The Health (Assisted Human Reproduction) Bill 2022: A Review of the Proposals to Regulate Posthumous Conception in Ireland

• Date: 01 January 2023

74

e Health (Assisted Human Reproduction)

Bill 2022: A Review of the Proposals to Regulate

Posthumous Conception in Ireland

CLAIRE MGOVERN*

Introduction

On 28 February 2022, the Irish Minister of Health received cabinet approval for

the publication of the Health (Assisted Human Reproduction) Bill 20221 (the

“2022 Bill”). e 2022 Bill is the dra act of legislation which follows the pre-

legislative scrutiny of the General Scheme of the Assisted Human Reproduction

Bill 2017.2 e 2022 Bill is extensive. It outlines revised proposals for regulating

various aspects of articial reproductive technology in Ireland, including gamete

and embryo donation,3 surr og acy,4 pre-implantation genetic diagnosis,5 and

posthumous conception.6 Posthumous conception is a novel practice. It is a

conscious attempt to conceive a child and procure a pregnancy aer the death of

one (or perhaps both) of the child’s genetic parents.7 e procedure involves using

frozen gametes or embryos in assisted human reproduction, with conception

occurring aer the death of the person who is the source of the gamete.8 Following

publication of the 2022 Bill, media outlets and commentators have focused almost

exclusively on the complexities of regulating international and domestic surrogacy.9

* is paper stems from research completed during the course of the author’s PhD at Maynooth

University’s School of Law and Criminology. e author acknowledges Maynooth University for

generously funding her PhD research through a John and Pat Hume Scholarship.

1 Health (Assisted Human Reproduction) Bill 2022.

2 Joint Committee on Health, Report on Pre-Legislative Scrutiny of the General Scheme of the Assisted

Human Reproduction Bill (32H0027, 2019).

3 Health (Assisted Human Reproduction Bill) 2022, pt 3.

4 ibid pt 7.

5 ibid pt 6.

6 ibid pt 5.

7 Gulham Bahadur, ‘Death and Conception’ (2002) 17(10) Human Reproduction 2769, 2769; John

Robertson, ‘Posthumous Reproduction’ (1993) 69 Indiana Law Review 1027, 1030.

8 ibid.

9 See for example: Cate McCurry, ‘Proposed Surrogacy Laws ‘Does Not Create Legal Recognition

of Child and Parents’ e Irish Independent (Dublin, 21 April 2022)

ie/breaking-news/irish-news/proposed-surrogacy-laws-does-not-create-legal-recognition-of-child-

and-parents-41574404.html> accessed 10 June 2023; Brian Tobin, ‘Proposed Laws Discourage

Surrogacy Arrangements Here’ e Irish Examiner (Cork, 16 March 2022),

irishexaminer.com/opinion/commentanalysis/arid-40829528.html> accessed 10 June 2023; Fiona

Duy, ‘Will e Law Catch Up With Need in Ireland?’ (Bionews, 30 August 2022),

progress.org.uk/will-the-law-catch-up-with-need-in-ireland/> accessed 10 June 2023.

e Health (Assisted Human Reproduction) Bill 2022 75

is has resulted in little attention being directed towards other aspects of the dra

legislation, including the proposals to regulate posthumous conception. As such,

the purpose of this piece is to critically evaluate the proposed law for regulating

posthumous conception in Ireland. It compares the provisions of the 2022 Bill with

existing approaches to regulating posthumous conception in other jurisdictions,

and critiques them in light of the case law and commentary which has emerged

on this issue. Ultimately, this paper demonstrates that although there are several

positive aspects to the proposals for regulating posthumous conception in Ireland,

there remain several ways in which the 2022 Bill can be further improved to more

eectively respond to the technology.

I. Background to the Regulation of Posthumous Conception

inIreland

e articial reproductive technology (“ART ”) used to facilitate posthumous

conception has been available in Ireland since 1987. Despite this, there is still

no legal regulation on the use of ART in this jurisdiction.10 e only available

guidance for physicians on assisted reproduction, including posthumous

conception in Ireland is the Guide to Professional Conduct and Ethics for Registered

Medical Practitioners (Amended) (2019) issued by the Irish Medical Council.11 e

guidelines are considerably brief with regard to the provision of ART services. ey

merely state that ART should only be carried out by suitably qualied professionals

when no other treatment is likely to be eective.12 e guidelines also provide that

those undergoing fertility treatment receive the appropriate counselling13 and

further recommend that clinics ensure strict oversight in the provision of donor

services.14 Outside of these professional guidelines, clinicians have no direction

on the permissibility of specic ART procedures. e only prohibited activities

outlined are bans on reproductive cloning and creating life for the purposes of

experimentation.15 e Children and Family Relationship Act 2015 is also of

some relevance to ART in Ireland. e purpose of the Act is to address the needs

of children living in diverse family types. In the context of ART, the Act provides

for parentage in cases of donor-assisted human reproduction and permits a person

to be regarded as the second parent of a donor-conceived child under certain

circumstances.16 However the Act does not refer to the permissibility of specic

10 Jill Allison, ‘Enduring Politics: e Culture of Obstacles in Legislating for Assisted Reproduction

Technologies in Ireland’ (2016) 3 Reproductive Biomedicine and Society Online 134, 135.

11 Irish Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners

(Amended) (8th edn, 2019) para 1.1.

12 ibid para 47.1 and para 47.2.

13 ibid para 47.1.

14 ibid para 47.3.

15 ibid para 47.4.

16 Children and Family Relationships Act 2015, ss 4–21; these sections set out the parentage rules

76  

ART procedures and there are no provisions within the Act either permitting or

banning ART practices such as posthumous conception.17 us, in the absence of

legislation or guidelines in its regard, posthumous conception is essentially legal in

Ireland and can be facilitated.18

In 2000, the Commission on Assisted Human Reproduction was established

by the then Minister of Health and Children, Micheál Martin. e role of

the Commission was to study the ethical, social and legal implications arising

from developments in assisted human reproduction and to prepare a report

which considered how these novel practices might be regulated.19 As part of the

consultation process, the Commission established a number of working groups,

held twenty-three plenary meetings and a public conference. is led to the

publication of the Report of the Commission on Assisted Human Reproduction in

2005 which made forty recommendations for the regulation of ART in Ireland.20

e report deals very briey with posthumous conception. e Commission simply

highlighted that Irish succession law does not currently provide for children born

ten months aer the death of their father.21 Moreover, the Commission reported

that several states which had been examined during the consultation did not allow

posthumous conception, and those that did permit the practice did so only when

there was pre-mortem written consent from the deceased.22

Despite the Commission’s report in 2005, progress in relation to regulating ART in

Ireland has been signicantly slow. It was not until July 2017 that the Government

announced the General Scheme of the Assisted Human Reproduction Bill 2017

(the “General Scheme”) which set out proposed legislation for the regulation of

various aspects of ART, including posthumous conception.23 e General Scheme’s

proposals for regulating posthumous conception mirrored the prevailing approach

adopted by jurisdictions which permit the practice, and provided that posthumous

conception can be facilitated subject to strict consent requirements.24 Express

pre-mortem written consent was required from a deceased man or woman prior

to both the retrieval and use of his or her gametes posthumously.25 However,

that will apply where a child is born through donor assisted human reproduction. Consent of the

birth mother is required for someone to be regarded as the second parent of a child born through

donor assisted human reproduction: Children and Family Relationships Act 2015, s 5.

17 Children and Family Relationships Act 2015.

18 Kathryn O’Sullivan, ‘Ireland Needs to Regulate for Posthumous Conception’ e Irish Times

(Dublin, 9 March 2021) imes.com/opinion/ireland-needs-to-regulate-for-

posthumous-conception-1.4504616> accessed 10 June 2023.

