id. at 44.
117 Id. at 44–5.
118 Id. at 48.
346 r Creating life after death

The ‘respect-for-wishes’ model should apply to posthumous reproduction. If a per-

son dies without leaving any indication of his or her wishes, and there is no reason to
believe he or she objected to posthumous reproduction, it should be presumed that
the deceased would have preferred for his or her gametes to be retrieved and used by
a partner or parents.119 Through the ‘respect-for-wishes’ model, a ‘majoritarian default
rule’ is being adopted; the decision whether to retrieve and use the deceased’s gametes
is determined based on what the majority of the parties would have done had they ex-
plicitly addressed the issue.120 Such a position acknowledges that most people would
most probably consent to posthumous reproduction following their partner’s interest
in procreating and becoming a parent and their parents’ interest in grandparenthood
and the continuity of the family’s genetic heritage (see Section C).
Those against implementing the ‘respect-for-wishes’ model of autonomy may claim
that ‘mistaken’ retrieval violates the right to bodily integrity.121 From their perspective,
when gametes are retrieved from the body of a person who was opposed to such a pro-
cedure, the body is invaded against that individual’s wishes, thus violating his or her au-
tonomy.122 ‘Mistaken’ non-retrieval, in contrast, merely fails to help bring about a state
of affairs that the deceased perhaps desired. And, ‘while it is unfortunate if we fail to
help a person’ to achieve his or her life goals, it ‘pales in comparison with a violation of
a person’s right to decide whether an invasive procedure’ should be performed on his
or her body.123
While retrieving gametes from individuals who did not wish for them to be re-
trieved and used is unfortunate, one may argue that such a situation is morally no worse
than not retrieving gametes from people who did wish for them to be retrieved and
used—both ‘mistakes’ may fail to fulfill a person’s wishes about what should happen
after his or her death.124 This approach attempts to develop a ‘fewer mistakes’ argument
based on a moral concern with minimizing harm.125 Indeed, applying the ‘respect-for-
wishes’ model to posthumous reproduction is likely to result in the minimum number
of ‘mistakes’ as several empirical studies have indicated that individuals would support
the retrieval and use of their gametes if that was the desire of their loved ones. Acting
on the presumption that individuals would desire for their partner or parents to retrieve
and use their gametes would be more likely to respect their actual wishes.
The first empirical study on attitudes toward posthumous reproduction in the
United States was published in 2008 by Jason Hans.126 For three scenarios, participants
were asked to indicate ‘whether the surviving partner should or should not be allowed
119 Kelton Tremellena & Julian Savulescu, Posthumous Conception by Presumed Consent: A Pragmatic Position for
a Rare but Ethically Challenging Dilemma, 3 REPROD. BIOMED. ONLINE 26 (2016).
120 Russell B. Korobkin, ‘No Compensation’ or ‘Pro Compensation’: Moore v. Regents and Default Rules for Human
Tissue Donations, 40 J. HEALTH L. 1, 9 (2007). See also David Charny, Hypothetical Bargains: The Normative
Structure of Contract Interpretation, 89 MICH. L. REV. 1815, 1820–823 (1991); Ian Ayres, Preliminary Thoughts
on Optimal Tailoring of Contractual Rules, 3 S. CAL. INTERDISC. L.J. 1, 5 (1993).
121 Gill, supra note 115, at 43.
122 Id.
123 Id.
124 Id. at 38.
125 Id. at 41–2.
126 Jason D. Hans, Attitudes Toward Posthumous Harvesting and Reproduction, 32 DEATH STUD. 837 (2008). Re-
spondents were contacted using a modified, list-assisted random-digit dialing method. The procedure resulted
in 407 completed interviews.
 Creating life after death r 347

