Necessity knows no law. Also if you want to conceive a child with your deceased partner?

Martin Buijsen

Is having a child using frozen embryos from you and your deceased partner permissible? This question is central to Renee's lawsuit against the Medical Center Kinderwens Leiderdorp. She wishes to become pregnant with an embryo frozen by her and her now-deceased husband, but the Embryo Act prohibits this. Martin Buijsen, Professor of Health Law at Erasmus School of Law, clarifies the case and assesses the chances for the woman involved.

Renee, the plaintiff in this case, and her husband had several embryos frozen years ago after undergoing an ICSI treatment (a fertility treatment) at the Medical Center Kinderwens Leiderdorp. From one of these embryos, they had a child together in 2019. They hoped to have more children together. However, when Renee's husband suddenly passed away in 2021, this plan came to a halt. Now that Renee is ready to conceive with one of the frozen embryos, it appears not legally possible. According to the Embryo Act, her husband should have given explicit consent for using the embryos before his death, which he did not do at the time. 

But what if someone suddenly passes away? Are there exceptions that could still fulfill the desire to have a child? According to Buijsen, the law is clear in this case as well. "Both parties must have given explicit consent. In this case, it is lacking from the partner", he explains. The Medical Center Kinderwens Leiderdorp must adhere to the Embryo Act and, therefore, cannot release the fertilized embryos to the plaintiff. However, Renee claims that she and her husband were never informed about the requirement for consent. She argues that there is no information available on this matter. The court has already reprimanded the medical centre for inadequate information. Nevertheless, this is not enough for Renee; she still hopes to gain possession of the embryos. 

The legal requirements versus the interests of the woman

"It is possible that the court may find that the interests of the mother outweigh those of the deceased partner in this case, so I do not rule out her chances", Buijsen clarifies. However, according to Buijsen, both the letter and the spirit of the law do not favour Renee. "The Embryo Act is entirely clear: no express written consent means no postmortem use. The spirit of the law will not be of much help to the woman either. The Embryo Act intends to give authority to the person from whom the bodily material originates. The legislator wanted to prevent using such material based on presumed consent." 

"Should the court undermine the interests of the woman by emphasizing the requirement of written consent?" 

Nevertheless, there are various points that Renee could raise before the court. For instance, she could prove that the information provided by the Medical Center Kinderwens Leiderdorp in this regard is insufficient. Also, the concept of 'presumed consent' could be more or less plausible and should be examined based on the circumstances of the case. "And if the circumstances strongly indicate that the man would have given his consent (a happy marriage, an obvious shared desire to have a large family, a previous IVF procedure, the understandable wish to have genetically related children, etc.), should the court undermine the interests of the woman (and the existing child) by emphasizing the requirement of written consent?" 

More information

More information about the case can be found in the episode of Hart van Nederland from 17 July 2023 (from 15.37 onwards) (in Dutch). 

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