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Eur J Obstet Gynecol Reprod Biol X
Eur J Obstet Gynecol Reprod Biol X
European Journal of Obstetrics & Gynecology and Reproductive Biology: X
2590-1613
Elsevier

S2590-1613(24)00057-7
10.1016/j.eurox.2024.100337
100337
Review
Postmortem fertilization: New Italian government guidelines affirm the legitimacy of this procedure.
Turillazzi Emanuela a
Morena Donato b
Scopetti Matteo c
Fineschi Vittorio vittorio.fineschi@uniroma1.it
b⁎
a Section of Legal Medicine, Department of Surgical, Medical and Molecular Pathology and Critical Care Medicine, University of Pisa
b Department of Anatomical, Histological, Forensic and Orthopedic Science, Sapienza University of Rome, Rome, Italy
c Department of Medical Surgical Sciences and Translational Medicine, Sapienza University of Rome, Rome, Italy
⁎ Corresponding author. vittorio.fineschi@uniroma1.it
22 8 2024
9 2024
22 8 2024
23 10033710 7 2024
8 8 2024
16 8 2024
© 2024 The Authors. Published by Elsevier B.V.
2024

https://creativecommons.org/licenses/by-nc/4.0/ This is an open access article under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).
Although posthumous reproduction (PHR) is viewed unfavorably by some, it may be a desirable option for subjects whose partners died before they could complete their family planning. With particular regard to posthumous embryo implantation, questions arise regarding the definition of "conception" when a couple undergoes in vitro fertilization while both are alive, but the embryo is implanted in a woman's womb after one parent has died. In accordance with Italian Law 40/2004, access to medically assisted reproduction is contingent upon the survival of both partners in a couple. The legislative prohibition remains in effect unless the application of the reproductive technique has already resulted in the formation of embryos, and implantation is permitted to uphold "the rights of all the subjects involved, including the conceived", as stated in Article 1 of Law 40/2004. Since the enactment of the legislation, a number of Italian courts have issued rulings on PHR on a case-by-case basis. Recent government guidelines in Italy have sought to balance these considerations, giving due weight to the will of the woman, the potential unborn child, and the previous consent of the donor partner.

Keywords

Posthumous reproduction
Embryo implantation
Italian government guidelines
Informed consent
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pmcIntroduction

Posthumous reproduction (PHR), though viewed unfavorably by some, may be a desirable option to subjects whose partners died before they could complete their family planning.

PHR can be, schematically, divided into three categories:1. Postmortem birth: fertilization and pregnancy occur before the death of one of the partners, but birth happens after their death.

2. Postmortem conception: cryopreservation of gametes or embryos occurs before the partner's death, but fertilization and/or pregnancy take place after their death.

3. Postmortem acquisition: obtaining and cryopreserving gametes or reproductive tissue occurs peri- or postmortem, with fertilization and pregnancy following thereafter [1].

Each of these practices poses thorny ethical and legal issues [2], [3], [4]. Therefore, courts and lawmakers around the world are profoundly divided on the legitimacy of this practice. Some countries ban every kind of PHR, while others either partially limit it or do not regulate it at all.

The Italian scenario

Italian Law 40/2004 on medically assisted reproduction (MAR) (i.e., Law 40/2004) [5] appeared to preclude PHR based on Article 5, which requires both partners to be living. However, it is unclear whether this requirement applies at the time of the MAR request or throughout the entire procedure. Italian courts have examined PHR cases involving the implantation of embryos cryopreserved before the male partner's death.

The first case (Court of Bologna, 2015) [5] involved a widow's request to implant embryos cryopreserved with her husband's consent. After the hospital refused, citing Articles 5 and 12 of Law 40/2004, she appealed to the local court. The Court found that in 2010, the couple had expressed interest in cryopreserving embryos for future use. Since the couple accessed MAR before Law 40/2004 was enacted, the Court applied the Italian Ministry of Health Guidelines [6], which state that a woman has the right to the transfer of cryopreserved but not abandoned embryos. Additionally, the Court considered the woman's age of 50 and the poorer pregnancy outcomes associated with advanced maternal age, ultimately accepting her appeal.

In the second case (Court of Reggio Emilia, 2015) [7], a cohabiting couple accessed MAR in 2012. Of the three cryopreserved embryos, two were unsuccessfully implanted. After the man's death, the woman requested implantation of the last embryo, but the hospital refused. The woman appealed to the local Court, which ruled that, "in the hypothesis of cryopreserved embryos obtained with the consent of both members of the couple, one of whom is subsequently deceased”, Articles 5 and 12 of Law 40/2004 “do not constitute a limit to the exercise of the woman's right to obtain the embryo transfer”. The Court also emphasized that the right to motherhood outweighed concerns about the absence of the paternal figure.

The Court of Lecce ruling in 2019 [7] followed a similar approach. A married couple used MAR techniques, and two embryos were cryopreserved. After her husband's death, the woman requested their transfer, but the hospital refused. The Court accepted her appeal and ordered the embryos' transfer, stating that under homologous MAR, a woman has the right to implant embryos formed under Law 40/2004 even after her husband's death. The Court clarified that Article 5's requirement for both partners to be alive applies only at the time of fertilization, not at the time of implantation.

Finally, in 2018, the Court of Bologna ruled on another case of PHR [7]. In 2016, a married couple accessed heterologous MAR, obtaining three embryos, two of which were cryopreserved. After her husband's death, in 2018, the woman requested the hospital to proceed with the implantation of the frozen embryos. Upon receiving a refusal, she approached the local Court. The Court, aligning with the jurisprudential and doctrinal orientation that the prohibition expressed by Article 5 of Law 40/2004 concerns only post-mortem fertilization and not post-mortem embryo implantation, accepted the appeal.