19 Commission on Assisted Human Reproduction, Report of the Commission on Assisted Human

Reproduction (2005) v.

20 ibid x–xviii.

21 ibid 14.

22 ibid 95–96.

23 Department of Health, e General Scheme of the Assisted Human Reproduction Bill 2017 (2017),

Part 4.

24 ibid Part 4.

25 ibid Part 4, Head 24, s 1(a) and Head 25, s 1(a).

e Health (Assisted Human Reproduction) Bill 2022 77

despite providing for the retrieval and use of both male and female gametes in

posthumous conception, subsequent wording used in the General Scheme required

that the surviving partner carry the pregnancy themselves.26 Given that most male

surviving partners cannot naturally carry a pregnancy, and would require a surrogate

to reproduce, the proposals therefore precluded the majority of male identifying

surviving partners from using the technology.27 e General Scheme also provided

that surviving partners receive mandatory counselling on posthumous conception,28

and required a waiting period of one year following the deceased’s death before

treatment could commence.29 Furthermore, the proposals addressed the legal

parentage and inheritance rights of posthumously born children. In this regard, the

Scheme permitted the deceased to be recognised as the resulting child’s legal parent

so long as the child was born within thirty-six months of the deceased’s death.30

Following publication of the General Scheme in 2017, the Joint Oireachtas

Committee on Health carried out the pre-legislative scrutiny of the bill. is was

conducted by holding a series a meetings with public ocials, patient advocates and

representatives from ART treatment providers.31 e Committee also considered

several in-depth written opinions which had been submitted by various experts

and stakeholders in the eld.32 e subsequent report identied some of the overt

issues with the General Scheme’s proposals for regulating posthumous conception.

e points raised included issues regarding the exclusion of male surviving partners

from accessing posthumous conception treatment, and objections to the thirty-

six month cut o point for the posthumously born child to be regarded as the

deceased’s legal ospring. e Committee recommended that the wording of these

provisions be reconsidered before the nal publication of the Act.33 Almost two and

26 ibid Part 4, Head 24, s 1(b).

27 ere could have potentially been a small class of male identifying surviving partners who could

have used the technology despite the wording used in the General Scheme, given that the Gender

Recognition Act 2015 does not require sterilisation to apply for a gender recognition certicate:

Gender Recognition Act 2015, s 10. is point regarding the gender specic language used in

the General Scheme was also raised by several commentators in their submissions to the Joint

Oireachtas Committee on the General Scheme: Andrea Mulligan, ‘Submission to Joint Committee

on Health on the General Scheme of the Assisted Human Reproduction Bill 2017’ (23 February

2018) 11; Fiona Duy, ‘Submission to Joint Committee on Health on the General Scheme of the

Assisted Human Reproduction Bill 2017’ 70; e Institute of Obstetricians and Gynaecologists,

‘Submission on the General Scheme of the Assisted Human Reproduction Bill 2017’ 140.

Submissions from stakeholders to the Joint Oireachtas Committee on the General Scheme are

available at: https://data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_

health/submissions/2019/2019-07-10_submissions-report-on-pre-legislative-scrutiny-of-the-

general-scheme-of-the-assisted-human-reproduction-bill_en.pdf (accessed 10 June 2023).

28 G eneral Scheme of the Assisted Human Reproduction Bill 2017, Part 4, Head 24, s 1(c).

29 ibid Part 4, Head 24, s 1(d).

30 is would have had the practical eect of entitling the resulting child to inherit from the deceased’s

estate provided the child was born within this 36 month timeframe; ibid, Part 4, Head 27.

31 Joint Committee on Health, (n 2) 3.

32 ibid ; access details for these written submissions can be found at n 27.

33 Joint Committee on Health (n 2) 26.

78  

half years aer completion of the General Scheme’s pre-legislative scrutiny stage, the

Government published the long-awaited Health (Assisted Human Reproduction)

Bill 2022. e 2022 Bill outlines updated proposals for the regulation of ART in

Ireland, and contains revised provisions regarding posthumous conception.34 e

following sections consider each of these proposals, and critiques them in light of

the case law and commentary which has emerged on this issue.

II. Proposals for Regulating Posthumous Conception in Ireland

Parts 2 and 5 of the 2022 Bill deal with posthumous conception, which is referred

to throughout as ‘posthumous assisted human reproduction’ (‘PAHR ’).35 Section

41 denes PAHR as ‘assisted human reproduction treatment involving the use

of the gametes of a deceased person, or of an embryo created by the use of such

gametes, subsequent to the death of such person’.36 ere is no statutory denition

of ‘death’ in Ireland and the 2022 Bill does not provide one. However, it is likely

that for the purposes of facilitating PAHR, death will be interpreted as a clinical

determination of either cardiac, or brain stem death.37

Part 2 of the 2022 Bill provides that female surviving partners can avail of PAHR

treatment subject to valid consent from the deceased.38 is includes providing for

PAHR where it involves the posthumous retrieval of sperm from the deceased.39 All

relevant parties must undergo professional counselling,40 and the surviving partner

is required to wait one-year following the deceased’s death before PAHR treatment

can begin.41 e provisions further provide for the deceased to be recognised as

the legal parent of any child born through PAHR so long as all relevant consent

conditions have been met.42 Overall, there have been some slight language

clarications and important amendments made. ese will have signicant

implications for the availability of PAHR in Ireland, and are important in terms of

minimising the potential harm inicted by the technology.

34 Health (Assisted Human Reproduction) Bill 2022, pt 2 and pt 5.

35 ibid.

36 ibid s 41.

37 is presumption is based on Head 8(6) of the General Scheme of the Human Tissue

(Transplantation, Post-Mortem, Anatomical Examination and Public Display) Bill 2018

which states that it is intended for a person’s organs to be donated following either a clinical

determination of cardiac, or brain stem death. Furthermore, both cardiac death and brain stem

death have been deemed by the Intensive Care Society of Ireland as ‘custom and practice’ for a

medical determination of death in Ireland: Intensive Care Society of Ireland, Diagnosis of Brain

Death in Adults; Guidelines (Intensive Care Society of Ireland, 2020) 2.

38 Health (Assisted Human Reproduction) Bill 2022, s 22(2)(c).

39 ibid s 22(2)(d ).

40 ibid s 17.

41 ibid s 42(1).

42 ibid s 22(e).

e Health (Assisted Human Reproduction) Bill 2022 79

A. Express Consent

e formalities for valid consent are outlined in sections 18 and 22. Consent to

PAHR must be signed in writing by the deceased.43 It must be furnished voluntarily,

and at a time in which the deceased had full capacity.44 Furthermore, the consent

must indicate the name of the deceased’s surviving partner who is permitted to use

the gametes or embryos in PAHR, and must specify the treatments in which the

gametes or embryos are permitted to be used.45 e deceased must also conrm

that they have been provided with full information and have received counselling

on the implications of PAHR.46

Measures that require pre-mortem written consent from the deceased are not

uncommon. is is the prevailing position adopted by jurisdictions when regulating

PAHR and is required by legislation in the United Kingdom,47 Canada48 and the

Australian states of Victoria49 and New South Wales.50 It is also the recommended

standard of consent for PAHR that has been issued in the ethical opinions of

the European Society of Human Reproduction and the American Society for

Reproductive Medicine.51

Express consent is the most ideal form of consent for PAHR. However, as several

commentators have highlighted, there are several practical problems with express

consent models.52 Firstly, the reality is that most requests for PAHR come from

applicants whose partners have died suddenly, and have not stored gametes

during their lifetime.53 Indeed, this is evidenced by the bulk of case law on this

issue, whereby surviving partners seek court orders authorising the retrieval and/

or continued storage and use of the deceased’s gametes in the absence of their

43 ibid s 18(3).

44 ibid.

45 ibid s 22(c).

46 ibid s 22(2)(a)–( b).

