Portugal joins the list of countries that practise postmortem insemination

A Portuguese woman, Ângela Ferreira, has been able to get pregnant in 2023 trough postmortem insemination. Her husband, Hugo, passed in 2019.

Insemination is a medical procedure that consists of retrieving sperm from a donor and implanting it into the uterus of a woman. Studies about artificial insemination have circulated for over four centuries. However, a more complex ethical issue in this area is postmortem insemination.

Postmortem insemination as the name suggests, consists of an insemination procedure which resorts to the semen of a deceased person. This issue makes its first appearance in 1981, with the Parpalaix case. The legal decision of the Judicial Court of Créteil triggered a legal conversation concerning this controversial topic, by allowing Corrine Parpalaix to conceive a child using her deceased husband’s sperm, who had cryopreserved it before starting chemotherapy.

Since this milestone within the mentioned controversial issue of postmortem insemination, few other countries, like Spain, Belgium, and the UK allowed the practice.

In Portugal, in 2019, Ângela Ferreira filed a petition when she faced hardship due to a gap in the existent law, that goes back to 2006. The applicable law, in Article 22, mentioned “postmortem insemination” to only allow embryo transfer. Due to this, Ângela could not fulfill her and her husband’s dream of having a baby.

This gap most likely came from the ethical concerns surrounding this procedure.

i. A first concern pertained to the intentional will of creating a life, without the father being alive, that is a person that yields a significant impact on a child’s development and that cannot be entirely replaced by someone else.

ii. Secondly, there were succession issues following this type of insemination since the birth occurs after the death of a parent. Portuguese law failed to regulate the succession rights of the person that is still to be born, making it difficult for them the access to inheritance rights. Related to this aspect, there is the possibility for the mother of the child to use this gap as a tool to gain direct rights to the inheritance. iii. In addition, some scholars, such as Vera Lúcia Raposo and Eduardo Dantas1, have also put forward concerns in relating to the dignity of the deceased person.

In 2021, Ângela Ferreira, alongside with thousands of other citizens, managed to advocate for and obtain the passage of a new law. This law allowed postmortem insemination and tackled many of the aforementioned issues.

• First, in order for a woman to be able to use her deceased partner’s sperm, there must be a clear parental project and the explicit consent of the dead person, mitigating the risk of circumventing the will of the deceased person. Thereby, the child that could be mentally affected for being fatherless, manages to quickly overcome this by knowing that arises from a strong desire of two people who love each other. In the words of Marcel Gauchet, “the more a child is the result of an invention opposed to the nature, the more is wanted”.

• As to the succession issues, the law states that this procedure can only be carried out within three years from the date of death and that inheritance has to remain unclaimed until the birth of the child, thereby assuring the protection of the succession capacity of the concepturo.

However, some questions remain open, such as the rights of the unborn child, that might be seen as just an object of a desire rather than a life itself. Some scholars, such as Paula Martinho da Silva and Marta Costa2, defend that the birth of a child in these circumstances would put in a secondary position the superior interest of the child, for the benefit of the interest of the parents. Therefore, in some extent, we would witness a violation of the principle of human dignity.

Furthermore, should the mental state of the woman that is going to a grieving process be evaluated, in order to understand if there is a legitimate reason to go forward with this procedure? Or is the child being treated as a replacement for the love of the deceased partner?

Leaving aside these brief remarks, what we know is that Ângela Ferreira became pregnant in february 2023, with the sperm of her late husband. Her baby, Guilherme, will be the first Portuguese baby legally born through postmortem insemination.

Research conducted within the Jean Monnet Module EU Family Law held at NOVA School of Law.

NOTES:

1. Raposo, Vera Lúcia and Eduardo Dantas, 2010. “Aspetos Jurídicos da Reprodução Post-Mortem, em Perspectiva Comparada Brasil- Portugal”. In Lex Medicianae- Revista Portuguesa de Direito da Saúde, Separata, edited by Coimbra Editora, 7(14): 84. Acessed May 1, 2023.

2 Martinho da Silva, Paula and Marta Costa, 2011. A Lei da Procriação Medicamente Assistida, Anotada e Comentada (e legislação complementar). Coimbra Editora, 119. Acessed May 2, 2023. P