Posthumous Assisted Reproduction in the East Asian Context: Towards a Comprehensive Framework of Regulation

I. Introduction

In 2005, a Taiwanese military officer, Sun Chi-hsiang, died of injuries suffered after a tank driven by a fellow officer negligently ran him over.¹ The late officer’s fiancée, Li Hsin-yu, required to have Sun’s sperm retrieved in hoping to bear his child through artificial insemination. Without any applicable law in place, the controversial case sparked debates in Taiwanese society. The Department of Health (DOH), which initially opposed the procedure, caved in to public pressure and gave permission to the extraction of sperm from the deceased body.² While the sperm was in the state of cryopreservation,³ a panel of scholars and experts were assembled by the DOH to decide whether posthumous reproduction should be allowed in Taiwan.⁴ The panel opposed Li’s request and all sperm taken from Sun’s body was finally destroyed.⁵

This real case generated three main issues. First, who has the right to decide whether to proceed with posthumous reproduction, especially in cases where the deceased man left no instruction? Second, since the surviving wife is the one who will bear risks of assisted reproduction and who will take care of the resulting child, if any, how can the medical system help her to make an informed decision? Third, for a posthumously conceived child, how shall the law provide protection in terms of legal parentage and rights for succession? Is the existing law sufficient to cope with challenges presented by assisted reproductive technologies?

The Taiwan Artificial Reproduction Act (hereinafter, the Act) later enacted in 2007 defines artificial reproduction technologies (ART) as the non-coital way to achieve conception and birth with assistance from reproductive medicine,⁶ which is reserved only to married couples who satisfy both of the following conditions. First, at least one member of the couple must be diagnosed of infertility or having a major hereditary disease that natural conception and birth will cause abnormal conditions for children.⁷ Second, at least one member of the couple must be able to produce healthy gamete, so as to keep the resulting child genetically related to at least one parent. Furthermore, cryopreserved gametes must be destroyed in case any of the following circumstances occurs:⁸

1. 1. The gamete provider has asked for their destruction.

2. 2. The gamete provider has deceased.

3. 3. The gametes have been preserved for more than ten years.

According to the Act, even married couples who demonstrate strong intentions to have a child and who are taking steps by undergoing artificial reproduction may claim no right to continue the medical procedure once the husband is deceased. This article argues that the regulation is overly broad that it poses substantial obstacle to an individual’s autonomy in procreation, which should be narrowly tailored under consideration of all the competing interests.

Unlike in the common law system where contracts and court rulings are the major factors that shape the legal obligation and rights of parties involved, in the civil law system like Taiwan, statutes play the key role in regulating innovative technologies. It is the statutory law that is to specify whether or not an individual’s reproductive material may be used after death, the person who may use it, and the legal status of any resulting children. The article will, therefore, focus its discussion on the design of legislation.

In search of a comprehensive framework of regulation, this article proposes to give due consideration to the decedent’s expressed intent, the surviving spouse’s procreational autonomy, the resulting child’s best interests and public policy. To allow in-depth analysis, this article focuses on scenarios involving male decedents and the surviving wife.

II. Regulating Technologies and Paternity in the Context of Posthumous Assisted Reproduction

This part focuses upon the deceased man who may or may not have expressed his intentions for or against posthumous assisted reproduction, using his gametes. The spectrum of regulation, as well as legal paternity in the context of posthumous assisted reproduction will be discussed in the effort of searching for a system that better...