to have the reproductive material preserved’.127 In the first segment, the cases that were
presented revolved around a couple who had been either married or cohabiting for 1 or
7 years.128 In the second segment, new information was added. This material touched
upon whether the couple had a child and whether they had planned to have one.129 In
the third segment, further information revealed whether the couple had ever discussed
having children and whether the deceased’s parents were supportive.130
For the first segment, 45% of the participants responded that the partner should be
able to have the deceased’s reproductive material preserved. A participant’s likelihood
of indicating that retrieval should be allowed declined by 56% when the surviving part-
ner was a male. Participants presented with a married couple were more than twice as
likely to say that the procedure should be allowed.131 Moreover, 41.6% of the partic-
ipants agreed that the procedure should be allowed in the scenarios presented in the
second segment. Concerning the final portion of the survey, 60.1% of the participants
stated that posthumous retrieval should be allowed. The study revealed, as Hans has
put it, ‘generally positive attitudes toward posthumous harvesting’,132 with the results
suggesting that supportiveness was a significant predictor of responses.
In later studies, Hans continued to further investigate the issue. One such analysis
revealed even greater support for posthumous reproduction than what the 2008 study
demonstrated.133 Remarkably, 64% of males and 55% of females responded that ‘they
would want a surviving spouse to be able to reproduce using their gametes if the spouse
wished to do so following an untimely death ... an additional 5% of males and 8% of
females were undecided’.134 More specifically, among respondents of reproduce age
(18–44 years) the support was higher; 70% of males and 58% of females responded
that they would want a partner to be able to reproduce using their gametes in case of an
unexpected death.135 Hans concluded that:

Abandoning the prevailing presumption of non-consent in favor of a presumption of con-

sent ... will result in the deceased’s wishes being honored three times more often for males
and two times more often for females ... the evidence is clear: In the event of an early
death, the majority of reproductive-aged Americans would want their gametes to be re-
trieved posthumously to produce a child if that is the wish of their surviving spouse.136

Another study performed by Hans and Brigitte Dooley asked whether a partner
should or should not be able to use the deceased’s frozen gametes.137 About half of
127 Id. at 850.
128 Id. at 849.
129 Id. at 850.
130 Id.
131 Id. at 852.
132 Id. at 867.
133 Jason D. Hans, Posthumous Gamete Retrieval and Reproduction: Would the Deceased Spouse Consent?, 119 SOC.
SCI. & MED. 10 (2014). Respondents were contacted in using a random-digit dialing method. The sample
consisted of 2064 respondents.
134 Id. at 12.
135 Id.
136 Id. at 15.
137 Jason D. Hans & Brigitte Dooley, Attitudes Toward Making Babies...With a Deceased Partner’s Cryopreserved
Gametes, 38 DEATH STUD. 571 (2014). Respondents were contacted using a modified, list-assisted random-
digit dialing method. The procedure resulted in a sample of 857 respondents.
348 r Creating life after death

the participants responded that the partner should be able to reproduce using frozen
gametes in cases in which the deceased’s explicit wishes were unknown.138 Moreover,
when the couple was married, 76% of the participants responded that the partner
should be able to use the frozen gametes, as compared to 66% of the participants that
stated the same for unmarried couples. The study concluded that, ‘Americans are gen-
erally accepting of the procedure’.139
A few empirical studies were conducted in Israel as well. The first study was pub-
lished in 2015 by Yael Hashiloni-Dolev.140 The study showed that while a few inter-
viewees had a person wish in continuity and in having a post-mortem offspring, ‘many
interviewees were willing to defer to their surviving spouse’s wishes to have their post-
mortem child, sometimes even against their own wish, thus indicating a stronger sup-
port for presumed consent to surviving partners requests’.141 In another study, pub-
lished in 2016, Hashiloni-Dolev and Zvi Triger revealed similar results.142 A recent
study, conducted by Vardit Ravitsky and Ya’arit Bokek-Cohen, indicated Israeli sol-
diers’ willingness to pursue posthumous reproduction if that was their parents’ request.
Interestingly, the wishes of the parents had much more influence on the willingness to
pursue posthumous reproduction than the wishes of the partner.143
Although further research is needed to gain a better understanding on people’s in-
terests after their death, the empirical studies described above may imply that overall
the public tend to have a positive attitude toward posthumous reproduction when it
is requested by the deceased’s partner or parents.144 Ultimately, the empirical studies
indicate that adopting the ‘respect-for-wishes’ model may produce outcomes that are
more likely to resemble the deceased’s interests.