47 Human Fertilisation and Embryology Act 1990, sch 3, s 5(1).

48 Assisted Human Reproduction Act 2004, s 8(1).

49 Assisted Reproductive Treatment Act 2008, s 46(b).

50 Assisted Reproductive Technology Act 2007, s 23.

51 European Society of Human Reproduction and Embryology Task Force on Ethics and Law,

including G Pennings and others, ‘ESHRE Task Force on Ethics and Law 11: Posthumous

Assisted Reproduction’ (2006) 21(12) Human Reproduction 3050, 3053; Ethics Committee of

the American Society for Reproductive Medicine, ‘Posthumous Retrieval and Use of Gametes or

Embryos: An Ethics Committee Opinion’ (2018) Fertility and Sterility 1, 4.

52 Nicola Peart, ‘Life Beyond Death: Regulating Posthumous Reproduction in New Zealand’ (2015)

46(3) Victoria University of Wellington Law Review 725, 747; Kelton Tremellen and Julian

Savulescu, ‘A Discussion Supporting Presumed Consent for Posthumous Sperm Procurement

and Conception’ (2015) 30 Reproductive Biomedicine Online 6, 6; Neil Maddox, ‘Children of the

Dead: Posthumous Conception, Critical Interests and Consent’ (2019) 27 Journal of Law and

Medicine 1, 2.

53 ibid.

80  

expressed written consent.54 Tremellen and Savulescu observe that healthy people

of reproductive age do not typically contemplate their death, let alone consider the

prospect of PAHR. e authors contend that in cases of sudden or unanticipated

death, the deceased is unlikely to have discussed their wishes regarding PAHR

with their partner, and is even less likely to have recorded their wishes in a written

document.55 Certainly, written consent to PAHR may be present in cases where the

deceased has cryogenically stored gametes or embr yos during their lifetime – given

that it is very oen standard protocol for the source of frozen gametes to indicate

their wishes as to the fate of the gametes upon death in the storage consent forms.56

However, in cases where the deceased has not previously stored their gametes, and

PAHR treatment involves the retrieval of gametes post-mortem, it is highly unlikely

that the deceased will have provided their consent in the manner which is currently

required by the 2022 Bill.57 It is on this basis that Maddox suggests that formal

written consent requirements for PAHR, such as those proposed for Ireland, are

likely to bar the very class of applicants who might seek to use the technology.58

Express consent models have also been criticised on the basis that they do not

account for instances of human error or oversight, whereby storage forms can

either be lost or lled out incorrectly.59 is was the case in the English application

of R (on the Application of Mr. and Mrs. M) v Human Fertilisation and Embryology

Authority.60 Here, the deceased’s surviving parents were prevented from using their

daughter’s cryopreserved gametes in PAHR in the United Kingdom (UK) due to

an error in the gamete storage form which did not indicate that the deceased had

wished for her gametes to be used in conjunction with donor sperm.61 Considerable

evidence was provided to the court indicating that the deceased had specically

wished for her eggs to be used posthumously by her parents.62 Moreover, as the

deceased was single at the time of harvesting her gametes, it had always been

intended that should her gametes be used in PAHR, this would be in conjunction

with donor sperm.63 Ultimately, with strict written consent requirements such as

54 See for example: R v Human Fertilisation and Embryology Authority ex p Blood [1997] EWCA Civ

946; Re Gray [2000] QSC 390; Y v Austin Health [2005] VSC 427; Re Denman [2004] QSC 70;

Re Edward’s Estate [2011] 4 ASTLR 392; Re H, AE [2013] SASC 196; Re Cresswell [2018] QSC

142; Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231.

55 Tremellen and Savulescu (n 52) 7.

56 Maddox (n 52) 2.

57 Peart (n 52) 747; Tremellen and Savulescu (n 52) 6.

58 Neil Maddox, ‘Consent and the Regulation of Posthumous Conception’ (2019) Maynooth

University Research Archive Library, Item ID 10930, 23

ie/10930/> (accessed 10 June 2023).

59 Frederick Kroon, ‘Presuming Consent in the Ethics of Posthumous Sperm Procurement and

Conception’ (2015) 1 Reproductive Biomedicine Society Online 123, 124; R (on the application of

Mr. & Mrs. M) v Human Fertilisation and Embryology Authority [2016] EWCA Civ 611.

60 R (on the application of Mr. & Mrs.M) v Human Fertilisation and Embryology Authority (n 59).

61 ibid [10].

62 ibid para s [12]–[14].

63 ibid.

e Health (Assisted Human Reproduction) Bill 2022 81

those proposed for Ireland, there is always the risk that the requesting party will be

prevented from using the deceased’s gametes or embryos in PAHR even when there

is overwhelming evidence that they would have consented to the procedure.64

ere are of course less restrictive regimes in existence for regulating PAHR. is

is the case in Israel, Belgium, Greece and in several parts of the United States,

where it is possible for consent to be either inferred or presumed on behalf of the

deceased.65 An inferred or presumed consent model for PAHR recognises that the

strict formalities of written consent will rarely be met in practice. us, the absence

of express consent from the deceased will not act as an outright bar to proceeding

with treatment.

With inferred consent, the default position is that the deceased has not consented

unless this can be proven otherwise. e burden falls on those who seek to use

the gametes in PAHR ie the surviving partner or extended family - to produce

circumstantial evidence which can be used to infer that the deceased would have

consented in the particular case.66 ere are a range of factors considered when

inferring consent, including the deceased’s previous statements, their goals, values,

religious and cultural beliefs etc.67 Courts have also taken into consideration the

deceased’s future plans for childbearing, and the views of their surviving family

when considering the request.68

Alternatively, with presumed consent, the default position is to presume that the

deceased has consented to PAHR unless this can be displaced.69 Presumed consent

works in the same way as an opt-out system. It allows the deceased to opt-out of

PAHR during their lifetime. However, in the absence of an expressed or inferred

refusal from the deceased, treatment is permitted on the basis of the deceased’s

presumed consent.70 is presumption can of course, be rebutted. However, the

burden falls on those who seek to challenge the application to produce sucient

evidence as to the deceased’s refusal to consent.71

e more permissive models of consent have also been criticised in the literature.

is is primarily based on the argument that proceeding with PAHR without

64 ibid.

65 Gulham Bahadur, ‘Posthumous Assisted Reproduction: Cancer Patients, Potential Cases,

Counselling and Consent’ (1996) 11(2) Human Reproduction 2573, 2575.

66 Katheryn D Katz, ‘Parenthood from the Grave: Protocols for Retrieving and Utilizing Gametes

from the Dead or Dying’ (2006) University of Chicago Legal Forum 289, 304–305.

67 Jason D Hans, ‘Attitudes toward posthumous harvesting and reproduction’ (2008) 32(9) Death

Studies 837, 848; Carson Strong, Jerey R Gingrich and William H Kutteh, ‘Ethics of Sperm

Retrieval Aer Death or Persistent Vegetative State’ (2000) 14(4) Human Reproduction 739, 743.

68 Re Lee (Deceased) and Long (Applicant) [2017] NZHC 3263; Re Cresswell (n 54).

69 Hilary Young, ‘Presuming Consent to Posthumous Reproduction’ (2014) 27 Journal of Law and

Health 68, 71.

70 ibid 72; Tremellen and Savulescu (n 52) 11.

71 Young (n 69) 71.

82  

express consent from the deceased breaches their autonomy.72 In this context,

consent is being used to protect the choices of the deceased. It is argued that in the

absence of consent, it is impossible to ascertain with certainty the kinds of bodily

interference that the deceased would have deemed appropriate, and whether or

not they would have chosen to become a genetic parent.73 However, respecting the

autonomy of the deceased in PAHR is complicated by the fact that the deceased is

dead, and is no longer able to make autonomous choices.74 us, when consent is

used as a means of protecting the deceased’s autonomy, the level of consent which

is necessary is dependent on the degree of autonomy which is attributed to the

deceased. Indeed, the argument that express consent is necessary to protect the

deceased’s autonomy is only valid if one accepts the position that the dead have

autonomy which can be violated in the rst place.

