Law of Wills, 2016A

donor. 74 Posthumous reproduction has conditional acceptance in the Netherlands and Greece as
long as written consent is acquired before the sperm donor dies. 75
Problems
1. Juan and Isabella were married for ten years. Juan was diagnosed with stomach cancer and had to
undergo chemotherapy. Dr. Chin informed the couple that the chemotherapy might render Juan
infertile. Juan and Isabella really wanted to have children. Therefore, Juan had his sperm frozen prior
to submitting to treatment. As a part of that process, Juan signed a form stating that, in the event of
his death, he wanted Isabella to use his frozen sperm to conceive his child. In addition, Juan told his
friends that Isabella was the love of his life, and so it was important for a little piece of them both to
exist on the earth. Unfortunately, Juan passed away in January of 2011. In June of 2012, Isabella
decided to have a child conceived using Juan’s sperm. Isabella was insecure about her looks. She told
her best friend, Debbie, “There is no way I’m passing on this face.” Debbie agreed to donate some
of her eggs to Isabella, so Isabella could have the beautiful child that she wanted. After the hospital
released Juan’s sperm to Isabella, Isabella used the sperm to fertilize Debbie’s egg. Isabella did not
want to mess up her figure, so she hired a surrogate, Hillary, to carry the child for her. On February
18, 2013, Hillary gave birth to a little boy named Juan, Jr. Will Juan, Jr. be legally recognized as
Juan’s child? What ethical issues may arise out of these facts?
2. Patrick signed a document giving his wife, Bonnie, permission to conceive a child using his sperm
in the event that he died. Patrick wanted to make sure that Bonnie had something by which to
remember him. Patrick was in a car accident. As a result, Patrick suffered brain damage and is in a
vegetative state. Patrick is breathing on his own, but has very little brain activity. Doctors informed
Bonnie that Patrick would never recover from his condition. However, doctors confirmed that
Patrick could remain in a vegetative state for years. Bonnie presented the written form Patrick signed
and requested that the doctors extract Patrick’s sperm, so that she could use it to conceive his child.
Bonnie does not want to wait until Patrick dies to get the sperm because her biological clock is
ticking. The head of the clinic has consulted you for advice. In light of the above-listed statutes, how
would you respond?
3. Mitch told his wife Lisa that, if they did not conceive a child prior to his death, she could have his
sperm extracted and use it to conceive a child posthumously. Without Mitch’s knowledge, Lisa
recorded the conversation. A few months later, Lisa and Mitch had a fight over money. Mitch
refused to destroy the pre-nuptial agreement that limited Lisa’s interest in his assets to 5% upon his
death or if they got a divorce. According to the pre-nuptial agreement, any children of the marriage
would receive 25% of Mitch’s assets. On June 10, 2014, Mitch filed for a divorce. Two days later,
Mitch was killed in a car accident. Lisa played the tape recorded conversation for the doctor and
demanded the removal of Mitch’s sperm. The doctor complied with Lisa’s request and she used
74
Assisted Human Reproduction (Section 8 Consent) Regulations SOR/2007-137,
75
Usha Ahluwalia and Maia Arora, Posthumous Reproduction and Its Legal Perspective, 2 International Journal of Fertility and
Fetal Medicine, 9, 12 (January 2011) (citing Art. 7 Embryos Bill); Mavroforou, A., Koumantakis, E., Mavrophoros, D.,
and Michalodimitrakis, E., Medically assisted human reproduction: the Greek view, 26 Med. Law 339, 341 (2007)(citing Medically
Assisted Human Reproduction Act 3089/02 which states “Artificial insemination carried out after the death of the
husband or the woman's partner, is allowed only by judicial permission and only under the following circumstances: a.
The husband or the permanent partner of the woman suffers from a disease, which endangers his life or fertility b. The
husband or the woman's partner has already given his consent before a notary for posthumous artificial insemination.”).
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