C. Other interests at stake

The third justification concerns the interests of the deceased’s partner, the deceased’s
parents, and the resulting child—which have not received much attention in the liter-
ature. One of the arguments against posthumous reproduction would be that it should
only concern the deceased, and not living individuals. Proponents of this view may
claim that if the deceased’s wishes are unknown, it should be presumed that that person
would have refused. Presuming refusal, this line of reasoning runs, does not harm the
deceased. However, such an argument ignores the fact that others have interests that
are affected by presuming refusal.

138 Id. at 575.

139 Id. at 579.
140 Hashiloni-Dolev, supra note 6. This study was based on 26 semistructured in-depth interviews of 13 Jewish-
Israeli couples (ages 21–33).
141 Id. at 640–41, 647.
142 Hashiloni-Dolev & Triger, supra note 61, at 701. This study was based on 28 semistructured in-depth inter-
views of 14 Jewish-Israeli couples (ages 21–33).
143 Ya’arit Bokek-Cohen & Vardit Ravitsky, Soldiers’ Preferences Regarding Sperm Preservation, Posthumous Re-
production, and Attributes of a Potential ‘Posthumous Mother,’ O.M.E.G.A. 1, 13–5 (2017); Vardit Ravitsky &
Ya’arit Bokek-Cohen, ‘Life After Death’: The Israeli Approach to Posthumous Reproduction, in BIOETHICS AND
BIOPOLITICS IN ISRAEL: SOCIO lEGAL, POLITICAL, AND EMPIRICAL ANALYSIS 207–08 (Hagai Boas et al. eds.,
2018).
144 Collins, supra note 5, at 435.
 Creating life after death r 349

i. The deceased’s partner

In many cases, the deceased’s partner has interests in procreating and becoming a par-
ent after the death of his or her loved one. The core rationale underlying individuals’
interests in procreating and parenting is connected to concepts of human dignity and
identity.145 These interests concern people’s desire ‘to create a secure nest and achieve a
deep and meaningful connection and relationship with their flesh and blood extension
of self’.146 Although reproductive issues are generally contested, there is wide agree-
ment that choices in procreative matters should be respected.147 The legal system also
reflects this consensus by giving a wide protection to procreative freedom.148
Numerous legal systems have long recognized the rights to procreate and become
a parent as fundamental rights. In the United States, the Fourteenth Amendment
has been interpreted as protecting a person’s right to procreate.149 The United States
Supreme Court has often interpreted a person’s rights to liberty and privacy as im-
plying a right to procreate. In Israel, the rights to procreate and become a parent are
constituently protected, and these rights are derived from human dignity, the right to
privacy, and the principle of autonomy.150 A person’s rights to procreation and par-
enthood have been recognized in various rulings of the Supreme Court of Israel, and
particularly in the case of Nahmani v Nahmani. In that case, the Supreme Court held
that in special circumstances, a woman’s rights to procreate and become a parent take
precedence over her husband’s right not to be a parent.151 The Supreme Court main-
tained that, ‘if you take parenthood away from someone, it is as if you have taken away
his life’,152 and emphasized that procreation and parenthood constitute ‘basic and ex-
istential value[s] both for the individual and for the whole of society’.153
One can hardly doubt that the deceased’s partner has rights to procreate and become
a parent. The more controversial question is whether such rights extend to the partner’s
rights to procreate and become a parent by using a particular genetic material—the de-
ceased’s gametes. Such an extension may be justified by the partner’s expectation that
the relationship with the deceased would lead to parenthood, and this defense is all the
more compelling if the surviving partner does not have any other possible alternatives
for fulfilling that interest.154 In the case of widows, for example, the fact that the ‘bi-
ological clock’ is ticking may influence the decision of whether to permit posthumous
145 JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 16, 22–
42 (1994); Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEY
J. GENDER L. & JUST. 18, 49 (2008); Nicolette Priaulx, Rethinking Progenitive Conflict: Why Reproductive Au-
tonomy Matters, 16 MED. L. REV. 169, 175 (2008).
146 Doron Dorfman, The Inaccessible Road To Motherhood: The Tragic Consequence of Not Having Reproductive
Policies for Israelis with Disabilities, 30 COLUM. J. GENDER & L. 49, 52 (2015).
147 ROBERTSON, supra note 145, at 24.
148 Id.
149 See eg Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942); Eisenstadt v. Baird, 405 U.S.
438 (1972); Moore v. City of E. Cleveland, 431 U.S. 494 (1977); Quilloin v. Walcott, 434 U.S. 246 (1978);
Santosky v. Kramer, 455 U.S. 745 (1982); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Bragdon v.
Abbott, 524 U.S. 624 (1998).
150 Rhona Schuz, The Developing Right to Parenthood in Israeli Law, 2013 INT’l SURV. FAM. L. 197, 197–201
(2013).
151 CFH 2401/95 Nahmani v. Nahmani [1995–6] ISR. L. REV. 1.
152 Id. at 40.
153 Id. at 38–9.
154 Hilary Young, Presuming Consent to Posthumous Reproduction, 27 J. L. & HEALTH 68, 78 (2014).
350 r Creating life after death

