Posthumous assisted reproduction and post-mortem paternity

The advancement of artificial reproductive technologies (ART) has outpaced many existing legal and ethical frameworks, challenging foundational notions of parenthood, consent, and the temporality of reproductive decisions. Among the most complex developments is posthumous assisted reproduction. While medically feasible, this practice raises profound legal and ethical questions, especially regarding the nature and validity of consent to parenthood to a child who will be born to a deceased father.

This article provides a comparative analysis of legislation and regulatory frameworks governing posthumous reproduction via embryo transfer (a topic less investigated compared to gamete retrieval) across selected European countries to contextualize this practice.

The study adopts a comparative methodology, analyzing laws, regulatory guidelines from several European countries: Belgium, France, Greece, Italy, Portugal, Spain, the Netherlands, United Kingdom. Sources include legal databases, national ART authority publications, and academic articles.

The analysis reveals a fragmented European landscape. France maintains a categorical prohibition on posthumous reproduction, while all other countries investigated permit it under different degrees of procedural and temporal safeguards, emphasizing explicit, written, and pre-mortem consent.

Overall, posthumous reproduction is framed as a continuation of a parental project, but consent models and temporal limits vary, ranging from specific post-mortem authorization to reliance on prior ART consent alone. Most countries impose waiting periods of six to twelve months and temporal limits of one to five years, while the Netherlands applies the general ART age limit of forty-nine years, and Italy stands out for the absence of any time restriction.