Post-Mortem Insemination: Bioethical and Legal Dilemmas in the Conception of Orphan Child in Portugal and Brazil

Abstract

This paper moves through the families law and bioethics to address about a controverted theme: Medically Assisted Procreation or post-mortem PMA. It aims to analyze the subject and draw a comparison of the legal treatment given to the subject in Portugal and Brazil. It is, methodologically, a bibliographic review of part of the doctrine and legislation that deals with the PMA, as well as a jurisprudential cut referring to the object of study in the two States. In Portugal, the cryopreserved genetic material, as long as there is a previous expression of the deceased’s willingness to start a family, can be used in homologous insemination. The new wording of the law that regulates the subject faces questions about its practical application by the National Council of Medically Assisted Procreation. In Brazil, a man or a woman can use either the homologous post-mortem PMA – using the couple’s genetic material – or the heterologous PMA, using third-party material. In the absence of a specific law, insemination has been allowed based on provisions of the Civil Code, the Biosafety Law and normative acts of the Federal Council of Medicine. In both countries, the thesis in favor of insemination sees in this practice a legitimate right of the people involved, respecting the autonomy of the deceased’s and the survivor’s will to continue the parental project interrupted by death. The contrary thesis is based on the concern with succession effects, use of genetic material from the dead person and the importance of the family with present parents for the full development of the person born by post-mortem insemination.