reproduction, because it could represent the woman’s last chance to procreate. Widows
may not want to wait and find another man in order to have a child.
Entering into a serious relationship usually generates strong expectations of pro-
creation, particularly if the couple talks about children and makes plans to that ef-
fect. Individuals may even rely on such expectations, often forgoing other opportuni-
ties for reproduction.155 The American Society for Reproductive Medicine has framed
the partner’s interest in terms of the interest promoted by the couple’s ‘joint reproduc-
tive project’.156 It is argued that as long as no evidence demonstrates that the deceased
was opposed, if the couple planned to have a family together, the lack of prior consent
should not necessarily preclude posthumous reproduction.

ii. The deceased’s parents

In recent years, an increasing number of parents have become interested in retrieving
and using their child’s gametes after his or her death, and this figure is likely to increase
when the public becomes aware of the availability of posthumous reproduction.
Scholars have widely agreed that the deceased’s parents have no legally protected in-
terests as regards posthumous reproduction.157 However, under some circumstances,
the parents’ interest in grandparenthood should be legally recognized and they should
be entitled to use the deceased’s gametes to bring a grandchild into the world. The par-
ents’ interest in grandparenthood reflects, first and foremost, their interest in realizing
their child’s interest in genetic continuity. Moreover, it also concerns the parents’ own
interests in the continuation of the family genetic heritage and the grand-parenting ex-
perience.
There should be two main possibilities for parents to realize their interest in grand-
parenthood in the context of posthumous reproduction (assuming that the deceased
had not explicitly objected or that there are no indications that the deceased would not
have permitted the parents to use the gametes, such as poor parent–child relationship or
abusive behavior on the part of the parents). One option is by donating the deceased’s
gametes, permitting another person to become a parent. In this case, the designated
parent has the primary responsibility for the child and the deceased’s parents only have
a relationship with the child. Another option is to make use of gamete donation and
surrogacy services. In such instances, there is no biological or genetic parent who is in-
volved in raising the child. The resulting child is raised by the deceased’s parents, who
are the ones to hold the primary responsibility.
The legal recognition of the parents’ interest in grandparenthood may be grounded
in the following justifications. The first justification concerns the relationship that par-
ents have with their deceased child. A person’s parents frequently desire to have grandchil-
dren, perhaps even more so when their child dies. They may strongly feel that posthu-
mous reproduction offers them ‘a living link to their dead child’.158 Parents are not
meant to bury their children; it is not in the natural order of things. However, for sev-
eral reasons (illness or other circumstances), that can and does happen. Parents are
expected to watch their children grow into adulthood and to sit back and enjoy their
155 Id. at 81.
156 American Society for Reproductive Medicine, supra note 19, at 1844.
157 Katz, supra note 57, at 307.
158 Young, supra note 154, at 81.
 Creating life after death r 351

