I begin by explaining what presuming consent to posthumous reproduction would mean, then justify a presumed consent policy in some circumstances by considering the relevant interests at stake. Specifically, I distinguish between a person’s interest, while alive, in not being made a genetic parent after his death, and a dead person’s interest in not being made a genetic parent. I then examine the nature of the surviving partner’s interest in reproducing with her deceased partner. Each of these interests varies depending on the type of posthumous reproduction at stake. For example, all things being equal, reproduction involving interferences with a corpse are harder to justify on the basis of presumed consent than those that do not. Similarly, presuming consent to posthumous reproduction where the genetic parents were long-term romantic partners is easier to justify than if the genetic parents were strangers. Finally, since presumed consent is often discussed in the context of organ donation and is controversial in that context, I compare the situation of presumed consent to posthumous reproduction to presumed consent to organ donation. I demonstrate that there are important differences, such that even if presumed consent to organ donation should be rejected, that does not mean that presumed consent should be rejected in the context of posthumous reproduction.
Presuming Consent to Posthumous Reproduction ,
27 J.L. & Health
available at http://engagedscholarship.csuohio.edu/jlh/vol27/iss1/6