For example, those who support presumed consent policies for PAHR generally

ground their argument on the view that the dead do not have autonomy.75 is

is the position which is convincingly argued by Young.76 Young claims that

proceeding with PAHR without consent from the deceased will do no harm to

them.77 However, she recognises that still living people can have interests in PAHR.

For example, the deceased’s surviving spouse or family can have interests in using

the deceased’s gametes posthumously, alongside any interests of living people in

general regarding the treatment of their bodies and/or becoming parents aer

death.78

On the other hand, if one does regard the dead to have a degree of autonomy,

then a standard of consent from the deceased will be necessary when regulating

PAHR to protect this. However, the argument that express consent is necessary to

protect the deceased’s autonomy is only valid if one adopts a narrow interpretation

72 Gulham Bahadur, ‘Ethical Challenges in Reproductive Medicine: Posthumous Reproduction’

(2004) 1266 International Congress Series 295, 298; Anne R Schi, ‘Posthumous Conception

and the Need for Consent’ (1999) 170 Medical Journal of Australia 53, at 54; Katz (n 66) 301.

73 Shelly Simana, ‘Creating Life Aer Death: Should Posthumous Reproduction be Legally

Permissible Without the Deceased’s Prior Consent?’ (2018) 5(2) Journal of Law and the

Biosciences 329, 334; Schi (n 72).

74 Simona Giordano, ‘Is the Body a Republic’ (2005) 31 Journal of Medical Ethics 470, 471; John

Harris, ‘Law and e Regulation of Retained Organs: e Ethical Issues’ (2002) 22(2)Legal

Studies 527.

75 Young (n 69); Tremellen and Savulescu (n 52); Malcolm Parker, ‘Response to Orr and Siegler—

Collective Intentionality and Procreative Desires: e Permissible View on Consent to Posthumous

Conception’ (2004) 30 Journal of Medical Ethics 389.

76 Young (n 69), 97.

77 ibid.

78 ibid. L ikewise, Tremellen and Savulescu base their argument for presumed consent on the welfare

of still living people. ey claim that presumed consent acts in accordance with the interests of

the deceased’s surviving partner and/or family who seek to use PAHR, and also adheres to the

autonomy that the deceased had while they were alive by giving them the option to opt-out should

they wish: Kelton Tremellen and Julian Savulescu, ‘Posthumous Conception by Presumed Consent.

A Pragmatic Position for a Rare but Ethically Challenging Dilemma’ (2016) 3 Reproductive

Biomedicine and Society Online 26.

e Health (Assisted Human Reproduction) Bill 2022 83

of autonomy as simply protecting a person’s expressed choices. ere are varying

accounts of autonomy in the literature and scholars have identied several

underlying values of autonomy which go beyond merely respecting choice. ese

include protecting personal wellbeing and allowing a person to lead an authentic

life.79 An inferred consent approach to PAHR adheres to these alternative values

of autonomy. It suggests that the unique values and wishes of the deceased will

not always be served by relying exclusively on their expressed consent. Rather, as

Maddox observes, the deceased’s autonomy can be respected by looking at what

they would have wanted.80 In this way, inferring the wishes of the deceased respects

their autonomy by recognising them as an authentic individual and the interests

that they might have had in reproducing.81 An inferred consent model also adheres

to relational accounts of autonomy advanced in the literature. Relational autonomy

suggests that a person’s choices are formed and shaped as a response to their

personal relationships, culture, religion and so forth.82 Berg states that peoples’

interests are rarely self-isolated. Our choices and actions oen reect social values

which are informed by family, friends and by state agents.83 Of course, relational

autonomy, in and of itself, does not give family members the right to consent on

behalf of one another. However, by allowing the surviving partner and/or extended

family to infer consent to PAHR on the deceased’s behalf, their autonomy can be

respected based on the role that shared traditions, family and community might

have played in their everyday decision making.84

In their current format, the express consent proposals for regulating PAHR in

Ireland are too demanding, and this is particularly the case where PAHR involves

the retrieval of gametes aer death. e case law on this issue demonstrates that the

majority of requests for PAHR come from surviving partners in situations where

their partner has died suddenly, and in circumstances where the deceased has not

stored gametes during their lifetime.85 In such scenarios, it is highly unlikely that

79 Allen E Buchanan and Dan W Brock, ‘Deciding for Others’ (1986) 64(2) e Milbank uarterly

17; Allen E Buchanan and Dan W Brock, ‘Deciding for Others: e Ethics of Surrogate

Decision Making’ (Cambridge: Cambridge University Press, 1990); David H Molyneux, ‘Should

Healthcare Professionals Respect Autonomy Just Because It Promotes Welfare?’ (2009) 35(4)

Journal of Medical Ethics 245; Ronald Dworkin, ‘Autonomy and the Demented Self ’ (1986) 64

e Milbank uarterly 4.

80 Maddox (n 58) 4.

81 Strong, Gingrich and Kutteh (n 67) 259; Sarah Jones and Grant Gillet, ‘Posthumous Reproduction:

Consent and its Limitations’ (2008) 16 Journal of Law and Medicine 279, 287.

82 John Christman, ‘Relational Autonomy, Liberal Individualism, and the Social Constitution of

Selves’ (2003) 117(1/2) Philosophical Studies: An International Journal for Philosophy in the

Analytic – Selected Papers From the American Philosophical Association, Pacic Division, 2003

Meeting 143; Jennifer K Walter and Lanie Friedman-Ross, ‘Relational Autonomy: Moving Beyond

the Limits of Isolated Individualism’ (2013) 133 American Academy of Pediatrics 16.

83 Jessica W Berg and others, Informed Consent: Legal eory and Clinical Practice (2nd edn, Oxford:

Oxford University Press, 2001) 33.

84 Christman (n 82) 143.

85 S ee case law cited above at n 54; see also, Maddox (n 58) 9.

84  

the deceased will have provided their valid consent to PAHR in the manner which

is currently required by the 2022 Bill.86 us, the current consent proposals for

regulating PAHR in Ireland are likely to bar the very class of applicants who might

seek to use the technology.87 On this basis, the alternative consent approaches

for regulating PAHR, such as a less onerous inferred or presumed consent policy

should be actively considered and debated by the Irish Government when deciding

how best to regulate the practice in Ireland. Indeed, these models would more

proactively deal with the circumstances in which PAHR treatment is likely to be

requested.

B. Limitations on who can access PAHR

e 2022 Bill provides that PAHR should only be facilitated when the request

for treatment is made by the deceased’s surviving partner.88 Laws that restrict

PAHR to the surviving partner are not uncommon. is is the position in Israel,

and is also recommended by guidelines that have been issued across the United

States and Australia.89 However, as it stands, the Irish proposals have the eect

of discriminating against male surviving partners. Section 41 denes ‘surviving

partner’ as ‘the surviving female spouse, female civil partner or female cohabitant

of a deceased person at the time of the person’s death’.90 is denition is

signicant, and it is now clear that PAHR will only be made available to female

surviving partners.91 is is equally the case with posthumous gamete retrieval.

us, although the 2022 Bill provides for the posthumous retrieval of sperm,92

a same-sex male surviving partner would not be entitled to request posthumous

sperm retrieval, as they do not t the statutory denition of a ‘surviving partner’.93

Furthermore, as posthumous gamete retrieval is limited to sperm, the 2022 Bill

further precludes same-sex female surviving partners from retrieving their deceased

partners gametes in this way.