children’s lives, as well as those of their grandchildren. The death of a child prevents
parents from experiencing this ‘reward’. Allowing the parents to retrieve and use their
child’s gametes might keep this reward intact.
The second justification focuses on the role of grandparents. The relationship be-
tween grandparents and their grandchildren has become less traditional; for differ-
ent reasons, a great number of grandparents have full responsibility for rearing their
grandchildren.159 Grandparents provide a significant amount of care for their grand-
children, and in recent years, the legal standing of grandparents on other matters has
been increasing. For example, Israeli law authorizes courts to make decisions on re-
quests submitted by grandparents regarding contact with their grandchildren when a
parent dies.160 A recent amendment added that courts can make decisions on requests
submitted by grandparents regarding contact with their grandchildren in circumstances
that do not necessarily involve a deceased parent. Alongside the recognition of grand-
parents’ legal status concerning their grandchildren, grandparents also have duties—it
is possible to impose child support on them.161 In the United States, several states have
granted grandparents a statutory right to petition the courts for visitation. The law in
Washington provides that ‘visitation with a grandparent shall be presumed to be in
the child’s best interests when a significant relationship has been shown to exist’.162
In Florida, the court should, upon a petition filed by a grandparent of a minor child,
grant reasonable rights of visitation to that grandparent when it is in the best interests
of the child.163 The above-mentioned legal trend leads to a desirable outcome. Indeed,
the legal recognition of the interest in grandparenthood differs between reproduction
and issues of visiting rights and child support. Yet, the recognition of the latter implies
that grandparents play a crucial role in their grandchildren’s lives, and that they should
have legal standing in matters concerning their grandchildren.
The third justification concerns genetic continuity. The deceased’s parents have a deep
desire to pass on their genes and ensure that some part of them will survive in the future.
The deceased’s parents are interested in the continuity of family ties across generations.
Therefore, genetic relatedness should be granted a special weight in constructing fam-
ilies and in assigning rights. It seems that while genetic relatedness is not necessary to

159 TRACI TRULY, GRANDPARENTS’ RIGHTS 5 (1999).

160 Capacity and Guardianship Law (Amendment No. 17), 5772–2012, § 28 (2012). This provision was added
after the 1973 Yom Kippur war following cases in which widows did not allow their children to meet the
deceased’s parents. Several cases were ruled in favor of the grandparents’ rights. See eg File No. 4238/03
Supreme Court (Jerusalem), Levy v. Highest Rabbinical Court (Sept. 9, 2003), Nevo Legal Database (by
subscription, in Hebrew); File No. 1900/06 Family Court (Krayot), Orphan v. Widow (Oct. 29, 2006), Nevo
Legal Database (by subscription, in Hebrew).
161 The Family Amendment (Maintenance) Law, 5719–1959, §§ 4–5 (1959).
162 WASH. REV. CODE ANN. § 26.09.240(6) (2017). All that notwithstanding, the visitation rights are limited when
the grandparents’ wishes are not consisted with the parents’ wills. The Supreme Court of the United States
decided that the application of § 26.10.160(3) of the Revised Code of Washington was an unconstitutional
infringement on the custodial parent’s rights. § 26.10.160(3) provided that ‘any person may petition the court
for visitation rights at any time including, but not limited to custody proceedings. The Court may order visita-
tion rights for any person when visitation may serve the best interest of the child whether or not there has been
any change of circumstances’. However, the Court did not declare that nonparent or grandparent visitation
statutes are per se unconstitutional. Rather, it indicated that state courts would have to examine the statutes
on a case-by-case basis. See Troxel v. Granville, 530 U.S. 57 (2000).
163 FLA. STAT. ANN. § 752.01 (2017).
352 r Creating life after death

establish family ties, it may be sufficient, especially in regard to the child’s wider fam-
ily.164
The recognition of the deceased’s parents’ interest in grandparenthood may raise
several objections. The first critique would be that allowing the parents to use their
child’s gametes and raise the resulting child may blur the boundaries between parents
and grandparents. Since the resulting child will grow up in a family in which one of his
or her genetic parents is dead, there is a risk that the deceased’s parents will raise that
child as if he or she were their own child, rather than their grandchild. However, this
objection is not persuasive since the deceased’s parents do not have a reason to act as
the child’s parents. After all, their main motive is to fulfill the deceased’s wish for ge-
netic continuity. A second objection could be that the parents can adopt a child instead
of using their own child’s gametes. However, such an objection ignores the fact that the
parents do not want to have just any grandchild, but rather a genetic grandchild, who
has the family’s genes and would leave a ‘piece’ of their child and of themselves in the
world.

