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The law for in vitro fertilization is still adapting as the world adjusts to new technological advances.

The law in Spain only allows genetic material to be used for 12 months after a person has passed away and this can create some problems, according to FOX News in “Judge allows woman to undergo in vitro fertilization with dead husband’s sperm.”

The story begins when a Spanish man undergoing cancer treatment that could render him infertile, decided to freeze his sperm for possible later use by his partner. After the treatment, the couple started the process of in vitro fertilization but did not complete it, since his condition got worse and he passed away.

The day before he passed away, the pair were married.

After his death, the Spanish woman unsuccessfully attempted in vitro fertilization four times. The clinic refused her a fifth attempt without a court order.

The interesting aspect of this case is that the government chose not to argue in court on legal grounds that the woman should not be able use the sperm. Instead, the government argued on the moral grounds that it was impossible to know whether the man would still want the child or even if he would still want to be married to the woman, if he were still alive.

The government took the position that the man could not consent to having a child, but the judge was not persuaded and ruled in favor of the woman.

Similar cases are expected to appear with greater frequency and present a challenge to current estate planning law.

Reference: FOX News (March 23, 2017) “Judge allows woman to undergo in vitro fertilization with dead husband’s sperm.”

Mr. Amoruso concentrates his practice on Elder Law, Comprehensive Estate Planning, Asset Preservation, Estate Administration and Guardianship.