Ireland’s recent move would break with prevailing approaches to issue, which are basically either to prohibit it or deal with it on an ad hoc basis.
An Israeli lawyer has used her innovative “Biological Will” to convince Ireland to become the first European country to initiate legislation allowing deceased persons to be recognized legally as parents regarding posthumous conception.
Ireland’s recent move would break with prevailing approaches to issue, which are basically either to prohibit it or deal with it on an ad hoc basis.
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 the their gametes being used to create life posthumously.
Ireland’s official publication regarding the bill says: “The number of people accessing assisted human reproduction (AHR) 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 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.”
She explained that the BioWill initiative broke nature’s boundaries to make this new paradigm regarding family a reality.
Rosenblum got involved with the Irish legislation as part of an international network of lawyers working on fertility-law issues.
In the US, there is no specific legislation about the BioWill, but post-death reproduction is permitted when specific consent is in place. However, other countries, like France, forbid posthumous conception altogether. In most nations, children do not inherit legal rights or obligations related to “parents” who died more than 300 days before they were born.
In Israel, Rosenblum fought for nearly a decade to convince the attorney-general’s office to permit using the BioWill for IDF soldier Keivan Cohen, killed in Gaza in 2002. On November 25, 2013, Cohen’s child was born, eleven years after his death.
Israel’s situation is complex, since the country is very liberal about funding creative, modern ways to give birth to children, but still weighs in on specific scenarios.
In 2011, the world had its first case of posthumous maternity when a child was born to a surrogate mother from the frozen embryo created by his parents before his mother succumbed to cancer.
In May 2013, three babies were born to single mothers through the BioWill, years after their father’s death.
Rosenblum has also won other major court rulings on related issues, as recently as 2017.
About a dozen BioWills are currently being implemented globally.
As reported by The Jerusalem Post