Very recently, binding guidelines on procedures and techniques of MAR were issued by the Italian Minister of Health, expressly providing that, at the time of acquiring consent, applicants must be clearly told that after fertilization of the gametes, the woman can request the implantation of the embryo even if her partner has died [8].

Discussion

Several ethical implications are associated with PHR, including, inter alia, questions regarding the ownership of gametes, the inheritance rights and benefits of posthumously conceived children, the social construction of families, the deceased's prior consent and rights, the interests of the requesting party, and the best interests of the resulting child.

With regard to posthumous embryo implantation, questions arise regarding the definition of "conception" when a couple undergoes in vitro fertilization while both are alive, but the embryo is implanted in a woman's womb after one parent has died.

Post-mortem procreation is facilitated by cryopreservation, which can involve both gametes and embryos already formed in a test tube. Italian Law 40/2004 permits the cryopreservation of gametes, both male and female, but directly bans it for embryos, except in cases deemed necessary by specialists due to a serious and documented force majeure related to the woman's health that was unforeseeable at the time of fertilization (Article 14).

In PHR, there is a dramatic choice for the conceived embryos: to be born or not to be born. The stated goal of protecting the conceived child appears to conflict with the prohibition of PHR, particularly regarding the implantation of embryos already produced through MAR techniques and cryopreserved for cases where the woman is now widowed. All these principles were forcefully reiterated in the very recent pronouncement of the Italian Constitutional Court no. 161/2023 [9], which stated the irrevocability of fathers' consent to MAR even in the case of judicial separation of the couple and refusal of the father to continue the parental plan.

Moreover, the creation of a suitable family environment for a potential child conceived through MAR is often cited as a reason for various restrictions on prospective parents. In the context of PHR, this concern aims to prevent the formation of single-parent families and to avoid the situation where the child faces "planned orphanhood" [10].

The principal objection to these arguments is that potential concerns about the child suffering from the absence of a paternal figure should not outweigh the constitutional protection of the right to life of the conceived child. From the perspective of the future child, it is untenable to argue that non-existence is preferable to being an orphan [11].

We could also echo the words of an Australian judge who, while deciding in a PHR case, emphasized that the best interest for a child is to grow up in a loving environment, and that a family is not a perfect family simply because it consists of a father, a mother and children [12].

There is a further risk that the presumed (and unproven) best interest of the resulting child might be used to justify limiting other important interests in PHR, such as rights to freedom, self-determination, and health. This is particularly relevant when considering the prohibition on completing a procreative process that was mutually agreed upon with a partner who has since died.

Finally, the issue of consent lies at the center of the debate on PHR. One position is that explicit (written) consent would be mandatory, especially for some forms of PHR, such as for sperm’s collection and use after the man’s death.

In this perspective, the deceased's wishes should not be presumed postmortem by anyone: partner, parents, or even by a court [12] as, in the lack of an explicit written consent, no certainty exists. However, as most of deaths in men of reproductive age are sudden and unexpected, it is very rare to have an explicit advance consent on this subject [12].

A justification for permitting PHR without prior consent could be based on the “respect-for-wishes” model of autonomy. This model suggests that after death, it should be lawful to honor how individuals likely would have wished to be treated. Within this framework, it is reasonable to assume that the deceased would have wanted to fulfill the wishes of their loved ones. Therefore, if a partner wish to retrieve and use gametes, it can be presumed that the deceased would have consented to this course of action [12]. Consequently, in the absence of explicit or indicative indications, it should be argued that the deceased would have consented to having their gametes retrieved and used by the partner [2].

In this view, some authors [2], [13] argue that once an individual is deceased, any meaningful interests exist anymore. Human organs and gametes become useless after death, except for their potential to save or create life for others. Therefore, gametes, like organs, should be considered a resource for use after death based on the standard of presumed consent.

This position has not been endorsed by several professional bodies, such as the European Society for Human Reproduction and Embryology (ESHRE) [14] and the American Society for Reproductive Medicine (ASRM) [3], and has been labeled as radical by some critics [15].

Finally, several reasons argue against presuming consent in PHR. The most compelling is that if the deceased had considered the issue, they likely would not have consented, finding it unfair for a child to be born without both parents or not wishing to have a child they would never know [16]. Conversely, opponents of PHR speculate that, even if it is known the deceased’s wish to become a parent while still alive, this does not inform about the desire for post-mortem parenthood [11], [17], [18].

Conclusion

The prevailing doctrine and Italian jurisprudence on PHR interpret the law in a manner that prioritizes the protection of the unborn child, the informed consent of donors, and the woman's freedom of choice over the rigid bans outlined in Law 40/2004. It is commonly argued that ethically sensitive issues involve slippery slope arguments. This is particularly evident in the case of PHR, which represents a crossroads of complex bioethical considerations. PHR intertwines issues of so-called frontier bioethics with the concepts of nascent life and death, making the decision-making process highly intricate and contentious. Recent government guidelines in Italy have sought to balance these considerations, giving due weight to the will of the woman, the potential unborn child, and the consent of the donor partner.

CRediT authorship contribution statement

Emanuela Turillazzi: Conceptualization. Matteo Scopetti: Data curation. Donato Morena: Writing – original draft. Vittorio Fineschi: Writing – review & editing.

Declaration of Competing Interest

The authors declare that they have no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.
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