Should people be able to use the sperm or eggs of their dead partner?

Mother and baby.
Mother and baby. Photo: Louise Kennerley

The offsrpring: Damian Adams

Simplistically, creating a child between a loving couple is an expression of their love. By extrapolation, when a partner passes away before conception, but had gametes stored, the creation of that child posthumously is still an expression of that love. Sounds like a happy ending from an adult-centric perspective. What if we analyse the situation from a child-centric perspective?

What occurs as a result of posthumous conception is a deliberate and preplanned deprivation of a meaningful relationship that that child should have had. Such situations do occur, such as when one of the parents dies, or abandons the child and parental responsibilities. As a society we recognise the loss incurred to that child as a result. However, by sanctioning and condoning posthumous conception we are making a statement that this loss is acceptable provided it was intentionally induced.

Research data from donor-conceived people in loving homes (after all, they were wanted, too, and their parents also went to extreme lengths) shows a significant proportion still want to know, meet and have a relationship with their donor. It is clear that their progenitor has meaning to them. Not only is it a matter of kinship but also of identity. Without having one of the mirrors of themselves that they see in their genetic parents, there is the potential they will have trouble forming their identity.

Sociological data shows that children growing up in fatherless or motherless households have myriad problems such as increased promiscuity, teenage pregnancy, imprisonment, substance abuse and poorer educational outcomes. This is not to say that these things will occur, rather that they occur at higher incidences than in the two-parent scenario. This does not take into account how the child may feel about being created from a deceased person. Some donor-conceived people already report feeling like an experiment and having trouble dealing with their artificial conception.

In a world where adults seem able to obtain anything they want, is it ethically sound to presume our desire and love for a child is so great that it will automatically ameliorate any negative consequences the decision has on the child?

Just as there are offspring who are traumatised by their donor conception, there are others who are happy. Similarly, I would not want to have been conceived from the gametes of a person who has died, while others may be fine with that. But just because a proportion of outcomes are positive does not provide ethical or moral grounds to justify negative outcomes. The end should never justify the means.

Damian Adams is a medical research scientist who was donor-conceived.

The Ethicist: Chris Meney

Sperm and eggs are more significant than other tissue types because they can be used for reproduction. But they are not human beings. Human embryos, however, require only nurturing and protection to continue their life journey and are in every sense human beings. They possess equal and inalienable rights.


Whether or not our dead bodies will be treated in accordance with our wishes after death can affect us in life. But surviving spouses or partners can have competing interests in sometimes wanting to have a child by whatever means. The use of gametes from a dead partner is not the same as organ donation since it involves the creation of a new human being related to the deceased. A person's desire to have children with someone ceases when they are dead. Indeed, sperm or egg retrieval cannot be just about satisfying the desires of a surviving partner.

Even if evidence of consent exists, autonomy is still a bounded liberty. While our right not to have our dead bodies interfered with is nearly absolute, the positive right to demand whatever we want, including a child by whatever means, is not. This is because children have rights too. For example, we should not be intentionally creating children who will not have a relationship with and be raised by their biological father. A child also deserves respect in how they are brought into being. The sexual act of love between committed, loving spouses is the only form of procreation that fully respects the dignity of a child. Having a child is a profoundly personal act, and not simply a biological one. Parents are called to give children not only life, but their time, attention and love.

As embryos are human beings we should not be creating and freezing them or using them as commodities to satisfy the wishes of others. Where such human beings already exist and are the offspring of a surviving widow, physicians and others should continue to act in the embryonic person's interests. Some argue this could involve the rescue of the embryo and implantation in his or her mother's womb. Others maintain that to further instrumentalise a human being in this way is an additional affront to their dignity.

Chris Meney is the director of the Life, Marriage and Family Centre in the Catholic Archdiocese of Sydney.

The Doctor: Ppeter Illingworth

Every couple planning fertility treatment considers this proposition very carefully. In my experience, most couples reach the view - regardless of their faith or ethnic background - that attempting conception after the death of the male partner (the female partner is obviously much more complex) is something for which they would like to make provision, should the circumstance arise.

Consent of both partners is clearly critical. It cannot be assumed that, because two people are in an apparently loving relationship, that the man or woman involved would necessarily be willing for his/her partner to have their child after their death. For instance, while most men storing their sperm will willingly give consent for their partner to use their sperm, this is certainly not universal. Many men, despite a close relationship with their partner, do not want their sperm to be used in this circumstance, and clear evidence of the prior consent of the deceased person is therefore essential.

The major concern is the future welfare of the child. It has been argued that the healthy emotional development of a child is dependent on having both a live mother and a live father. However, in modern Australia, we understand and accept other structures for families, including same-sex couples and single mothers by choice. If one looks beyond the conservative preconceptions, there is now an abundant body of objective psychological evidence to demonstrate that the emotional and intellectual development of children brought up in these different family structures is no different from their peers. There is no reason to think that the development of a child whose father died before their birth would be any different.

The distress that has been experienced by donor-conceived individuals at being unable to identify their genetic parents is recognised throughout Australia. However, the sad legacy of anonymous sperm donation is a poor parallel for the planned conception of a child from the egg and sperm of their two loving parents.

A sense of perspective is needed. These traumatic situations are rare and even when they do occur, the widow, once she has overcome the grief of such a terrible event, will often reflect further and decide not to proceed. We know, for instance, that only 7 per cent of banked sperm samples are ever used.

In the absence, however, of any real evidence of serious harm for the future welfare of the child, I would urge a compassionate approach: to allow people the freedom to make deeply personal decisions in harrowing circumstances.

Associate Professor Peter Illingworth is the medical director of IVF Australia.

The Researcher: Jenni Millbank

If asked about whether children should be conceived using the gametes of someone who has died, many people would instinctively answer: No. It seems odd, even unnatural, to form a family in this way. A common objection is that it is not in the best interests of the child if they can never know one genetic parent. However, ask the women most concerned with this kind of decision, the ones directly affected by law and policy about assisted reproduction, and the answer is different.

In research I am conducting with Isabel Karpin and Anita Stuhmcke at UTS on assisted reproduction (, we surveyed and interviewed more than 300 people, mostly women, who did IVF and have frozen embryos. We asked them whether they would consider using a stored embryo after a partner's death to conceive a child: 80 per cent said yes. Not that they would definitely want to do so, but that they would consider it. Some had discussed it with their partner and signed a consent form in advance providing for such outcome, but many had not. Yet most felt it was the surviving partner's decision to make. It was neither the clinic's decision, nor the deceased partner's family, and it definitely was not up to the government to set a general rule. To paraphrase English family law scholar Alison Diduck, this finding confirms that the everyday families we live with and the family ideals we live by are very different things.

The decision about whether, when and with whom to form a family is one of the most important, and most intimate, decisions any of us will have to make. It is a decision we each must make for ourselves. For the women we interviewed, whether they would continue trying to conceive without a partner depended on a lot of factors: did they have enough money, emotional support, housing and, most importantly, how old they were at the time. Were they likely to have any other opportunity to have children, or was this it? Many women who already had a child, but had not yet completed their families, felt the benefit and companionship of siblings outweighed any negative in having a child without a father.

So if we ask instead, should law prohibit posthumous reproduction, the answer is definitely no. Child's best interests arguments are painfully spurious in this context, as they result in the mandated non-existence of the very child whose interests are so vigorously protected in the abstract. Posthumous reproduction will be pursued only by the very few who find themselves in extraordinary circumstances. Only they can know what is best for themselves and their (potential) children.

Jenni Millbank is professor of law at UTS and a researcher in family law and assisted reproduction.