Chilling Aspects of Procreation
Medicine and Law 2002; 21(3): 567-586
Due to the possibility of storing gametes and pre-embryos, conflicts over the use of pre-embryos and post mortem insemination have found their way into the courts. Case law allows parties to conclude an agreement as to the destination of their pre-embryos in case of divorce or death. These agreements shall be presumed binding. However, if the agreement leads to forced procreation, this will not be allowed. If there is no agreement, or no agreement that can be enforced, the Davis rule will be applied: the right to procreate and the right to avoid procreation will be balanced against each other. If post mortem procreation is not prohibited, the role of a third party, i.e. the doctors or the future child, should also be taken into account.