86 Peart (n 52); Tremellen and Savulescu (n 52) 6; Maddox (n 58) 23.

87 ibid.

88 Health (Assisted Human Reproduction) Bill 2022, s 41.

89 Yael Hashiloni-Dolev and Silke Schicktanz, ‘A Cross-Cultural Analysis of Posthumous

Reproduction: e Signicance of the Gender and Margins-of-Life Perspectives’ (2017) 4

Reproductive Biomedicine Society Online 21, 25; Weil Cornell Medicine, ‘Guidelines on

PMSR’ (Weil Cornell Medicine Urology) mortem-Sperm-

Retrieval> accessed 10 June 2023; Australian Government National Health and Medical Research

Council, ‘Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice

and Research 2017 (amended 2023)’, para 8.22.1.

90 Health (Assisted Human Reproduction) Bill 2022, s 41.

91 ibid. e General Scheme was not fully clear in this regard. Although initially providing for the

retrieval and use of both male and female gametes in PAHR, the General Scheme later restricted

the use of gametes to the surviving partner who would carry the pregnancy: General Scheme of the

Assisted Human Reproduction Bill 2017, Part 4, Head 24, s 1(b).

92 Health (Assisted Human Reproduction) Bill 2022, s 22(2)(d).

93 ibid s 41.

e Health (Assisted Human Reproduction) Bill 2022 85

It is likely that the Government sought to conne instances of PAHR to where

the surviving partner would carry the pregnancy themselves, thereby negating the

need for a surrogate and an additional actor in the process. Indeed, this is evident

when compared to the initial wording used in the General Scheme, which stated

that PAHR should only be facilitated when the request is made by the deceased’s

surviving partner ‘who will carry the pregnancy.’94 However, this is not made

entirely clear by the wording which is used in the 2022 Bill itself. e denition

of surviving partner simply states that the surviving partner must be female.95 It

does not expressly state that the female surviving partner must carry the pregnancy

herself, and the related provisions in the 2022 Bill do not directly preclude the use of

surrogates in conjunction with PAHR.96 Ultimately, it cannot always be guaranteed

that a female surviving partner will be in a position to carry the pregnancy herself,

and there may be instances in which a female surviving partner might require

a surrogate to host the pregnancy, despite technically tting the description of a

‘surviving partner’ under the 2022 Bill. In such instances, there does not appear

to be provisions in the 2022 Bill which would prevent a female surviving partner

from applying to use a surrogate to carry the pregnancy in cases of PAHR.97 If the

intention is to keep PAHR and surrogacy separate, then this should be made clear.

Although it is likely a technicality, it seems unfounded to discriminate against male

surviving partners on this basis, particularly if it is the case that a female surviving

partner could apply to use a surrogate to host the pregnancy if required. at point

aside, like the General Scheme, the 2022 Bill continues to provide for the use of

donor gametes in PAHR, and intends to permit altruistic surrogacy.98 us, it is

not clear why male surviving partners should not be permitted to use altruistic

surrogacy in conjunction with PAHR.

Alongside the biological diculty of pursuing posthumous conception for male

surviving partners, there is also potentially gender stereotypes at play here too.

ere is a common belief that women make better parents than men. Hans and

Dooley observe that this perception has led to more positive societal attitudes

towards PAHR when the surviving partner is female.99 Indeed, this is particularly

relevant in an Irish context, given that the mothers place within the home remains

94 G eneral Scheme of the Assisted Human Reproduction Bill 2017, Part 4, Head 24, s 1(b).

95 Health (Assisted Human Reproduction Bill) 2022, s 41.

96 ibid s 22 and ss 41–42. ere would, however, be diculty for same-sex surviving partners using

surrogates in conjunction with PAHR. S 52(3)(a) requires at least one of the intending parents of a

surrogacy agreement to have a genetic link to the child. If the surviving partner is the only intended

parent, then they are required to use their own gametes to maintain a genetic link to the child.

is would prevent a same sex surviving partner whether male or female from using a surrogate in

conjunction with PAHR: I am thankful to the anonymous reviewer for bringing this point to my

attention.

97 Surrogacy is only permitted under the bill where the surrogacy agreement has been approved by

the Assisted Human Reproduction Regulatory Authority; ibid, ss 50–51.

98 ibid ss 42 and 50.

99 Jason D Hans and Brigitte Dooley, ‘Attitudes Toward Making Babies … With a Deceased Partner’s

Cryopreserved Gametes’ (2014) 38 Death Studies 571, 571–581.

86  

recognised by the Irish Constitution.100 Perspectives doubting a widower’s ability

to raise a child, however, are outdated and this has been acknowledged by the Irish

High Court. In TO’G v. AG,101 McMahon J observed that there is no dierence

in capacity for parenthood between a widow and a widower. e court accepted

that a man was just as capable of performing parental duties, forming an emotional

relationship and providing for the child.102

Ultimately, restricting the availability of PAHR to female surviving partners only

is unfortunate, and is discriminatory against male surviving partners. Indeed,

the restriction is further regrettable, given that the implications of wording the

2022 Bill in this way was highlighted by stakeholders when the General Scheme

underwent its pre-legislative scrutiny.103

C. e R etrieval of Gametes for PAHR

e 2022 Bill also provides for PAHR treatment when it involves the posthumous

retrieval of sperm.104 is provision is distinct from the General Scheme which

originally sought to regulate the posthumous retrieval of both male and female

gametes.105 However, amending the proposal in this way is not entirely unfounded,

given that posthumous gamete retrieval is signicantly more complicated when the

deceased is female.106 Without oxygen, female gametes cease to be viable for use in

assisted reproduction within a few hours of the woman’s death.107 us, to procure

viable eggs for reproduction, the woman must be kept alive by articial means for a

period of nine to ten days, in order to administer her with the necessary hormone

treatment for ovarian hyperstimulation and egg retrieval.108 Sustaining the bodily

functions of a woman aer brain death, for an extended period of time is dicult.

e process was considered in detail by the Irish High Court in the case of PP v

Heath Service Executive.109 Here, doctors provided detailed evidence to the court

100 Article 41.2.

101 TO’G v AG [1985] ILRM 61.

102 ibid.

103 Several stakeholders noted that by restricting PAHR to circumstances where the surviving

partner had to carry the pregnancy themselves, the General Scheme would discriminate against

male surviving partners. Access details to written submissions from stakeholders on the General

Scheme can be found at n 27.

104 Health (Assisted Human Reproduction) Bill 2022, s 22(2)(d).

105 General Scheme of the Assisted Human Reproduction Bill 2017, Part 4, Head 25.

106 David M Greer and others, ‘Case 21-2010: A Request for Retrieval of Oocytes from a 36-Year-

Old Woman with Anoxic Brain Injury’ (2010) 363 e New England Journal of Medicine 276,

280; Michael R Soules, ‘Commentary: Posthumous Harvesting of Gametes – A Physicians

Perspective’ (1999) 27 Journal of Law, Medicine and Ethics 362, 363; Ryan Jaslow, ‘Dead girl’s

family harvests her eggs: Was it unethical?’ (CBS News, 11 August 2011) .cbsnews.

com/news/dead-girls-family-harvests-her-eggs-was-it-unethical/> accessed 10 June 202.