iii. The resulting child

A central claim against posthumous reproduction is that it may not be in the best inter-
ests of the child.165 This line of reasoning claims that bringing a fatherless or motherless
child into the world would harm him or her.166 According to proponents of this view,
‘an adult’s desire to give birth to an orphan should not have priority over the child’s basic
right to two living parents’.167 The critics posit that the child may suffer both econom-
ically and emotionally—the child may not be entitled to inherit the deceased’s estate
and may feel that he or she is a ‘replacement’ for the deceased, serving as a ‘memorial’
for a late parent.168 Moreover, if the deceased’s parents intend to raise the child, he or
she might grow up with older individuals suffering from declining physical and mental
health.
The main critique of the aforementioned arguments is that the act claimed to be
harmful for the child is, in fact, the very process that brings that child into being.
According to Derek Parfit’s famous ‘non-identity problem’, actions cannot harm fu-
ture individuals because they do not make them worse off than they would otherwise
have been. Individuals can be harmed only if they are worse off than they otherwise
would have been if a particular action had not occurred.169 Until evidence is able to
demonstrate that the absence of a living parent is significant, there is no reason to be-
lieve that posthumous birth harms the resulting child.170

164 Heather Draper, Grandparents’ Entitlements and Obligations, 27 BIOETHICS 309, 311 (2013); Andrew Bain-
ham, Contact as a Right and Obligation, in CHILDREN AND THEIR FAMILIES: CONTACT, RIGHTS AND WELFARE
37 (Andrew Bainham, Bridget Lindley & Martin Richards eds., 2003).
165 Orr & Siegler, supra note 29, at 301; Lewis, supra note 62, at 1175; Evelyne Shuster, The Posthumous Gift of
Life: The World According to Kane, 15 J. CONTEMP. HEALTH L. POL. 401, 409–10 (1999).
166 Landau, supra note 59, at 1952–953.
167 Id. at 1953.
168 LEWIS, supra note 29, at 24–5.
169 PARFIT, supra note 101, at 351–77; I. Glenn Cohen, Regulating Reproduction: The Problem with Best Interests,
96 MINN. L. REV. 423 (2011); I. Glenn Cohen, Beyond Best Interests, 96 MINN. L. REV. 1187 (2012).
170 Sheila A. M. McLean, Post-Mortem Human Reproduction: Legal and Other Regulatory Issues, 9 J. L. & MED. 429,
437 (2002).
 Creating life after death r 353

In responding to the ‘non-identity problem’, several theories provide justifications

for protecting the interests of future people. One theory, the ‘threshold conception of
harm’, explains that an action can be harmful if it causes an individual to have a life
that falls below a certain threshold.171 Another theory is the ‘impersonal principle of
beneficence’. It claims that if either of two possible outcomes occur in which the same
number of people live, the situation is inferior if those who live are worse off, or have a
lower quality of life, than those who would have lived.172 A third theory, the ‘externali-
ties approach’, focuses on the costs of other parties.173
None of these theories is sufficiently persuasive when it comes to posthumous re-
production. First, regarding the ‘threshold conception of harm’, even if some problems
arise in the child’s life, their development could be thwarted via appropriate mental
health care. Such issues would not cause the child to live below a minimum level of
well-being or to have a lower quality of life. In addition, the claim that posthumous re-
production harms the child runs against the modern structure of the family unit.174 In
contemporary society, there are more single parent families and more cases in which
the social parent and the genetic parent are not the same. Studies have not produced
any evidence of harm to children who are raised by a single parent.175 Moreover, indi-
viduals live longer today than ever before,176 and as such, concerns regarding the fitness
of the deceased’s parents as a primary caregiver are significantly lower.
Second, regarding the ‘impersonal principle of beneficence’, its use is restricted to
‘same-number’ cases—that is, those in which the world would contain the same num-
ber of people, regardless of which option is chosen.177 Under this theory, ‘it is only in
same-number cases that the non-person affecting principle approach can declare that
the world is better off from an impersonal standpoint if the substitution takes place’.178
However, it seems that posthumous reproduction is, in fact, a ‘different-number’ case,
as divergent numbers of children would come into existence with each alternative. By
prohibiting posthumous reproduction, fewer children would be produced. Therefore,
the impersonal principle of beneficence does not support the regulation of reproduc-
tion when it produces fewer children.179
Third, regarding the ‘externalities approach’, it cannot justify a total ban on posthu-
mous reproduction. It can possibly support the claim that posthumous reproduction
does not help to reduce the number of orphans—that is, instead of bringing a new
child into the world, the deceased’s partner or parents should adopt an existing child.

