Pilar Maria Estelles Peralta has a Licentiate in Law from the University of Valencia, and a Doctorate in Law, and is a member of the Bioethics Observatory of the Catholic University of Valencia (CUV), Spain. She offers this article entitled “The Children of ‘Thanatos” or super-posthumous, where she analyses the controversial subject of the consequences of post-mortem fertilization.
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Portugal is now added to the countries that allow post-mortem artificial insemination, which Spain has led since 1988, in favor of children fertilized after the death of their father, called doctrinally as the “children of Thanatos” (see here). They are children born to satisfy the desire of the widow’s maternity after her husband’s death — although included also are sentimental couples — as well as the desire of the deceased to have offspring with their own genetic load even if it’s after his death.
Post-mortem fertilization causes intentionally in the offspring orphanhood of birth as regards the father, which deprives the child of the possibility of receiving the father’s attention and care, putting the will of the deceased (and of his widow) to be parents before the company and affection of which their posthumous born, an orphan, will be deprived. This desire of paternity, or to have offspring with one’s own genetic load –regulated legally by the rules of assisted reproduction and elevated to a “right” in favor of one who will not be able to enjoy the future child–, violates the superior interest of this minor, which must prevail over any other interests, including those of its progenitors, as our Supreme Court has expressed on reiterated occasions.
With the approval of the new Portuguese law, once again against the position of very weighty institutions as well as against soundness, such as the National Ethics Council for Life Sciences, the Portuguese Fertility Association, and the Council of Medically Assisted Procreation, the neighboring country will permit post-mortem insemination of new children as long as the future deceased father, with whom the woman to be inseminated shared life, died in a temporal term of between 6 months and three years earlier, and would have consented to it, which entails the inclusion, which has necessitated a substantial reform of the Succession Law in this regard, of the future child among the heirs of the deceased, regulating that the inheritance will be held in abeyance for a period of three years after his death, which will be extended in case processes of permitted insemination are pending, with the maximum limit of three attempts of insemination treatment.
This new law in fact doesn’t imply an advance, despite regulating the hereditary rights of the super-posthumous — little retribution for its condition, being born an orphan ab initio by the expressed and intentioned will of its progenitors –, but is a clear legal and moral setback that entails the reduction of this human being to the category of an object susceptible to objectivization and that disregards, as the Spanish law, the interests of the protagonist of this process, the child, which are not taken into account, giving way to an intentional “parenting gap even before its conception; interests of the child that are subordinated to the desires of maternity/paternity of its future parents, one of them being already dead. Neither does the measure seem to respond to a social demand, as inseminations of this type are almost non-existent. Hence, the question should be asked if the interests at stake are of another scope.
Pilar Maria Estelles Peralta
Member of the Bioethics Laboratory
Institute of Life Sciences
Department of Private Law
“Saint Vincent Martyr” Catholic University of Valencia