FERTILITY PRESERVATION: Exploring the complexities of posthumous reproduction in fertility preservation for oncology patients with poor prognosis

Introduction

The field of fertility preservation (FP) for oncology patients has evolved significantly in recent years, offering new possibilities for individuals with life-threatening illnesses. We commend Jones et al. (2023) for their comprehensive ethical review of offering FP to patients with poor prognoses, acknowledging the potential benefits that it may bring. ‘Poor prognosis’ in this context implies that there is almost a certain chance of death due to cancer progression. In fact, the reluctance of some professionals, including oncologists, to offer FP stems from the fact that most of these patients are likely to die prior to being able to realise their potential of biological parenthood from the stored genetic material derived from FP (Alshamsan et al. 2023). Hence, we believe that the issue of posthumous reproduction, which involves the use of cryopreserved gametes or embryos to conceive a child after the death of one or both partners, briefly mentioned in the paper by Jones et al., deserves further consideration and reflection. Posthumous reproduction raises a multitude of complex ethical, logistical, and legal questions.

Posthumous reproduction: a nuanced perspective

The term ‘posthumous reproduction’ refers to conceiving a child using the genetic material (sperm or eggs) of a deceased individual. Whilst offering hope and possibility, this practice is fraught with complexity. As Jones et al. (2023) noted, FP can provide patients with a chance to experience genetic parenthood, albeit posthumously. However, it is essential to acknowledge that the potential benefits of posthumous reproduction extend beyond genetic parenthood.

1. Imagined Parenthood: Jones et al. (2023) introduced the concept of ‘imagined parenthood’, a notion that transcends genetic connections. For individuals facing the uncertainty of a poor prognosis, the mere knowledge that their genetic material may contribute to the creation of life with and by their partner can offer comfort and a sense of legacy. Imagined parenthood allows patients to envision their role in the lives of future generations regardless of whether they are physically present to witness it.

2. Gift of Genetic Material: Posthumous reproduction also presents an opportunity for individuals to gift genetic material to their surviving partners. These partners may choose to utilise the preserved gametes or embryos to attempt conception, enabling them to create a biological link with the deceased loved one. This act can bring solace and meaning to the grieving process. In contrast, preserving gametes from a deceased partner may place an undue burden on the surviving one. They may feel obliged to attempt conception with preserved gametes, thus not always acting in their best interests.

It is worth noting that the above-mentioned benefits of FP for patients with a poor prognosis and probable imminent demise require the presence of a partner who may desire to attempt conception posthumously. For oncology patients with a poor prognosis who are single, the path to posthumous reproduction is most likely closed. There have been instances where the parents of a deceased individual attempted posthumous conception with the help of a gamete donor and a surrogate (Simana 2018, Ram-Tiktin et al. 2019). However, these instances are rare, and the benefit to the deceased person is highly questionable. Such practices are commonly prohibited under the existing regulatory regimes or may require a judicial review, the outcome of which is often uncertain (Cherkassky 2021). It may be possible to transport cryopreserved gametes to a more permissive jurisdiction, but this option may be subject to legal constraints, and the concerns frequently associated with reproductive tourism may limit this option (Ferraretti et al. 2010).

Distinct considerations for cryopreserved sperm and oocytes

A significant but often overlooked distinction in posthumous reproduction is whether cryopreserved sperm or oocytes are involved. Each scenario presents unique challenges and considerations.

1. Cryopreserved Sperm: Currently available in vitro fertilisation (IVF) techniques allow the surviving female partner to use the deceased male partner's cryopreserved sperm to achieve conception, carry a pregnancy, and give birth with no need for external involvement. This process can be relatively straightforward and is legally permitted in many jurisdictions. Consent from a deceased partner is usually required.

2. Cryopreserved Oocytes: In contrast, when cryopreserved oocytes from a deceased female partner are desired for posthumous reproduction, the process becomes considerably more complex. It necessitates the use of a surrogate, which introduces additional logistical, emotional, and legal complexities. The involvement of a third party in the form of a surrogate requires careful consideration and, in some regions, may be subject to legal restrictions in the circumstances where one of the contributors of the genetic material is no longer alive.

Considerations for same-sex couples

The complexities of posthumous reproduction are further amplified in same-sex couples. In such cases, the absence of the opposite-sex partner can lead to intricate legal and logistical challenges:

1. Male Same-Sex Couples: For male same-sex couples, the need for a surrogate and an oocyte donor is a fundamental requirement when utilising cryopreserved sperm. As a means of achieving parenthood, surrogacy presents a highly fragmented legal landscape where the permissibility of such arrangements varies widely from one jurisdiction to another. In some, surrogacy is explicitly allowed, albeit often under stringent regulations. In contrast, there are jurisdictions where it is entirely prohibited, making it exceptionally challenging for single male individuals to pursue this avenue to parenthood, especially utilising the cryopreserved sperm of their deceased partner. The unique circumstance of posthumous reproduction, necessitating the use of a surrogate and oocyte donor, adds a layer of complexity to the already intricate scenario. Existing regulatory frameworks designed primarily for more conventional surrogacy cases may struggle to accommodate such unconventional situations. This creates a legal and ethical dilemma, leaving same-sex individuals grappling with the uncertainty of how their desire for parenthood can be reconciled with the existing legal and regulatory landscape.

