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Mandatory Fields
Neil Maddox
Consent and the Regulation of Posthumous Conception
Optional Fields
Posthumous Conception; Consent; Advanced Written Directives; Fertility law
Consent and Posthumous Conception
This article examines the effectiveness of different approaches to the regulation of posthumous conception in vindicating the interests that a person has in both the posthumous treatment of their body and in reproduction after death. Strict requirements for advanced written directives tend to exclude the category of people most likely to benefit from the procedure. Permissive regimes, in minimising the importance of consent, risk intrumentalizing the dead and using them solely as a means to serve the interests of the living. I contend that a system whereby consent or authorisation can be implied best protects the interests of the deceased after death. I propose a two stage system of consent to posthumous sperm retrieval and then its subsequent use and argue that the primary focus of the decision-maker should be in arriving at a decision that accords with the deceased’s beliefs and values. Given the narrow window after death in which motile sperm can be gathered by posthumous sperm retrieval, I contend that the surviving partner is best placed to consent on behalf of the deceased. The authorisation for use, however, should be determined by a quasi-judicial committee charged with vindicating the reproductive autonomy of the deceased.
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