Legal issues in posthumous conception using gametes removed from a comatose male: The case of Ex Parte SN

Abstract

In only the second case dealing with posthumous conception in South Africa – Ex Parte SN – a woman approached the High Court seeking an urgent order allowing her to have sperm removed from the body of her comatose husband, so that she could use it for reproductive purposes after his death. This raised two separate legal issues: (i) whether gamete removal may occur where the person from whom the gametes are being removed is unable to consent; and (ii) whether gametes removed in this way could be used for posthumous conception. The court held that the woman was allowed to have the gametes removed, but did not engage with whether she could use them for posthumous reproduction. The court did not provide reasons, as this case was determined on an urgent basis. This article provides a background to this case, and analyses the main arguments surrounding each of these legal issues. It concludes that the law allows that a person who has the authority to give consent to health services on the comatose patient’s behalf may also give consent to gamete removal. However, whether these gametes may then be used for posthumous conception should be determined by a court, by balancing the various rights and legal interests at play. Three criteria that should guide a court’s determination in cases of posthumous conception are provided.