The Ethical and Legal Consequences of Posthumous Reproduction

Arrogance, Avarice and Anguish

Browne Lewis

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781138021358
• eBook ISBN:
  9781317664833
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Posthumous reproduction refers to the procedure that enables a child to be conceived using the gametes of a dead person. Advances in reproductive technology mean it is now possible to assist in creating a life after you die, and in recent years the number of women who have attempted to get pregnant using posthumous reproduction has increased. However, the law in many jurisdictions has not put regulations in place to deal with the ethical and legal consequences that arise as a result of posthumous reproduction.

This is the first book to exclusively focus on posthumous reproduction. The book comprehensively explores the legal and ethical issues surrounding posthumous reproduction in a number of jurisdictions including the US, Israel, the UK and France. The book looks at a number of issues including: ascertaining the wishes of the dead and protecting the reproductive rights of men who have deposited frozen sperm in clinics prior to their deaths; cases involving people who want to acquire fresh sperm from deceased or incompetent men and determining who should have the right to accept the sperm; identifying the parents of the posthumously conceived child; and discussing the need to promote the best interests of the child. The book critically examines the current laws that are in place and proposes additional regulations and policies in order to effectively regulate posthumous reproduction.

Part I

Ethical concerns and legal regulations

1 Ethical concerns

For some, the ethical argument against posthumous reproduction can be summed up by the sentiment expressed by bioethicist Arthur Caplan who said: “the core principle is not to reproduce anyone without their permission.”¹ From a legal perspective, an expert had asked: “Is it appropriate to consciously bring a child into the world with a dead father?”² Posthumous reproduction has been hailed as a medical breakthrough that can give comfort and hope to men who freeze their sperm to maintain the possibility of being fathers; to people who want to have children for the men they love; and to parents who seek to fulfill their dreams of becoming grandparents. Nevertheless, posthumous reproduction is not without its critics. The arguments against using posthumous reproduction to conceive children are aimed at the existence of the procedure and the impact its use has on the parties involved. Most of those arguments are made by bioethicists relying on the principles of bioethics and/or philosophical theories.

Arguments based on biomedical ethics principles

Every semester, I begin my health law and ethics class with a discussion of Beauchamp and Childress’ four principles of biomedical ethics.³ Those principles are autonomy, nonmaleficence, beneficence and justice.⁴ Adherence to these principles helps physicians to remain true to the provisions of the Hippocratic Oath.⁵ Furthermore, all of these principles have influenced the legal regulation of the field of medicine. The need to protect patient autonomy led to the development of legal torts like medical battery⁶ and lack of informed consent.⁷ To ensure that physicians adhere to the principles of nonmaleficence and beneficence, the tort law system was created. Anti-discrimination laws like the Americans with Disabilities Act (ADA) are in place to bring about justice and fairness in the health care system. For instance, persons with physical and mental disabilities are entitled to the same quality of health care as similarly situated non-disabled patients.⁸

Autonomy

The autonomy principle is synonymous with patient self-determination. The legal recognition of individual autonomy permits patients to make voluntary medical decisions, including the decision to withdraw life-sustaining treatment.⁹ Doctors must respect medical decisions of their patients.¹⁰ In the legal context, autonomy is the driving force behind the development of the informed consent doctrine. Therefore, the main ethical objections to posthumous reproduction revolve around the issue of consent. The dead or vegetative man is the patient whose autonomy must be protected. Consequently, it is unethical to use his frozen sperm or to extract his fresh sperm without his consent. By respecting the man’s autonomy, the fertility clinic also protects itself from liability for torts like medical battery and lack of informed consent. In some jurisdictions, if a fertility clinic releases a man’s frozen sperm without his consent, it may be sued under the torts of bailment and conversion. Consent may be expressed, presumed, inferred or substitutional.

Expressed consent (oral/written)

Prior to his death, the man may explicitly give his consent to posthumous reproduction orally or in writing. Under certain circumstances, it may be appropriate for courts to deem the man’s oral consent to be satisfactory. The man may not be given the opportunity to give his written consent with regards to the use of his sperm in the event of his death. For example, the fertility clinic agreement may not contain a provision asking the man to state the manner in which he wants his sperm disposed of if he dies before it is used. In addition, the man may not feel that promises he makes to his spouse or significant other need to be in writing. An emergency situation may also prevent a man from giving written consent to the retrieval and use of his sperm. For instance, a young man who has not contemplated death but who has expressed an oral desire to have children, may die or become incapacitated. Given his age and good health, the man may not have felt that he needed to put his wishes in writing. The man should not be deprived of the opportunity to procreate because his clearly expressed agreement to posthumous reproduction was not provided in writing.

