Ireland needs to regulate for posthumous conception

The tragic case of Aoife Mitchell Creaven, who sadly died of cervical cancer in 2015, has caught the public attention. Her husband, Pádraig, on behalf of himself and his late wife’s family, sued the Health Service Executive and three laboratories for the alleged misinterpretation of a 2011 smear test. The High Court case was settled last Thursday on undisclosed terms.

Having noted the “devastating effect” that his wife’s death had on him, counsel for Creaven outlined the latter’s hopes to use the couple’s frozen embryos (currently held in a fertility clinic in the Czech Republic) to fulfil his deceased wife’s wish for a child through surrogacy. Mitchell Creaven, who had been pregnant with the help of IVF at the time of her terminal diagnosis, had had to undergo a termination at 20 weeks to allow for her treatment.

Beyond the heartbreaking tragedy of the facts, the case is also notable for representing the first time that the issue of posthumous conception has been raised in public discourse in Ireland and probably one of the first – if not the first – time that the issue has been referenced in the Irish superior courts.

Controversy

Since first emerging in Australia in the late 1970s, posthumous conception has long provoked controversy. Several jurisdictions including, for example, France, continue to apply a blanket ban on the posthumous use of genetic material. However, increasingly, more and more countries expressly or implicitly permit posthumous conception in certain, usually tightly-defined, circumstances.

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The ambiguity surrounding the regulation of surrogacy in Ireland further complicates the matter

By contrast, the issue has received little attention to date in Ireland. Unlike in France, there appears to be no specific prohibition on posthumous conception under Irish law. Irish fertility clinics seem to enjoy discretion to (apparently legally) facilitate requests for posthumous conception as they see fit.

However, as Irish law does not include any specific legal provisions for the recognition of parentage of a posthumously conceived child, difficulties nonetheless arise. The ambiguity surrounding the regulation of surrogacy in Ireland further complicates the matter.

Conscious of these gaps in Irish law, in October 2017 the Department of Health released the long-awaited General Scheme of the Assisted Human Reproduction Bill 2017. In addition to trying to provide a much-needed legal framework for surrogacy in Ireland, part four of the general scheme of the Bill also seeks to expressly permit and regulate what it refers to as “posthumous assisted reproduction”. While the precise mode of regulation will undoubtedly be refined from that initially proposed in the general scheme, the willingness of the legislature to address the issue is to be welcomed.

Inheritance

One question which will have to be answered in Ireland, if and when posthumous conception is legislated for, is whether a posthumously conceived child ought to be able to inherit from his or her deceased parent’s estate. This issue, which has stimulated considerable discussion in various jurisdictions in recent times, is one which will have significant practical ramifications.

It has been observed elsewhere that the “major rationale” against giving posthumously conceived children inheritance rights is that it would seriously disrupt the process of administering a deceased’s estate with distribution to beneficiaries under a will or survivors on intestacy delayed. For example, in those jurisdictions which give such rights to posthumously conceived children, the estate is often “frozen” for several years to ensure that it remains intact in the event that a further child of the deceased is subsequently born. Whether, or to what extent, such delays would be considered desirable in Ireland would certainly be cause for some debate.

Awareness of the potential for fertility preservation and posthumous conception is increasing across the developed world

On the other hand, it might seem intuitively fair that such a child should be allowed to inherit from his or her deceased parent, irrespective of when or how they were conceived. Indeed, in a US-based survey on the matter in 2011, about 80 per cent of respondents supported the notion that if a child was conceived with their genetic material after their death, that child should be entitled to an inheritance from their estate.

While the general scheme of the 2017 Bill signals an intention to recognise at least some inheritance rights of posthumously conceived, or so-called “after-born”, children, little detail has emerged as to what shape this provision might take.

What the Creaven case shows is that, notwithstanding that it has received little attention in Ireland, the potential for posthumous conception is by no means hypothetical. Although counsel for Creaven noted his intention to pursue surrogacy options in the United States, the law on posthumous conception in Ireland also needs to be addressed as a matter of priority.

Perhaps unsurprisingly given the range of complex issues that it is seeking to regulate, the 2017 Bill has seen slow progress. Despite the fact that pre-legislative scrutiny was completed in 2019, there has been little apparent development in the interim.

Yet the need for such reform remains pressing. Awareness of the potential for fertility preservation and posthumous conception is increasing across the developed world. Ireland is no exception. While the Creaven case may be the first Irish example to catch the public eye, it will certainly not be the last.