(Bio)ethical dilemmas of posthumous parenthood from frozen embryos

Abstract

The topic of posthumous parenthood from frozen embryos raises numerous ethical, legal, medical, and population policy questions. As a result, the topic's complexity requires a multidisciplinary approach. This paper analyzes several key issues and various perspectives related to them, including: 1) the fate of frozen embryos from an ethical standpoint; 2) the principle of the best interest of the unborn child; 3) the rights of couples who wish to become parents through this method. These rights often conflict, prompting the question of which should be given precedence. Based on an analysis of normative frameworks, case law, and relevant theory in Serbia and abroad, the authors attempt to address several important questions, including the ethical justification and legal certainty of posthumous parenthood, as well as the ethical and medical legitimacy of certain procedures involving unused embryos. Research results show that there is no unified stance on the justifiability of fulfilling the desire for parenthood in this manner. Countries regulate the permissibility of posthumous parenthood from frozen embryos in various ways. Legal regulations stating that a frozen embryo may not be used or transferred to the surviving partner after the death of one of the partners have been challenged by judicial practice. A case in point is the court rulings in the Republic of Serbia, which in 2024 allowed embryos to be returned to the surviving partner under a judicial testament. Serbia is now between a restrictive legal model and emerging case law that indicates the need for urgent legislative intervention. Similar cases exist in other countries and will be presented in the paper. In the event of potential legislative amendments, it is essential to consider the rights of all individuals involved in the process, as well as those who may arise through the application of this method. It is the responsibility of state authorities to make all decisions concerning children, including unborn children, in accordance with the principle of the best interest of the child. If there were to be changes in the legal provisions related to posthumous reproduction, it is necessary to adapt the regulations governing the area of inheritance law in parallel.