Judicialization of Consent and Judicial Reconstruction of Will in Post-Mortem Assisted Reproduction

Abstract

The importance of the study on the topic of this article is justified in the face of judicial questions about the expression of will and consent to carry out the post-mortem assisted reproduction technique, which can generate the search for judicial reconstruction of the will of the deceased, given the absence of the manifestation of procreative will expressed during life, through the free and informed consent form. Having as main focus dealing with consent and the manifestation of procreative will in post-mortem reproduction, carrying out a case study, in an attempt to verify the position of the judiciary regarding the (un)necessity of the free and informed consent form for the use of the technique of post-mortem human reproduction. To cover possible demands, such as those addressed in the judgments, for assisted reproduction procedures, the will of the participants must be expressed, regarding the fate that will be given to the cryopreserved embryos in the event of dissolution of the conjugal society, or of the stable union, in case serious illness or in the event of the death of one or both donors of the genetic material, or also in the event of withdrawal from the procedure, whether for any reason, the treatment intended to be carried out. The position that the judiciary tends to adopt in the absence of an express and unequivocal statement from the deceased regarding the fate of the frozen genetic material is that, in principle, there will be no possibility of using the genetic material for the purpose of procreation. postmortem. With exception for situations in which the reconstruction of the will of the deceased can be carried out using robust evidence, sufficient to conclude with precision and clarity, the legitimate posthumous procreative will.