2019 Articles

Securing Posterity: The Right to Postmortem Grandparenthood and the Problem for Law

Yakovi Gan-Or, Nofar

The development of new assisted reproductive technologies (ART) constantly challenges the relation between reproduction and the law. Posthumous Reproduction, the retrieval and/or use of gametes of deceased persons to produce a child following the death of at least one genetic parent, is an example for such challenge. Practiced since the late 1980’s, Posthumous Reproduction continues to raise moral, ethical, and legal questions over its desired regulation. Over the past decade a novel and rather unusual application of this form of ART brought these questions to the fore. Bereaved parents began presenting requests to use their deceased son’s reproductive gametes to produce a genetically related grandchild. In numerous instances they were able to successfully claim the right to become posthumous grandparents, while challenging the prevailing normative stance that views parents, unlike surviving spouses or partners, as having no ethical claim over their children’s gametes.

This article contributes to the normative discourse over posthumous reproduction by exploring bereaved parents’ stakes in producing their son’s offspring following his death. Unlike the interests of other immediate stakeholders in this reproductive practice, such as the deceased, his spouse, and the future child, the interests of bereaved parents have yet to be properly articulated and conceptualized within this discourse. Specifically, this article considers how the bereavement process that follows the loss of an adult child, and the parent-child relationship that lies between posthumous grandparenthood's consumers and its subjects, both provide valuable context in which to understand parents’ personal motivations in pursuing this reproductive rout. It then argues that this practice's ability to provide comfort and relief amidst grief not only motivates bereaved parents in making their claim, but also explains their relative success among judges and legislators. This compassionate use of law raises broad questions about the role of law, its prescriptive nature, and its ability to address the legal challenges posed by these newly formed families. These concerns should inform legislators and policy makers contemplating the desired regulation of posthumous reproduction. Importantly, it should inform judges, medical professionals, and other front-line responders, making decisions over access to posthumous grandparenthood at the intersection of life – and death.