The Ethical Debate: Reproduction after Death

September 28, 2011Carole 1 Comment »

With technology comes new opportunities and always new ethical questions. I subscribe to a professional andrology list-serve group to keep up to date on the sperm side of things. Most of the topics are usually medically oriented  for male urologists but recently there’s been a pretty animated discussion about the ethics of posthumous sperm retrieval and the use of that sperm to fertilize an egg and create a child. Professionals in the ART field, like everyone else in the world, have both visceral and contemplative reactions to the idea of posthumous reproduction. Interestingly, the various viewpoints could broadly be lumped into two camps, those who felt individual rights were primary and those who felt that the rights of the surviving family or the “greater good” were primary.

I had the opportunity to work with a hospital  ethics committee on a case in which a mother of a teenager wanted to retrieve sperm from her brain dead son. In the committee, as on the list-serve, opinions largely adhered to the same two perspectives : individual rights versus the greater good. In the committee case, the boy had suffered a traumatic injury and had agreed to be an organ donor on his drivers license. The mother asked for sperm retrieval to occur at the same time as organ donation. Sperm can be surgically retrieved from the testicles.

Some argued that the brain-dead son was incapable of providing consent and so it would be unethical to remove sperm without his consent. It is a basic principle of modern medicine that patients must routinely give consent for medical intervention performed on their person. However, if the patient is incapable of providing consent (think emergency medicine) they still receive treatment- thank goodness! We wouldn’t want that principle to be interpreted too strictly when we are most in need of help and least able to make decisions about our future.

Another wrinkle to this individual rights argument was advanced by some members pointing out that in this case the patient was a minor and so could not give true consent under any circumstances. Aha! but others argues that parents’ routinely make medical choices  for their children, including to preserve either sperm, eggs or gonadal tissue for their children who are facing possible sterility from exposure to chemotherapy drugs. Sometimes, these parental-approved interventions occur even in the face of protests from the child. Most ethical guidelines recommend that as minors approach adulthood, depending on their maturity and ability to understand, they should be asked to give assent for procedures, even though legally they are not able to give consent for a procedure.

True, the opposition countered, but that preservation is for the minors OWN use (and benefit) when they ready to make their own reproductive choices as adults, not for the parent’s benefit. Many times to side step these ethical issues,  the consent form or storage contract for gamete preservation for minor cancer patients makes discarding of the specimen the only option in case the cancer patient does not survive the cancer.

Others felt that it was precisely the parent-child aspect of this particular posthumous request which made it unacceptable. This group felt that it would be ethically more acceptable for a wife (or even female partner) to request sperm retrieval and use sperm for reproduction  from her dead husband or lover, especially if the partner could assert that they had planned to have children in the future.

Wanting children in the future is not the same as wanting children to be created after your death. Posthumous reproduction has legal, not just ethical implications. In fact disparate state laws on the interpretation of who is  eligible for social security benefits have resulted in opposite decisions at the federal level.  The U.S. Court of Appeals for the Ninth Circuit issued diametrically opposed verdicts  so that a posthumous baby born in California was denied Social Security benefits (Vernoff v. Astrue, 08-55049 (9th Cir. 6-17-2009)) while one born in Arizona received the benefits (Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004)). The difference in verdict depended on whether biological parenthood was enough to establish paternity or whether the intent of the dead to conceive children after their death was of primary importance. Attorneys recommend that couples facing the possible death of their partner have the dying partner establish in writing their wish to conceive children from their gametes after their death if that is indeed their wish.

Some members of the ethics committee advocated the greater good argument saying that life should always be supported and allowing this family to continue its line was a greater good. Others felt that allowing the mother this small comfort would ease the terrible loss of her son and in time she would probably discard the specimen without using it.

In the end, after much heated debate, there was no unanimous decision and the matter was settled by a practicality. All the local providers who could perform the procedure had policies in place requiring informed consent from all their patients so all declined to participate in the posthumous sperm retrieval.

Lest you think this option is only open to men, a judge in Israel agreed to allow a family to have eggs removed and frozen from their deceased 17 year old daughter. In the face of public outcry, published reports are unclear as to whether in the end, the eggs were frozen.  The family withdrew their request to have the eggs fertilized and the judge refused their petition on the grounds that there was no evidence that the  deceased daughter had ever expressed a desire to have children posthumously. Interestingly, in this article about the case, “Dr Ruth Kannai, from the Hebrew University of Jerusalem in Israel, describes the  ‘eternal continuity’, a belief that in her opinion, motivates family members to want to donate their loved one’s organs to others so that part of their loved ones  may live on or likewise preserve gametes of their loved ones to achieve a kind of immortality. According to Dr Kannai, ‘Not only the child’s tissues will live a little longer, but also the genes will survive – something that is seen by lay people as staying alive for ever – simply by having descendants’.

So in the end, where we stand determines what we see.




© 2011, Carole. All rights reserved.

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