107 Soules (n 106) 363.

108 Greer and others (n 106) 280.

109 [2014] IEHC 622.

e Health (Assisted Human Reproduction) Bill 2022 87

as to the realities of sustaining a pregnant woman’s treatment aer brain death.

ey claimed that the visual eects of the medical interventions required to sustain

her body caused distress to her family and undermined her dignity in death. ey

claimed that they could not justify continuing her treatment on medical or ethical

grounds, with one doctor even describing the process as ‘verging on grotesque’.110

us, although it is technically feasible to retrieve female gametes in this way, due

to both the short time frame in which eggs will remain viable aer death and the

required provision of hormone treatment, the removal of gametes from a woman

who has suered brain death for later use in posthumous conception would prove

dicult.111

e retrieval of sperm for PAHR is only permissible under the 2022 Bill if the

deceased has provided their valid consent in the manner detailed earlier.112 Measures

to this eect are also required by laws that regulate posthumous sperm retrieval in

Canada.113 Other jurisdictions however, are more permissive with regard to the

permissibility of retrieving gametes aer death and the procedure can be facilitated

in several countries without expressed written consent. In Belgium, for instance,

there are no specic laws pertaining to the retrieval of gametes aer death and

the procedure can be facilitated at the discretion of fertility clinics.114 In addition,

guidelines in Israel can be read to permit post-mortem gamete retrieval at the

request of the deceased’s surviving partner115 and similar guidelines have also been

issued at a national level across Australia.116 ese less onerous consent policies are

likely a response to the fact that when post-mortem gamete retrieval is requested

it is routinely in circumstances where the deceased has died suddenly and has not

previously stored gametes during their lifetime. Indeed, in such circumstances, it

would be exceptionally rare for the deceased to have considered the possibility

of their gametes being harvested aer death, let alone have documented their

views on this issue.117 As it stands, to constitute as valid consent under the 2022

Bill, not only is it required for the deceased to have provided a written document

consenting to the retrieval of gametes aer death, but the deceased must also

have further conrmed that they have received full information and counselling

regarding PAHR. 118 is standard of consent will rarely be met in practice, and will

110 ibid 14.

111 Maya Sabatello, ‘Posthumously Conceived Children: An International and Human Rights

Perspective’ (2014) 27(29) Journal of Law and Health 29, 31.

112 Health (Assisted Human Reproduction) Bill 2022, s 22(2)(d).

113 Assisted Human Reproduction Act 2004, s 8(2).

114 Belgium House of Representatives, Project de Loi Relatif à la Procréation Médicalement Assistée et

à la Destination des Embryons Surnuméraires et des Gamètes (9 March 2007); Jon B Evans, ‘Post-

Mortem Semen Retrieval: A Normative Prescription for Legislation in e United States’ (2016)

1 Concordia Law Review 133, 142–143.

115 Hashiloni-Dolev and Schicktaz (n 89) 25.

116 A NHMRC (n 89) para 8.21.

117 Peart (n 52); Tremellen and Savulescu (n 52) 6; Maddox (n 58) 23.

118 Health (Assisted Human Reproduction) Bill 2022, s 22(2)(d).

88  

have the likely eect of barring anyone who has not undergone fertility treatment

during their lifetime (and who has therefore not contemplated the feasibility of

posthumous gamete retrieval) from beneting from PAHR technology.119

It is further noteworthy that although addressing the post-mortem retrieval of

sperm for PAHR, the 2022 Bill does not make any reference to the retrieval of

gametes from a comatose or dying patient who lacks the capacity to consent. As

noted earlier, although the 2022 Bill does not provide a denition for death, it is

likely that for the purposes of PAHR, death will be interpreted to mean a clinical

denition of cardiac or brainstem death.120 is interpretation would therefore

preclude the retrieval of gametes for PAHR in circumstances where the source is in

a comatose or persistent vegetative state with no prospect of recovery.

e retrieval of gametes from a comatose patient is not only a feasible option

for PAHR, but has also become an increasingly requested procedure at medical

facilities around the world.121 An example of guidelines providing for the retrieval

of gametes from a comatose or dying patient can be seen in national guidelines

issued across Australia. ese guidelines permit the spouse or partner of a comatose

or dying patient to consent to the retrieval of gametes for PAHR on the patients

behalf.122 However, the vast majority of jurisdictions which regulate PAHR do not

have any laws on the retrieval of gametes from comatose or dying patients. Indeed,

this can oen lead to a mismatched situation whereby gametes can potentially be

harvested from patients, but cannot be used in PAHR absent the source’s consent.123

For example, in the UK, there have now been several instances in which gametes

have been successfully harvested from comatose patients.124 However, the surviving

partners have not been permitted to store or later use the gametes in PAHR, due to

the absence of the deceased’s expressed written consent.125

e most famous case in this regard is R v Human Fertilisation and Embryology

Authority, ex parte Blood.126 Here, the applicant Diane Blood, sought judicial review

of a decision made by the UK’s Human Fertilisation and Embryology Authority

when they denied her request to have her deceased husband’s sperm transferred

to a fertility clinic in Belgium for use in PAHR.127 e sperm had been initially

119 Maddox (n 58) 23.

120 Intensive Care Society of Ireland (n 37) 2.

121 CM Rothman, ‘A Method for Obtaining Viable Sperm in the Postmortem State’ (1980) 34(5)

Fertility and Sterility 512, 512.

122 e Australian guidelines further provide that a court order is obtained prior to carrying out the

retrieval: Australian Government NHMRC (n 89) para 8.21.

123 Sarah L Middleton and Michael D Buist, ‘Sperm Removal and Dead or Dying Patients: A

Dilemma for Emergency Departments and Intensive Care Units’ (2009) 190(5) Medical Journal

of Australia 244, 245.

124 Ex p Blood (n 54); Y v NHS Healthcare Trust [2018] EWCOP 18.

125 Sch 3, paras 5 and 8 of the Human Fertilisation and Embryology Act 1990 require expressed

consent from the source for the storage and use of gametes.

126 Ex p Blood (n 54).

127 Ibid [3].

e Health (Assisted Human Reproduction) Bill 2022 89

retrieved from her husband whilst he was in a coma. However, Mrs. Blood was

prevented from storing or using the sperm in the UK because her husband had not

provided valid written consent in accordance with the UK’s Human Fertilisation

and Embryology Act 1990.128 Ultimately, Mrs. Blood’s application was successful

and she was permitted to export her husband’s gametes to Belgium for use in

PAHR. However, this result was arguably due to the external pressure placed on

the HFEA Committee as the case attracted widespread media attention.129

A similar scenario also arose in Y v NHS Healthcare Trust.130 Here, the UK’s Court

of Protection made an order pursuant to mental capacity legislation, and deemed

it in the ’best interests’ of a comatose man to harvest his sperm for PAHR.131 In

addition, the Court made a further order authorising a third party to sign the

relevant consent forms required by the UK’s fertility legislation for the subsequent

storage and use of the man’s sperm in PAHR by his surviving spouse.132 In making

the latter order, the Court of Protection prevented a scenario similar to that which

occurred in Blood.133 e surviving partner in this case was not required to have

the sperm exported to a jurisdiction where it could be used in PAHR absent

her husband’s consent. Nonetheless, the court should have been prevented from

making such an order, given that the UK’s mental capacity statute specically

precludes certain decisions from being made on behalf of an incapacitated patient,

including consenting to procedures covered by the UK’s fertility legislation.134 Peart

notes that this is a ‘clear statutory prohibition’ which could even oust the court

from invoking their parens patriae jurisdiction to provide the necessary consent

on behalf of the source.135 Indeed, Maddox observes that there was seemingly no

legislative basis for the court of protection to make this order, and if there was any

distinction between the consents ordered by the court and those prohibited under

the mental capacity statute, this was not made clear.136

Ultimately, the absence of laws in the UK dealing with the issue of gamete retrieval

from dying patients and their subsequent use in PAHR has led to a ‘mismatched’

situation where gametes can be lawfully retrieved (because it is deemed to be in the

patients best interests), but cannot be lawfully stored or used in PAHR without

the source’s consent.137 ese cases demonstrate the importance of having clear and

consistent laws in Ireland on the retrieval and use of gametes in PAHR. By not

128 ibid [2].

129 B. Simpson, ‘Making ‘Bad’ Deaths ‘Good’: e Kinship Consequences of Posthumous

Conception’ (2001) 7(1) e Journal of the Royal Anthropological Institute 1, 2.