171 Jeff McMahan, Wrongful Life: Paradoxes in the Morality of Causing People to Exist, in RATIONAL COMMITMENT
AND SOCIAL JUSTICE 208 (Jules L. Coleman & Christopher W. Morris eds., 1998); Lukas H. Meyer, Historical
Injustice and the Right of Return, 5 THEO. INQ. L. 305, 306–11 (2004).
172 PARFIT, supra note 101, at 378.
173 Cohen, Beyond Best Interests, supra note 169, at 1217.
174 Collins, supra note 5, at 434.
175 Alison Douglass & Ken Daniels, Posthumous Reproduction: A Consideration of the Medical, Ethical, Cultural,
Psychosocial and Legal Perspectives in the New Zealand Context, 5 MED. L. INT’l. 259, 268 (2002).
176 In Europe, life expectancy was 81 years of age in 2016, and in the United States it was 79. In countries such
as Israel and the United Kingdom, people reach 81 to 83 years of age on average. See World Bank, World
Development Indicators (2016), https://data.worldbank.org/indicator/SP.DYN.LE00.IN (accessed May 24,
2018).
177 Cohen, Regulating Reproduction, supra note 169, 485–86.
178 Id. at 486.
179 Id. at 487.
354 r Creating life after death

Another possible argument is that posthumous reproduction may harm the couple’s
existing children, if any, due to the wider distribution of existing resources across chil-
dren. However, there are several problems associated with this theory. The first relates
to the fact that in many cases, there are no existing children.180 The second problem
is that it only considers the negative externalities.181 As previously discussed, posthu-
mous reproduction would benefit the deceased’s partner and parents. The third draw-
back is that it does not consider the overall benefit that posthumous reproduction
brings. The benefit arising from the child’s birth may outweigh any negative externali-
ties affecting others. The fourth problem concerns under inclusivity.182 As Glenn Co-
hen has argued, ‘there are many forms of reproduction producing comparable or worse
reproductive externalities and no intervention has been imposed.’183 Thus, there would
seem to be a lack of valid arguments for prohibiting posthumous reproduction while at
the same time permitting other practices.

CONCLUSION
The topic of posthumous reproduction raises a wide range of ethical and legal dilemmas.
The article addressed some of those dilemmas, such as whether it is possible to presume
the deceased’s intentions; what status the deceased’s partner and parents have in deter-
mining the deceased’s interests; and whether posthumous reproduction is against the
resulting child’s best interests. The core argument of the article was that posthumous re-
production should be legally permitted, even in the absence of the deceased’s prior con-
sent, and that the default position should be to presume that the deceased consented to
posthumous reproduction, unless he or she previously objected to it or there are strong
indications (eg religious beliefs or values) that the person would not have agreed. De-
cisions to prohibit posthumous reproduction should not be based solely on the prin-
ciples of autonomy and bodily integrity and more considerations should be taken into
account, including the deceased’s interest in genetic continuity, the partner’s interest in
procreating and becoming a parent, the parents’ interest in grandparenthood, and the
child’s opportunity to come into existence.

ACKNOWLEDGE MENTS
I would like to thank Glenn Cohen for the most helpful criticism and guidance. I am also grateful
to Liav Orgad for sharing his pearls of wisdom with me throughout the process, and to Doaa Abu
Elyounes, Tamar Ben-Artzi, Desmond Conway, Anders Herlitz, Asa Kasher, Hanan Melcer, Amnon
Rubinstein, Konstantin Tretyakov for their valuable feedback and contribution. Thanks are also due
to the participants of the Visiting Researcher Colloquium at Harvard Law School and the Fellows
Colloquium at the NIH Department of Bioethics, as well as to the anonymous reviewers of the Journal
of Law and the Biosciences for their insightful and instructive comments. Finally, I would like to express
my gratitude to the ISEF Foundation for its financial assistance, which made the research possible.

180 Cohen, Beyond Best Interests, supra note 169, at 1218.

181 Id. at 1230.
182 Id. at 1123.
183 Id.