Posthumously conceived children – a looming legal and social security minefield
Date: Mar 31, 2023 | Media Release, News, Opinion Pieces
Professor Letlhokwa George Mpedi is the Vice-Chancellor and Principal of the University of Johannesburg.
He recently published an opinion article that first appeared in the Daily Maverick on 30 March 2023.
We must recognise that reproductive technologies will continue to develop and access will increase. In the Fourth Industrial Revolution, this is likely to gain pace. Thus, South African social security laws must keep pace with medical developments.
Before the works of George Orwell or Aldous Huxley highlighted the potential horrors of babies created in laboratories, artificial insemination had already taken root in the scientific world.
The first recorded case of artificial donor insemination certainly looked like it came straight out of the pages of a science fiction novel. In 1884, the Philadelphia physician William Pancoast began treating a 31-year-old woman who could not conceive. Following numerous examinations, Pancoast found that the problem lay in the husband’s sperm count.
His approach, however, was not as simple. The patient was put under chloroform and inseminated with a rubber syringe in front of six medical students. The source of the semen was the medical student Pancoast determined was the most attractive. The result was a healthy pregnancy, but the story around the procedure and the biological father remained shrouded in secrecy.
In 1909, one of the students present that day, Addison Davis Hard, published a letter in Medical World describing the case: “At that time, the procedure was so novel, so peculiar in its human ethics, that the six young men of the senior class who witnessed the operation were pledged to absolute secrecy… A joking remark by one of the class, ‘the only solution of this problem is to call in the hired man’, was the probable incentive to the plan of action that followed.”
Since then, of course, the procedure, alongside other artificial reproductive techniques, has become commonplace. In South Africa, there are fertility clinics and sperm banks in almost every major city. In fact, in some areas of sub-Saharan Africa, it is estimated that up to 30% of couples are infertile, much higher than the global average of 9%.
In some cases, posthumous conception is considered ethically and morally reprehensible.
While artificial reproduction techniques provide some of the answers, legal and ethical hurdles are still posed.
For instance, what of children who are posthumously conceived? Here, we are considering the impact of known donors. South African legislation has endeavoured to regulate and clarify the position of children conceived and born with the aid of reproductive technology. However, there is a great deal of uncertainty regarding the status of a new class of children created by assisted reproductive technology: posthumously conceived children.
It is reported that sperm can be frozen for up to 25 years, and eggs can be frozen for a decade. The uncertainty as to whether a surviving partner would one day use the frozen sperm or eggs poses many questions and challenges.
For instance, the birth of posthumously conceived children could harm the administration of a deceased person’s estate. Executors of the estate may be confronted with the unenviable task of determining whether heirs include posthumously conceived children.
Moreover, there could be a profound impact on the distribution of social security benefits, with particular reference to survivor’s benefits.
There are also various ethical considerations. In some cases, posthumous conception is considered ethically and morally reprehensible. Exposing a child to a life without a parent could also be seen as unfair and undesirable.
By the same token, there are opposing arguments to be made. There is an opinion that posthumous parentage should be viewed as the willpower to grant the family unit an opportunity to rise above death.
Regardless of one’s moral positioning, the current patchwork of the survivors’ benefits statutory framework does not adequately address the right of posthumously conceived children to survivors’ benefits.
So, what is to be done? We must recognise that reproductive technologies will continue to develop and access will increase. In the Fourth Industrial Revolution (4IR) this is likely to gain pace. Thus, South African social security laws must keep pace with medical developments.
Policymakers should urgently revisit the regulation of survivors’ benefits to extend access to such benefits to posthumously conceived children. Moreover, they should pay particular attention to the principle that the welfare and interest of posthumously conceived children are paramount.
Most importantly, they must endeavour to balance the conflicting interests of the state, posthumously conceived children and living survivors.
Importantly, this is but one facet of the conversation. As technology advances, the legal fraternity needs to do more than keep up, it needs to be proactive. We may be a world away from Pancoast’s experimentation, but we are still faced with cases that seem fictional. Our duty is to ensure that the policy responds regardless.
As the biologist and author of Daedalus, JBS Haldane, wrote, “we can foretell little of the future save that the thing that has not been is the thing that shall be.”
*The views expressed in this article are that of the author/s and do not necessarily reflect that of the University of Johannesburg.
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