The main problem with oral consent is evidentiary. At the time the dispute arises, the man will be dead or incompetent, so he will not be able to state his position with regards to posthumous reproduction. Thus, the court will have to learn the man’s intentions from the person seeking to obtain his sperm. Even if that person’s testimony is credible, it would be self-serving. A decision as important as whether or not to reproduce a person should not be based solely on this type of evidence.

The only way to make sure that posthumous reproduction is consistent with the desires of the dead or incompetent man is to require that his consent be in writing. The best way to avoid conflicts and problems regarding the disposition of the man’s sperm after he dies or becomes incapacitated is to have his written consent. Therefore, this is the preferred type of consent. In some countries, including the United Kingdom, the gametes of a dead or incompetent person cannot be extracted and/or used for conception without that person’s written consent.¹¹ This approach is also recommended by the Ethics Committee of the American Society for Reproductive Medicine.¹² Written consent has its advantages. It prevents a person from obtaining a man’s sperm by fraudulent means. Moreover, it assures the man that his wishes with regards to his sperm will be carried out after his death or incapacitation. Judicial economy also dictates that a man’s consent be in writing. Any time there is no concrete proof of the man’s intentions with regards to the use of his sperm, the possibility of litigation remains strong. Therefore, in the absence of written consent, courts will be forced to intervene whenever there is a dispute regarding the extraction and/or use of the sperm of a man who is dead or in a vegetative state. We have witnessed this type of intense litigation in cases involving the withdrawal of food and hydration from patients in vegetative states.¹³

Presumed consent

A man’s consent may be presumed. The reasoning behind presumed consent is that a reasonable man would agree to have his spouse use his sperm to conceive a child. This approach may make sense in cases where the man dies while he and his spouse are undergoing IVF. The fact that the man is participating in the process indicates that he wants to have children. This theory of consent would presume that the man’s death would not change his desire to procreate. Presumed consent is permitted in Israel as long as the person seeking to use the sperm is the man’s wife.¹⁴ In the United States, there are no laws regulating the process of posthumous reproduction. However, the majority of states have laws that regulate artificial insemination. Courts may rely on those laws when determining whether or not to permit a man’s sperm to be used without his written consent. If a married man consents to the artificial insemination of his wife with donor sperm, he is the legal father of the resulting child.¹⁵ In the majority of jurisdictions, the husband’s consent must be in writing.¹⁶ Nonetheless, at least one state statute authorizes courts to presume the man’s consent.¹⁷

There are two other possible types of consent that have not yet been legally adopted. The first type is inferred or implied consent. Under this theory, a man’s consent to posthumous reproduction would be implied from his actions. Those activities might include leaving property in his will for future children or making other financial arrangements for his potential offspring. Once a man is told that his condition is terminal and he does not arrange for his sperm to be destroyed, he should understand that posthumous reproduction may be a possibility. If he fails to take actions to eliminate the option, his consent to posthumous reproduction using his sperm might be implied. For instance, a cancer patient who freezes his sperm before undergoing chemotherapy should anticipate that, in the event of his death, his partner might want to conceive his child. This approach has been taken in cases involving children conceived using artificial insemination.¹⁸

Substitutional consent

Healthy young men do not often think about having children. In fact, even if they are married or in a serious relationship, they are often preoccupied with avoiding fatherhood. Young men may postpone fatherhood because they are not ready for the emotional and financial responsibility of having children. Unfortunately, young men are regularly severely injured and killed in accidents. Some of those men end up in a vegetative state. Because of their condition, these men are incapable of giving any type of consent. Very few young men have advanced directives indicating the type of life-sustaining treatment that they would want in the event they become incapacitated. If a man did have an advanced directive, it would probably not indicate what he wanted done with his sperm.

In London, a woman asked the court to give her the right to take some of her comatose partner’s sperm, so that she could have his child. At that time, the man, who had suffered several heart attacks, was in a persistent vegetative state and was subject to a Do Not Resuscitate (DNR) order. The woman dropped her case after the media implied that she was trying to have a child in order to get some of the man’s money.¹⁹ These cases present unique problems for doctors because the man is unable to give consent. Hence, prior to extracting or releasing the sperm the clinic has to decide what the man would say if he was capable of expressing his preferences. In those types of situations, the courts may permit the doctors to rely on what I call substitutional consent.

Substitutional consent is consent that is given by someone on behalf of the incapacitated patient. The need for this type of consent is found in cases involving incompetent patients who are rec...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• Part I Ethical concerns and legal regulations
• Part II The sperm
• Part III The child
• Part IV The balance
• Index