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Alison Motluk writes regularly about assisted reproduction and publishes a weekly newsletter, HeyReprotech.

These days, when you catch yourself musing about what would happen to all your stuff if you were suddenly to die, you might want to give a thought to your eggs or sperm, too. Even if they’re still inside your body.

Posthumous use of gametes is now a thing. And it raises challenging questions.

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Take the case of a 23-year-old Australian man who killed himself in August, 2016. Just hours after his death, at the request of his girlfriend of three years, a court gave permission for his sperm to be extracted from his corpse. Doctors retrieved the sperm and froze it. The dead man’s parents supported the idea.

The move was controversial, because it wasn't clear if it was legal in that part of Australia to harvest, store or transport sperm without a person's written consent. Although the man had talked about having a family with his girlfriend, he had not put those desires in writing. But in June last year, a judge ruled that the girlfriend could use the sperm, now deemed her property, to try to get pregnant.

The man’s final decision in life was to die. But those closest to him persuaded a court he would have wanted to create life, in the form of his own biological children.

Parents and partners of the deceased don’t always agree, of course. In another case, a man from New Zealand moved to Australia to be with a girlfriend he’d met online, and only a few months later, he took his own life. His testes were surgically removed and preserved, at the girlfriend’s request. Courts and next of kin have to make quick decisions on such matters, as sperm in a dead body only remains viable for a few days. The parents later claimed they were pressured by the girlfriend to consent, and a court battle followed, with the parents opposing the girlfriend’s bid to use their dead son’s sperm; last November, a court ordered the testes destroyed.

Sometimes there’s no partner, as with yet another case, this time from Britain. Last September, the Mail on Sunday reported that a wealthy British couple had created a grandchild using their dead son’s sperm. The 26-year-old son was killed four years earlier in a motorcycle accident, and his body lay undiscovered for two days. His parents persuaded a medical practitioner to remove sperm from his body, despite the fact that he’d never consented. The sperm was then frozen and stored.

About a year later, the sperm was sent by medical courier to the United States, where a fertility doctor used it to fertilize donor eggs. These came from a woman the grandparents chose, believing she would have been physically, educationally and intellectually the type their son might have married. Four embryos were created, and a male one was picked to be gestated by a surrogate. The grandparents were present for the birth, and they are raising the child, now a preschooler.

There’s a lot to unpack here. In each of the examples above, a person arranged to have sperm seized from a loved one’s dead body. And they did it without any express written wishes indicating a desire to create children after death from said loved one. I, for one, am a little uneasy about this. And it’s not just the fact of rummaging around in a corpse – it’s the creating of an offspring without a person’s consent or participation. As University of Montreal bioethicist Vardit Ravitsky puts it, “it’s like altering the life story of the person after their death.”

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Taking gametes from dead bodies is still pretty rare. Much more common are instances in which an individual has deliberately stored reproductive material while alive, and then after they die, someone else asks to use it. Although less macabre, similar ethical issues come up.

Often, the person asking to use a dead person’s gametes is the spouse. A woman might ask to use her dead husbands’s frozen sperm. Or she might ask to use their frozen joint embryos. She might argue, compellingly, that the fact that they created this embryo is a clear indication of their intent to parent together. The most challenging instances are when the surviving partner has no other option to have children. Maybe the woman requesting the embryos is now in her mid-40s and the embryos are made from her final viable eggs. Maybe the widower asking for the stored embryos has had cancer treatment and no longer has viable sperm.

In Canada, federal law requires explicit written consent before gametes can be removed or used after a person’s death. Some places, such as Germany and France, forbid it altogether, consent or no consent. Others, however, are inclined to elevate the rights of the living over the rights of the dead.

Last year, the American Society for Reproductive Medicine (ASRM), a body that advocates for the fertility industry, issued a policy statement on posthumous procreation. It said that if a person explicitly wrote that they would not like to conceive children after their death, that should be honoured, no matter what. But if nothing was written down, the ASRM said, there are circumstances in which it should be considered. (Now might be a good time to scribble something down about your postdeath conception wishes.)

True, when you’re dead, none of this matters. Dead people can’t care about seeing their kids grow up or guiding them through hard times. But considering the importance we place on things such as deathbed promises, wills and legacy giving, Dr. Ravitsky says, it’s clearly the case that we believe a dead person’s erstwhile values continue to matter. “Think about how much people do to protect their legacy – to shape their legacy,” she says.

Still, the ASRM advises that, where state laws allow, and where a physician feels comfortable, the wishes of surviving partners should be taken into account even in the absence of consent. Unless there is evidence to suggest otherwise, they say, it’s reasonable to think that the dead person planned to have kids with their spouse – especially where they created embryos together, but also if gametes were frozen as part of a joint reproductive project.

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In contrast, the ASRM says, the dead person probably didn’t intend to have kids for their parents. Without explicit written consent, they advise, gametes or embryos should not be turned over to parents. Increasingly, however, parents are the ones asking. There was a case in Britain in which a mother petitioned for her dead daughter’s frozen eggs. A case in India, in which a mother asked for her dead son’s frozen sperm. In both instances, the children had cancer, and had anticipated their deaths.

A recent case in China offers a more extreme example. A couple who died in a car accident before they could finish their fertility treatment left behind frozen embryos. Their four parents banded together and won a precedent-setting court battle to gain rights to them. Because surrogacy is illegal in China, however, they had to go through further court actions to retrieve the embryos from where they were stored, transfer them out of the country to Laos, where surrogacy was legal, and have a surrogate there carry the baby to term. In December, 2017, four years after his parents’ deaths, a baby boy was born.

Did the couple want their kid raised by a team of grandparents? We can’t ever really know. The ASRM points out, astutely, that in cases such as these, the only evidence of a dead person’s wishes is the testimony of the people who want to get their hands on the gametes – “a person bearing an apparent conflict of interest.”

For that reason and others, it seems to me Canada has it right: Let’s not leave this to assumptions. Let’s make sure any conceptions after death have been fully contemplated during life.

But is even that enough? What of the children? Some have called posthumous reproduction “planned orphanhood.” Will children born from dead people’s sperm and eggs feel undue loss? Will they be psychologically harmed? The ASRM warns that grandparents in particular might put pressure on a child conceived this way to somehow replace or resemble the deceased. Some ethicists have countered that it’s always better to be born than not. We can’t know for sure how the practice affects the people born until we start hearing from the offspring themselves.

In the meantime, there are the practical questions. Should babies born after their parent’s death be entitled to a cut of the inheritance? Should they qualify for survivor benefits? These are live questions. In January, for instance, a Quebec tribunal decided a child born some two and a half years after his father’s death had no right to an orphan’s pension. This was despite the fact that the child’s sibling, also born after the father’s death, but only about half a year after, does get the pension. There is, some would argue quite reasonably, a 300-day limit.

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Laws that exclude posthumously-conceived children risk creating an underclass of kids. But laws that include them mean the door on liability might never really close. Given that offspring can be born years or even decades after the death of the progenitor, things could get very messy down the line – and they could stay messy, for as long as the freezer stays cold.

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