Corrette Ploem on Postmortem reproduction and the Dutch Embryo Act
17 October 2023
The role of written consent
The case in question involved a woman who wanted to use her deceased husband's frozen embryos. They had previously undergone fertility treatment in which they had a daughter; the remaining embryos were then stored at the fertility clinic. However, because there was no written consent from her late husband, the clinic refused to make the embryos available for postmortem use and threatened to destroy them. "It was noteworthy that the fertility center had not informed the wishing parents that postmortem use of their embryos was only possible if they had given written consent for it while alive. The parents did not know this while the wife later objected that such consent had not been given by her husband," Ploem said.
Corrette Ploem's expert report
Ploem's report contains a detailed analysis of the implications of the Embryo Act and related laws and regulations for the practice of posthumous reproduction. This allowed her to provide further input in a specialized area of legislation. "Postmortem reproduction is by no means an issue that lawyers and judges deal with on a daily basis. The report not only provides clarity on the rights of wishing parents and the resulting responsibilities for institutions, but it also exposes the interests underlying those rights and obligations," she explained.
The judge was guided not by the letter but by the spirit of the law. I also argued for that outcome in my expert report. An outcome in which all parties ultimately agreed.
The judge's ruling
The judge ruled that this breach of the duty to inform and the testimony of family members of the deceased husband were jointly sufficient grounds to require the clinic to release the embryos. This allowed the woman to continue treatment, either at the clinic or elsewhere. "The judge was guided not by the letter but by the spirit of the law. I also argued for that outcome in my expert report. An outcome in which all parties ultimately agreed."