The Use of Assisted Reproductive Technology to Create Posthumous Grandchildren

Lisa Cherkassky

International Journal of Law, 2021, vol. 35, issue 1, ebab054.

Abstract: A recent landmark petition in Scotland from a grieving mother seeking to create her own grandchild using the frozen sperm of her deceased transgender daughter has prompted debate on the creation of posthumous grandchildren. This is an unusual use of assisted reproductive technology, and it raises complicated legal and ethical questions. This article undertakes a comprehensive look at the Human Fertilisation and Embryology Act 1990 (as amended) and whether it can assist grieving parents wishing to create their own biological grandchildren. It will also examine the common law on retrieval and possession of gametes in the specific context of parents, and will highlight the ethical complexities that arise for parents in particular. It will be concluded that the use of assisted reproductive technology for the purposes of creating a grandchild is not currently supported in the UK without the consent of the deceased gamete provider, and any court orders authorising this practice without such consent could be in contravention of the 1990 Act.

Date: 2021
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