WASHINGTON – A Chinese couple, Shen Jie and Liu Xi had been trying to get pregnant five years ago via in-vitro fertilization.
But, five days before their fertilized egg was meant to be implanted, they died in a car crash.
The couple left behind four frozen embryos and their own parents, on both sides of the family would go on to spend the next three years in Chinese courts arguing that they have rights to the embryos. Eventually, they won the battle, but, because surrogacy in China is illegal, they transported an embryo to Laos and found a surrogate there.
The baby was named Titian and is now nearly 4 months old.
It’s an unusual case, but it’s becoming a trend, with legislation pending in Ireland to legalize the procedure under certain circumstances, and Israel already has a law on the books permitting the process when at least one of the parents is still alive.
The issue is sure to be addressed by other countries, with advocates pushing for experimentation elsewhere.
Should couples be permitted to have babies who are orphaned at birth as the offspring of in-vitro fertilization?
In the U.K., when couples freeze their eggs (unfertilized or fertilized), the government requires that the woman or, in the case of fertilized eggs, both partners, to decide beforehand what should happen to the eggs in the case of mental incapacity or death.
Before a soldier in the Israeli Defense Forces reserves died in a Haifa hospital at the age of 25, single and childless, he made preparations to donate sperm so his parents would have a grandchild.
Seven years after his death, his daughter Shira, named by the mother, was born with the same blue eyes as her father.
The girl’s grandmother, Julia, went to the hospital the same day and cried when she saw her, a baby “of my own blood, from my son. If we’re talking about life after death, this is what it is,” she said.
Shira Malka isn’t the first child of a “deceased man” born in Israel. In fact, there are about 50 to date, all inseminated in-vitro. They are the offspring of soldiers, accident victims or sick people. The first case occurred in 2002, when an Israeli soldier was shot by a sniper in the Gaza Strip. His mother had sperm removed from the corpse within 72 hours and the resulting trial lasted eight years. His parents eventually received permission to use the sperm, and now his child is living.
Today, laws in Israel have been written to simplify court proceedings. Called a “biological will,” it testifies that a person who has their semen or eggs frozen would like them to be posthumously used to create offspring. Baruch Pozniansky was the first person in the world to establish such a will.
Since then, about 5,000 young Israelis, including many soldiers in special forces units, have written a biological will.
In-vitro fertilization is common practice and paid for by the Israeli government. Even the ultra-orthodox use it. In the Jewish faith, personhood begins with birth, not with fertilization. As a result, the method presents no problems from a theological point of view.
The legal and moral propriety of conceiving a child with a dead person’s egg or sperm is among the latest fronts being discussed in bioethics.
In Ireland, legislation is under consideration that would permit reproductive cells from deceased individuals to be used by their spouses or partners to conceive children posthumously, according to media reports. The Irish legislature’s Joint Committee on Health discussed the bill once in January and again in February. A final bill could be drafted in the coming months and put before parliament for debate.
“Assisted Human Reproduction is becoming increasingly important in Ireland and measures must be put in place to protect parents, donors, surrogates and crucially, the children born through AHR,” said Michael Harty, chairman of Ireland’s health committee.
The posthumous conception legislation, which is part of a broader bill, would require children of the procedure to be carried in the womb of a surviving female partner in the relationship.
Posthumous conception has also been considered by lawmakers and courts in the United States and Canada.
But some see ethical issues.
“There is no moral duty to use the sperm of a deceased husband or the eggs of a deceased wife,” said C. Ben Mitchell, a Southern Baptist bioethicist. “And intentionally bringing a child into the world with only a single parent raises a host of ethical issues, not to mention a host of psychological, emotional and relational issues for that child.”
In 2016 a girl was born in New York whose father, a police detective, was murdered. Just before he died, his wife requested sperm be extracted from his body and preserved. But, as yet, there are no laws on the books in the U.S. governing such procedures.
In a 2014 Texas case, a 2-year-old stood to inherit 11 frozen embryos after both of his parents were murdered.
Frozen embryos, Mitchell said, are a separate ethical consideration from posthumous conception.
“If the eggs have already been fertilized, there is a moral duty to bring the embryos to term,” Mitchell said. “We should not generate a new human being only to abandon him or her in a petri dish or nitrogen tank. Embryos belong in uteruses.”
Southern Baptists believe life begins at conception rather than birth.
But the Israeli model legislation seems to be prevailing in Ireland. The Irish legislation recognizes the “BioWill” formulated by Israeli lawyer Irit Rosenblum, expert in reproductive law and the founder of New Family, the family-rights advocacy group.
The BioWill is a legal innovation by Rosenblum that documents anyone’s desire for use or disposal of their sperm, ova or embryos – in case of death, incapacitation or infertility – that enables people to have children in ways once inconceivable or illegal.
The legislation refers to three legal issues regarding Assisted Reproductive Technology laws, the most significant being posthumous conception.
Ireland is trying to provide clear guidelines that describe when children can be conceived after the death of a parent. The bill allows egg and sperm donation in most circumstances as well as altruistic surrogacy – where a woman does not profit from carrying another person’s pregnancy.
According to the new bill, in order to use the gamete, the “deceased person must provide his or her consent.” The bill requires the deceased to have specifically consented, while still alive, to have their gametes being used to create life posthumously.
Ireland’s official publication regarding the bill says: “The number of people accessing assisted human reproduction treatments and services in Ireland is increasing. However, the provision of these services remains largely unregulated, which means that individuals are availing of often complex and sometimes risky procedures in a legal vacuum.
“This legal vacuum has significant consequences … the general public … have a legitimate expectation that all AHR [assisted human reproduction] practices and related research is regulated and carefully monitored,” says the publication.
With this bill, Rosenblum says that Ireland has become a pioneer in the field.
Rosenblum said, “This is revolutionary legislation that for the first time will regulate the [deceased’s] rights for continuity. This is a basic right that shouldn’t be up to courts, but regulated by law.”
About a dozen BioWills are currently being implemented globally.