Reproducing after death: a critical analysis of the Portuguese law regarding posthumous assisted reproduction

Abstract

This paper intends to perform a critical analysis of the Portuguese law which recently allowed post mortem reproduction. In this sense, such legislation was passed by the Portuguese legislators at the end of 2021, having been preceded by a popular petition and relevant media pressure, with the aim to ensure the reproductive rights of women whose husband or partner previously died, while disregarding many of the issues caused by such provision. In this paper the authors share their doubts and concerns of the subject, since the questions that arise shall be even more interesting than their answers. The research methodology used is based on the combination of three theoretical-methodological systems, consisting of (i) research involving the analysis of contemporary legal thought, precedents and the Portuguese legislation, (ii) socio-legal research, in order to identify and analyze the deviations in the legal system while relating such deviations to other sciences (ethics, medicine and psychology, inter alia), and (iii) epistemological research, based on the study of the Portuguese legal system as a whole, its legal norms and the legal-philosophical concepts included therein.