Post-mortem fertilization
June 22, 2010
A French appeals court has upheld the verdict of a lower court, refusing a widow the right to be artificially inseminated with the sperm of her late husband.
But Fabienne Justel is determined to fight for her case - if need be she says she will go to the European Court of Human Rights.
She wants a child from her husband - who died after losing the battle against cancer.
Dominique Justel was already ill when the couple married. And fearing that chemotherapy would leave him infertile, the couple had some of his sperm frozen and preserved in a clinic.
But the husband died three months after the wedding and now the widow wants to go ahead with the plans for artificial insemination, even after his death.
Post-mortem fertilization is illegal in France and the clinic refused to carry out the procedure.
"They told me that the sperm can only be used if the donor agrees and is present," Justel said. "But we had no idea about that rule and the doctors had not told us about it before."
Justel took the case to court but lost. She appealed and the case went on to the next level. But on Tuesday, the initial verdict was upheld.
Justel has now vowed to take the case to the European Court of Human Rights.
The right to have a father?
Legislation on the issue differs across Europe. The problem is that in most countries there are no specific laws on the issue and therefore in some countries post-mortem fertilization is possible - while in others it's not.
"We know that there are many cases in the US where you for instance have soldiers who die in the war in Iraq or Afghanistan. but want their spouses to be able to still have a baby," Hans Lilie, an expert on medical ethics at Halle University, told Deutsche Welle.
"Those who argue against it here in Europe, say that everybody has a right to have a father and to get to know that father," he said.
"There are of course cases where the father dies or leaves, but with post-mortem fertilization you'd create a situation where right from the start, the child will never have a chance to get to know the father."
Germany's current legislation for the protection of embryos dates back some 20 years and basically would need to be entirely reworked, Lilie said.
He hopes that the case in France will contribute to the discussion on the matter. A debate at the European Court of Human Rights would be a step in the right direction, Lilie says.
A precedent in Germany
Germany has seen a case similar to the one in France: A woman wanted to use an egg that had been fertilized by her late husband to get pregnant.
But in Germany, just like in France, the law forbids fertilization with the sperm of a deceased. And just like in France, the hospital initially turned down the widow's request as it would be the doctor who would be breaking the law - not the future mother.
The woman then tried to simply get the frozen egg from the hospital so that implantation could be carried out in a clinic in Poland. Eventually, in May 2010, a court in Rostock ruled in her favor, giving her the right to go ahead - in Germany.
"The ruling in Rostock has set a precedent and it has triggered a wide debate on that issue," says Lilie. "And it's a question that will continue to be an issue in Germany's medical legislation. I would therefore encourage the government and parliament in Berlin to finally address this problem."
Yet the issue is dividing those who work in the field. "It's essentially an ethical question," Dr Emil Costea told Deutsche Welle. Costea runs a center for in-vitro fertilization and is involved in artificial fertilization on a day-to-day basis.
He said the national medical association had advised against post-mortem fertilization and that this is a binding guideline. He himself is divided over the issue.
"Do you really want to have a pregnancy without the father being alive?," he asks. "I personally am against it, for this very reason. Yet in the end I think it should be a question that's left up to the women, it should be their decision."
Should the legislation change in Germany, Costea said he would abide by it - but after a moment of hesitation concedes that he would prefer not to be put in this situation.
Author: Andreas Illmer
Editor: Michael Lawton