2. Female Same-Sex Couples: In female same-sex couples, the involvement of a sperm donor is required for posthumous reproduction. This introduces issues related to donor selection, legal parentage, and rights of non-biological parents. Furthermore, posthumous conception with the deceased, as well as donated gametes, may not be permitted in some jurisdictions.

Legal and regulatory barriers

The practice of posthumous reproduction is subject to varying legal and regulatory frameworks worldwide (Gilbar & Ram-Tiktin 2020). These frameworks can significantly impact the feasibility and ethical acceptability of the process (Lawrence et al. 2022). Key legal and regulatory considerations include the following:

1. Consent: Ensuring that deceased individuals’ wishes regarding posthumous reproduction are clearly documented and legally valid is essential. Consent should be obtained and stored in accordance with local laws and regulations. For example, in Australia, some states prohibit the use of gametes without written consent, whilst in other states, posthumous conception without the written consent of a deceased person is not prohibited.

2. Parental Rights: Determining the legal parental rights and responsibilities of the surviving partner, child, and any surrogates or donors involved is crucial. Legal definitions of parenthood can vary widely.

3. Surrogacy Laws: The permissibility and regulation of surrogacy arrangements differ significantly between countries and regions. Some jurisdictions may prohibit or tightly regulate surrogacy, making posthumous reproduction involving surrogacy challenging or impossible.

4. Inheritance and Estate Planning: Posthumous reproduction can raise questions about inheritance, estate planning, and the legal rights of the resulting child. These aspects of posthumous reproduction are often overlooked. Legal clarity is vital in addressing these issues.

Ethical dilemmas and counselling

Ethical considerations surrounding posthumous reproduction are multifaceted (Gowda & Abou Ghayda 2021) (Panagiotopoulou & Karavolos 2015). Healthcare professionals play a critical role in counselling patients and their partners who are contemplating posthumous reproduction:

1. Informed Decision-Making: Healthcare providers must ensure patients fully understand the complexities, emotional challenges, and potential legal barriers associated with posthumous reproduction. Informed decision-making should be based on comprehensive, unbiased information.

2. Psychological Impact: Counselling should address the potential psychological impact on both the patient and their partner. Grief, loss, and the emotional toll of posthumous reproduction must be considered.

3. Alternatives and Support: Patients should be informed about alternative family-building options, such as adoption and the use of donor gametes. Support services should be readily available to help individuals navigate through these decisions.

Conclusions

Posthumous reproduction is a multifaceted and ethically intricate domain within the broader field of fertility preservation. Whilst the potential for genetic parenthood brings hope to individuals facing poor prognoses, the complexities associated with posthumous reproduction cannot be underestimated. The involvement of cryopreserved sperm or oocytes, surrogacy, legal and regulatory considerations, and the unique challenges faced by same-sex couples require careful examination. These aspects of FP and posthumous reproduction must form an essential part of counselling not only the patients with poor oncological prognosis but also their partners, who may be the ones left with the decision as to what to do with the preserved gametes.

Healthcare professionals are vital in providing patients and their partners with comprehensive information, emotional support, and ethical guidance. In the face of uncertain prognoses, individuals should have the autonomy to make informed decisions about their reproductive options, even if those choices extend beyond their lifetimes. Ultimately, posthumous reproduction reflects the deep human desire to leave a lasting legacy and contribute to the circle of life, transcending the boundaries of time and circumstance. Jones et al. ignited a vital discussion, shedding light on the myriad aspects of FP in oncology patients with bleak prognoses. However, posthumous reproduction, which is a logical consequence of the very reason for FP, requires further consideration.

Finally, we would like to suggest that a conversation regarding FP should be an integral part of oncology care, even in the setting of poor prognosis and imminent demise. On the other hand, the threshold for offering FP in such circumstances should at least require the presence of a long-term partner willing to contemplate the arduous journey of posthumous reproduction.

Declaration of interest

The authors declare that there is no conflict of interest that could be perceived as prejudicing the impartiality of the study reported.

Funding

This work did not receive any specific grant from any funding agency in the public, commercial, or not-for-profit sector.

Author contribution statement

AP conceived the paper, was involved in the initial discussions, wrote the first draft, and was involved in the revision and final approval of the manuscript. GR conceived the paper, was involved in the initial discussions, and was involved in the revision and final approval of the manuscript.