130 Y v NHS Healthcare Trust (n 125).

131 ibid [24].

132 ibid [27]; Human Fertilisation and Embryology Act 1990 (UK), sch 3, paras 5 and 8.

133 Ex p Blood (n 54).

134 Mental Capacity Act 2005, ss 27(1)(h) and 27(1)(i).

135 Peart (n 52) 745.

136 Maddox (n 58) 7.

137 Y v NHS Healthcare Trust (n 124); Human Fertilisation and Embryology Act 1990, sch 3, paras

5 and 8.

90  

addressing the retrieval of gametes from dying patients, the 2022 Bill leaves it open

for similar scenarios to occur in Ireland. Ultimately, provisions relating to PAHR

in the 2022 Bill should consider whether the retrieval of gametes from comatose

patients is permissible and under what circumstances. Laws on the retrieval of

gametes from dying patients will not only give physicians clarity on the validity

of carrying out the procedure, but will also ensure that gametes are not harvested

from patients at rst instance if the surviving partner will be unable to use them in

PAH R .138

D. Counselling and Mandatory Waiting Period

Sections 17 and 22 of the 2022 Bill require surviving partners to receive full

information and professional counselling on PAHR.139 A waiting period of one

year following the deceased’s death must also have passed before treatment can be

provided.140 Mandatory waiting periods are common when regulating PAHR. For

example, the national guidelines issued across Australia recommend that surviving

partners withstand a standard period of mourning prior to using the deceased’s

gametes.141 is is also the position taken by the ESHRE Taskforce on Ethics and

Law in their ethical statement on PAHR,142 and is strongly recommended by the

Cornell Guidelines issued by the Weil Cornell Medical Centre in the USA.143

Belgium also provides for a six month reective period before PAHR treatment can

begin.144

A mandatory waiting period does not guarantee that the surviving partner has

‘overcome their grief’ before proceeding with PAHR. e process of mourning

will vary depending on the particular person and cannot be rigidly dened by

applying a blanket ‘standard period of mourning’ for all.145 Kübler-Ross and Kessler

note that grief is not time bound. In fact, they suggest that grief can last forever.

138 An example of guidelines providing for gamete retrieval from comatose patients can be seen in

national guidelines issued across Australia. ese state that gametes can be retrieved from a dying

patient who lacks capacity when valid consent has been obtained from the dying persons spouse

or partner. In this scenario, the guidelines advise that court approval is obtained prior to a clinic

extracting the gametes from the dying person: Australian Government NHMRC (n 89) para

8.21.

139 Health (Assisted Human Reproduction) Bill 2022, ss 17 and 22.

140 ibid s 42(1).

141 Australian Government NHMRC (n 89) para 8.23.1.

142 European Society of Human Reproduction and Embryology Task Force on Ethics and Law (n 51)

3053.

143 Weil Cornell Medicine (n 89).

144 Belgium House of Representatives (n 114) art 16.

145 erese A Rando, Grief, Dying, and Death: Clinical Interventions for Caregivers (Research Press

Company, 1984) 115; Heather Conway and John Stannard, ‘e Honours of Hades: Death,

Emotion and the Law of Burial Disputes’ (2011) 34(3) e University of New South Wales Law

Journal 860, 865.

e Health (Assisted Human Reproduction) Bill 2022 91

e authors claim that people do not ‘get over’ the loss of a loved one, but rather,

they learn to move on with their lives over time.146 ey do suggest, however, that

it is important for people to take some time following the death of a loved one to

process and heal from any intense feelings of sadness, anger and emotional pain

that can manifest.147 On this basis, a standard period of mourning does not act

to ensure that the surviving partner has stopped grieving before proceeding with

PAHR. However, it does provide the surviving partner with a period of reection,

and can prevent them from making an impulsive decision in response to their grief.

is can be evidenced by a research study which was carried out with the purpose

of assessing the desire to conceive posthumously. e ndings demonstrated that

aer undergoing a standard mourning period of six months to one year, over half

of the surviving partners who initially sought out PAHR did not follow up with

treatment.148

Requirements that the surviving partner undergo professional counselling is also

common when regulating PAHR. For example, the UK’s formalities for giving valid

consent to ART treatment require that the patient is provided with full information

and is given a suitable opportunity to receive counselling.149 Counselling is also

required by the Australian state of Victoria’s Assisted Reproductive Treatment

Act 2008150 and is further recommended at a national level by the Australian

guidelines on ART.151 e rationale for counselling prior to PAHR is to ensure

that the surviving partner fully understands the social consequences of proceeding

with treatment and that they have taken the welfare of the resulting child into

consideration. Indeed, the ESHRE Taskforce deem it necessary for surviving

partners to be psychologically evaluated before PAHR to ensure that they are not

acting in response to guilt or grief for their loved one.152

Including these added measures in the proposals for regulating PAHR in Ireland

is commendable and has been welcomed by stakeholders. Both the Waterstone

Clinic and the Institute of Obstetricians and Gynaecologists initially encouraged

the General Scheme’s proposals in respect of counselling and agreed that it should

be mandatory in cases of PAHR.153 In contrast, Virtus Health were critical of the

one year mandatory waiting period and deemed it ‘overly prescriptive’ given that

146 Elisabeth Kübler-Ross and David Kessler, On Grief and Grieving: Finding the Meaning of Grief

rough the Five Stages of Loss (Simon and Schuster, 2005), 230.

147 ibid.

148 G Badahur (n 65) 2573.

149 Human Fertilisation and Embryology Act 1990, sch 3, s 3(1).

150 Assisted Reproductive Treatment Act 2008, s 48.

151 Australian Government, NHMRC (n 89) para 8.23.1.

152 European Society of Human Reproduction and Embryology Task Force on Ethics and Law (n 51)

3052.

153 Access details for both the Institute of Obstetricians and Gynaecologists and the Waterstone

Clinic’s submission to the Joint Committee on Health regarding the General Scheme of the

Assisted Human Reproduction Bill 2017 can be found at n 27.

92  

professional counselling was already required for PAHR. 154 In this respect, there is

certainly an argument that these requirements are paternalistic, particularly when

expressed consent to PAHR is already required from the deceased.155 However,

these provisions ultimately serve to protect the interests and minimise the potential

harms caused by PAHR to the surviving partner. By including such measures when

regulating PAHR in Ireland, regulation is being used as a means to minimise the

potential harm inicted by the technology, and this is to be welcomed.

E. Parentage and Inheritance Rights of Children born through PAHR

e 2022 Bill provides for the deceased to be recognised as the legal parent of any

child born through PAHR, so long as both the deceased and surviving partner

have provided consent to this.156 Provisions regarding the legal parentage of

children born through PAHR are important. Such measures seek to symbolically

acknowledge the deceased as the child’s legal parent and they serve to reduce

any harm to the resulting child by providing them with certainty regarding their

identity and lineage.157 For this reason, this proposal is an important update from

the General Scheme which originally set out that the deceased would only be

recognised as the child’s legal parent if that child was born within thirty-six months

of the deceased’s death.158 e initial proposal had the eect of protecting the state’s

interest in the timely administration of the deceased’s assets, and ensured that the

process would not be unduly burdened by the birth of a posthumously born child.

However, it had the knock on eect of discriminating between posthumously

born children who were born within, and those born outside of the thirty-six

month time period.159 Following advice from the Joint Oireachtas Committee, this

provision has been rightly amended, and there is no longer a timeframe in which

the child must be born to be recognised as the deceased’s legal ospring.160 is is

a positive amendment and will be of symbolic importance for posthumously born

children who will have certainty regarding their lineage. However, this amendment

will also have the practical eect of entitling the posthumously born child to

inherit from their deceased parent’s estate, irrespective of when that child is born.

