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Genetic Legacy: Death as a Gateway to Life

Image via Springer Nature

A man is drafted and deployed to fight on behalf of his country. Back home, he and his partner have not yet had the chance to start a family. Now, caught in the line of fire, he is killed; his partner, devastated, is desperate to preserve the opportunity to carry on his legacy. For the next 106 hours, his sperm will remain fertile if retrieved for preservation and insemination, though it would be optimal to harvest it within the next 36. As the clock ticks, the potential for reproduction using the deceased’s sperm rests on his home country’s laws. If the surviving prospective parent resides in any country not included in the short list of 11 nations that allow for posthumous insemination, the odds of conception are grim: Most countries’ total lack of relevant policy leaves the issue in the hands of subjective medical practitioners and individual judges, while 19 countries explicitly prohibit the procedure. Posthumous conception is well within the capabilities of modern medicine—technology is no issue. Instead, by far the most significant roadblock to ameliorating the situations of families torn apart or truncated prematurely by conflict—for whom procreation offers a pathway to recovery—is insufficient or absent legislation. While posthumous reproduction might strike some as an unnatural development of assisted reproductive technology, families devastated by conflict deserve the opportunity to reproduce.

Ukraine—currently reckoning with war’s devastating effects on families—offers one of the most prominent contemporary cases of posthumous conception policy, reflecting a growing movement towards preserving not just present life, but future life as well. In November 2023, the Verkhovna Rada, the nation’s parliament, presented a bill that would provide state funding for the cryogenic preservation of soldiers’ gametes. Yet an outcry soon arose over a provision—made known to the public by Ukrainian lawyer Olena Babych—that would trigger the disposal of all preserved gametes in March 2024 if the progenitor were no longer alive. For many partners of deployed soldiers, this loophole undermines the purpose of preservation: The surviving partner should be able to use the deceased defender’s preserved reproductive material to carry on their legacy whenever they see fit. Such a severely curtailed timeline for gamete preservation could easily make procreation impossible for those not immediately prepared to enter parenthood. A February 7 amendment to the bill, passed unanimously in the Verkhovna Rada, now ensures state-funded preservation for three years following the defender’s death; the surviving partner may choose to pay for continued preservation after the three years elapse. While the amendment is certainly an improvement from the previous disposal policy, Ukrainians should have the assurance of preservation for as long as the conflict continues. Ukraine could still be embroiled in conflict three years from now, and prospective parents whose partners have already been killed deserve the opportunity to postpone their pregnancy until peace is reached.

Indeed, Ukraine is facing a terrifying escalation of a long-running demographic problem. In 1991, after Ukraine gained independence from the Soviet Union and plunged into an economic crisis, the nation witnessed a major population decline, rendering current 20- to 30-year-olds a disproportionately small demographic. The war has further cut into their numbers, both in the form of battlefield casualties—it is estimated that about 70,000 men have been killed over the past two years, with almost double that number sustaining serious injuries—and civilian emigrants, as large portions of the population flee the country. Ukraine is therefore confronting the dual dilemma of ensuring both that it retains the capacity to meaningfully repopulate after the war, and trying to win the war in the first place. A bill currently moving through the Verkhovna Rada, for instance, which, if passed, would levy harsher punishments for draft evasion and lower the minimum draft age from 27 to 25, furthers the second goal while imperiling the first. Policy that promotes posthumous conception represents one of the few avenues to ensure the nation’s future while allowing for the defense of its present. 

While Ukraine’s prominent position in current major conflicts makes its case especially pertinent, the question of wartime reproduction policy is relevant on a global scale. However, with no precedent for such legislation in most nations, it is useful to look at commonalities in the law codes of states that already have established protocols for posthumous reproduction. Some of the most important unifying themes include prior consent of the deceased to have their gametes retrieved, permission for retrieval and use assigned to a spouse or common-law partner, and distinctions made between retrieval and use. These principles inform gray area cases in which the legality of insemination, sometimes due to the ambiguity of gamete ownership, is in question.

Israel, one of the 11 countries permitting posthumous reproduction, is experienced in conflict and ardently pronatalist. As such, it may be the most useful point of comparison for Ukraine. Israel boasts the highest fertility rate in the Organization for Economic Cooperation and Development (OECD). Offering federally-funded in vitro fertilization (IVF) for all female citizens aged 18 to 45 with fewer than two children, the nation places immense value on procreation and legacy. Now, in the wake of October 7, Israel is considering a bill that would allow the retrieval and use of a deceased soldier’s sperm without prior consent. This bill stipulates that if the deceased soldier’s partner does not want to retrieve and conceive with the deceased’s gametes, the deceased’s parents could instead claim ownership and identify another consenting woman to carry and claim legal motherhood over the progeny. This two-pronged legal dilemma—one, the lack of the deceased’s prior consent to the retrieval and use of their gametes, and two, parental rather than spousal ownership of gametes—is uniquely pertinent to conflict zones, where constant danger and the financial strain of war make starting a family especially difficult.

If it legalizes posthumous gamete retrieval and reproduction, Ukraine will likely have to contend with the limitations and permissions of gamete ownership. Regarding consent, implementing an opt-out policy similar to opt-out organ donation systems established in countries such as France and Italy would eliminate the problematic ambiguity of absent consent. Under an opt-out framework, the possibility of posthumous extraction and use of gametes would be understood as a condition of deployment unless explicitly prohibited by the individual conscript.

A danger in pronatalist policy, especially as it pertains to expanding rights to gamete ownership and use, is its link to ethnic nationalism. Legalizing state-sponsored posthumous reproduction for soldiers, for example, exclusively facilitates reproduction for military defenders. Broadly, a soldier’s death in combat may be regarded with less resentment by their loved ones if the country they represented provides every opportunity to carry on their legacy. In Israel’s case, military service is mandatory for Jewish citizens as well as male members of the Druze and Circassian minority communities; conscription notably does not apply to Arab citizens. As state-sponsored posthumous reproduction is guaranteed for conscripts, a clear link can be made to the indirect exclusion of Arab citizens from Israel’s pronatalist policy. While service puts Jewish Israelis in danger of conflict, it also ensures the facilitation of their genetic continuation, drawing clear, priority-based ethnic distinctions. Israel’s pronatalism, supported by the nation’s Zionist ideology, encourages and favors the expansion of the country’s Jewish population, depriving Arab citizens of their access to reproductive services. This demonstrates the danger that pronatalist policies, when informed by ethnic nationalism, could present to marginalized populations. While state-funded IVF and the expansion of posthumous reproduction rights are, as medical procedures, not inherently political, the motivations behind them are. Should Ukraine take notes from Israel, it must consider the political implications: Enabling posthumous reproduction must be inclusive to all citizens, with zero ethnic limitations. 

Under the condition of equal access under the law, policy facilitating posthumous reproduction is both viable and highly important. The incursion of mass casualties, familial pain, and loss warrants the expansion of opportunities to reproduce—especially in the context of a severely depleted population in search of ways to regenerate. Ukraine is a useful example of a country devastated by conflict and lacking in relevant legislation; it has taken an important step by ensuring free prolonged cryogenic preservation of deceased soldiers’ gametes, but enabling posthumous reproduction is the next step. Retrieving and conceiving with gametes from progenitors whose deaths have come at the cost of ineluctable conscription marks essential progress in the applications of assisted reproductive technology. For as long as peace cannot be reached, posthumous reproduction may offer something of a salve to the irrevocable damage of violent conflict.