Posthumous Assisted Reproduction in the East Asian Context

Abstract

"In 2005, a Taiwanese military officer died from an accident. His fiancée required to retrieve the sperm so as to bear his child through artificial insemination. The Taiwan Department of Health gave permission to the extraction of sperm but later opposed to the posthumous reproduction. The sperm was finally destroyed. In 2007, the newly enacted Taiwan Artificial Reproduction Act responded to instances of posthumous reproduction in a forbidding fashion. This article argues that the blanket regulation is overly broad that it may impose substantial obstacle to an individual’s procreational autonomy, which should be narrowly tailored under consideration of all the competing interests.

This article frames the theme of posthumous reproduction from both the legal and bioethical perspectives. In the first part, various models of regulation from the restrictive to the permissive approach is discussed in light of protecting the procreational autonomy of the deceased. Next, since the assisted reproduction medicine will be performed upon the surviving spouse, she will need comprehensive consultation in order to make autonomous choices. The contents, goals, methodologies of such consultation and the system of collaboration and referral are the main concern in this part. Lastly, the best interests of the resulting child must be given due consideration. Issues of legal parentage and inheritance is explored in order to reduce uncertainty and potential risks. This article concludes by proposing a comprehensive framework of regulation where interests of the deceased, the surviving spouse, the resulting child and social justice will be balanced"