As a consequence, the proposal has the potential to delay the administration of

the deceased’s assets indenitely, and does not act to protect the state’s interest in

timely estate administration.

154 Virtus Health, ‘Submission to Joint Committee on Health on the General Scheme of the Assisted

Human Reproduction Bill 2017’ 221; access details can be found at n 27.

155 Evans (n 114) 160.

156 Health (Assisted Human Reproduction Bill) 2022, s 22(e).

157 James France, ‘Estates on Ice: e Case for Paternity and Succession Rights of Posthumously

Conceived Children’ (Bachelor of Laws esis, University of Otago 2018) 24.

158 General Scheme of the Assisted Human Reproduction Bill 2017, Part 4, Head 27.

159 Joint Committee on Health (n 2).

160 Health (Assisted Human Reproduction Bill) 2022, s 22(e).

e Health (Assisted Human Reproduction) Bill 2022 93

Concerns regarding the ecient administration of the deceased’s estate is one of

the primary issues which is raised against PAHR on behalf of the state. e state

has an interest in maintaining stable land titles and ensuring that property is

eectively wound up in a succession context.161 is was the dominant concern

raised by the UK’s Committee of Inquiry regarding PAHR in the Warnock Report

1984 .162 ere was a fear that children born through PAHR would disrupt the

timely distribution of the deceased’s assets.163 Indeed, this concern was also raised

by stakeholders when discussing the initial proposals for regulating PAHR in

Ireland under the General Scheme.164 For this reason, the provisions regarding

legal parentage in the 2022 Bill could be improved further by recognising the

deceased as the child’s legal parent, but simultaneously barring the posthumously

born child from inheriting. Legislation to this eect can be seen in the UK’s

Human Fertilisation and Embryology (Deceased Fathers) Act 2003 (UK).165

e UK legislation permits the deceased to be registered as the legal parent of a

posthumously born child. However, recognition of the deceased as the parent of

the child is limited to registering the deceased as the child’s parent on their birth

certicate. e deceased is not to be recognised as the legal parent of the child for

any other purposes and the child has no entitlement to inherit from the deceased’s

estate.166

ere are of course, arguments advanced for aording succession rights to

posthumously born children. In particular, O’Sullivan notes that the succession

rights of children en ventre sa mere at the time of the deceased’s death have long been

protected. is is on the basis that it is in the child’s best interest to do so.167 While

this is true, the child’s right to inherit in these cases is dependent on them being

born within the normal period of gestation measured from the date of the parent’s

death. us, providing for the child in this way is unlikely to cause any substantial

delay on the administration of the deceased’s assets. is is not necessarily the case

with children who are conceived aer the death of a parent. Indeed, the surviving

partner is not only required to wait a period of one-year following the deceased’s

death to begin with PAHR treatment, but they might also experience further

diculties with conceiving and/or have legal delays.168

161 R Co llins, ‘Posthumous Reproduction and the Presumption Against Consent in Cases of Death

Caused by Sudden Trauma’ (2005) 4(30) e Journal of Medicine and Philosophy: A Forum for

Bioethics and Philosophy of Medicine 431, 432.

162 Department of Health and Social Security, Report of the Committee of Inquiry into Human

Fertilisation and Embryology (Cmnd 9314, 1984) 55.

163 ibid.

164 Mulligan (n 27); Duy (n 27).

165 Human Fertilisation and Embryology (Deceased Fathers) Act 2003.

166 ibid s 39(3).

167 Kathryn O’Sullivan, ‘Posthumously Conceived Children and Succession Law: A View from

Ireland’ (2019) 33 International Journal of Law Policy and the Family 380, 382.

168 Neil Maddox, ‘Inheritance and the Posthumously Conceived Child’ (2017) e Conveyancer

and Property Lawyer 1, 8.

94  

Akin to the legislation in the UK, measures pertaining to legal parentage in Ireland

should simultaneously extinguish any right of the posthumously born child to

inherit from the deceased’s estate.169 is is to ensure that the state’s interest in the

administration of estates is not harmed in any way by recognising the deceased as

the child’s legal parent. Moreover, disinheritance will not prejudicially harm the

resulting child. Firstly, it is not unjustied to disinherit the child, given that there is

no broad legal entitlement in Irish succession law for children to inherit from their

parents outside of intestacy cases.170 Furthermore, it is likely that the alternative

beneciaries of the deceased’s estate will be the surviving partner and/or the

extended family members of the deceased, and these are the very people who will be

raising the resulting child.171 Indeed, given that PAHR will be a lengthy and highly

expensive endeavour, one cannot assume that those who do undergo the process are

not fully prepared and committed to providing a comfortable upbringing for the

child.172

Concluding Remarks

Overall, there are several aspects of the current proposals for regulating PAHR

in Ireland that are commendable. Most notably, the measures pertaining to

mandatory counselling and waiting periods, which are necessary to protect the

interests of the surviving partner. e provisions regarding legal parentage are also

important. However, it would be more appropriate to simply permit the deceased

to be registered on the child’s birth certicate for symbolic purposes, and to prevent

the child inheriting from their deceased parent. In this way, the interests of both

the child and the state will be safeguarded.

ere are also other elements of the 2022 Bill which could be improved further.

Firstly, the proposals to regulate PAHR by expressed consent are considerably

restrictive. is paper has demonstrated that when death is sudden and unexpected,

it will be exceptionally rare for the deceased’s consent to have been provided in the

manner which is currently required by the 2022 Bill, and this is particularly the case

when PAHR involves the retrieval of sperm post-mortem. e Government should

therefore consider the alternative and less onerous consent policies for regulating

PAHR. ese approaches might more proactively deal with the circumstances in

which PAHR is likely to be requested.

Furthermore, given that the 2022 Bill addresses the retrieval of gametes post-

mortem, it should also consider the validity of retrieving gametes from comatose

169 Human Fertilisation and Embryology Act 2008, s 39(3).

170 Maddox (n 168) 8. Children do however have a right to make an application for proper provision

to be made for them in cases where it is found that their deceased parent has failed in their moral

duty to provide for them: Succession Act 1965, s 117.

171 Sabatello (n 111) 66.

172 Tremellen and Savulescu (n 78) 29.

e Health (Assisted Human Reproduction) Bill 2022 95

patients. In failing to do so, the 2022 Bill leaves itself open to situations such as

those occurring in the UK, whereby gametes may be retrieved from comatose

patients, yet are unable to be used in PAHR absent expressed consent from the

source.173 Lastly, the availability of using surrogacy in conjunction with PAHR

should be claried. e Government should consider whether it is just to restrict

PAHR to female surviving partners. Indeed, this is not only discriminatory against

male surviving partners, but further undesirable given that surrogacy is already

permitted under the 2022 Bill, and could potentially be made available to female

surviving partners should they require it.174

Ultimately, the Health (Assisted Human Reproduction) Bill 2022 is a welcome step

forward in the road towards regulating PAHR in Ireland, and it is positive to see

that the Government and Joint Oireachtas Committee have considered the various

submissions on the General Scheme, and acknowledged the complex and emotive

situations which are central to the regulation of PAHR. e 2022 Bill is currently

in its third stage before Dáil Éireann. At this point, it will be examined section by

section and any proposed amendments can be made before it continues through

the legislative process. ese ongoing discussions surrounding the introduction of a

regulatory framework for PAHR in Ireland highlight the signicance of exploring

how the practice is best regulated. Indeed, as public awareness of PAHR increases

across Ireland, it is reasonable to assume that so too will requests to use this form of

ART. It is therefore crucial that Ireland develops eective policies to deal with the

ethical and legal challenges posed by the technolog y.

173 Ex p Blood (n 54); Y v NHS Healthcare Trust (n 124).

174 Health (Assisted Human Reproduction Bill) 2022, ss 42 and 50.