If you live long enough you really do see it all. News.Com.Au reports that an Australian judge has permitted a widow to extract sperm from the body of her husband who recently committed suicide to be used for In Vitro Fertilization (IVF) of the woman. According to the report “The woman, whose name has been suppressed, had spent the past two years trying to conceive and recently began in vitro fertilisation (IVF) treatment when her husband, who suffered from severe bouts of depression, committed suicide.” From the article there is a report on some of the reasoning of the court
Under the Human Tissue and Transplant Act, a designated officer at a hospital (usually a senior doctor) may authorise a request from a next of kin for the removal of human tissue from a deceased person for medical procedures. Judge Edelman said sperm fell under that scope. The only restriction is when a person dies in sudden or suspicious circumstances. In those cases permission needs to be given by the State Coroner who did not object to the sperm being removed and stored. Because of the short turnaround time for the hearing, Judge Edelman said the Health Minister did not have an opportunity to appear at the proceeding. He said the Minister would have an opportunity to be represented at any future hearing concerning the use of the sperm for IVF.
This case raises a number of very interesting questions.
First, I think the court’s reasoning distinguishing the extraction of sperm (permitted) versus its eventual use through IVF (which seems may be subject to prohibition later) interestingly implicitly makes a distinction I have drawn in my own work between a bodily integrity right related to one’s reproductive material and a non-use right I have called “The Right Not to Be a Genetic Parent?” The Court seems to suggest a default rule where extraction is permitted as a matter of course (no posthumous bodily integrity) but perhaps a different rule as to the Right Not to Be a Genetic Parent. Second, the case raises the more general question of the nature of the interests of the would-be genetic parent in posthumous reproduction. In The Right Not to Be a Genetic Parent I argued that the strongest argument for such a right is connected to what I call “attributional parenthood,” the attribution by the genetic parent, the child, and third-parties of parenthood to him/her on the basis of the genetic tie. Posthumous parentage, though creates some special problems with this argument. As I suggest in a rather lengthy footnote (n. 64) in that article:
[The reaction we have to some of the non-posthumous cases I discuss involving reproduction without attribution because of anonymity and the like] seems to depend on an assumption of (at least some consequentialist) moral reasoning that there is an “experience requirement” such that “a state of affairs can make me better off only if, in one way or another,” it feeds back into my experience. L.W. Sumner, Welfare, Happiness, and Ethics 127 (1996). Even among consequentialists, this requirement is hotly debated. See id. at 124-28. If my brother’s plane crashes in the Indian Ocean and as far as I know he has drowned, is my life made better off in a world where he actually washes up on a desert island populated by benevolent and beautiful people without any communication with the outside world, rather than in a world where he actually drowns? People have conflicting intuitions about this kind of case, but in terms of legal-system design we do not generally care about unexperienced harms, as is most evident in areas like tort and the requirement of standing. That said, while my account of attributional parenthood treats experience as a necessary requirement, it is not clear to me that someone who did not adopt this requirement would reach a different answer to any of the main cases I discuss.
A different issue, that I do not develop in any depth here, relates to posthumous harms and whether someone must be currently living to suffer the harms we are discussing. This represents a special version of the experience-requirement question, although one where there seems to be more uniformity in intuitions. Consider Baltimore’s posthumously naming an airport after Thurgood Marshall. While it may be better for a number of people (his descendants, his admirers, etc.) for this to occur, it seems odd to think it was better for him after he died. Nor do we think he is harmed if he is posthumously slandered. “Dying has precious few consolations, but surely one of them is that beyond that threshold we are safe from any further misfortunes.” Id. at 127. Thus, for those who believe that what happens after death cannot affect our welfare, the posthumous harvesting of sperm (or perhaps harvesting from those in persistent vegetative states) cannot make that individual worse off. That said, it may be that the fear, while alive, of becoming a parent when dead may itself be a sufficient justification for a rule preventing posthumous use without prior consent. See John A. Robertson, Posthumous Reproduction, 69 Ind. L.J. 1027, 1031 & n.18 (1994). It may also be that maintaining taboos about the treatment of dead bodies is desirable not because of their effect on the dead, who are beyond harm, but because they support norms preventing the violations of bodily integrity of the living. See Michael H. Shapiro, Illicit Reasons and Means for Reproduction: On Excessive Choice and Categorical and Technological Imperatives, 47 Hastings L.J. 1081, 1132 (1996). This is a kind of “modified-experience” argument, see generally Scott Altman, (Com)modifying Experience, 65 S. Cal. L. Rev. 293 (1991), the plausibility of which I leave for another day. At most, however, this argument would generate a rule against sperm harvesting and other bodily integrity violations of the dead, not hypotheticals like the bathtub case involving dead individuals.
Posthumous genetic parenthood might also make others worse off. There are difficult trust and estates issues related to the interests of the already existing children in such cases, see, e.g., Kristine S. Knaplund, Postmortem Conception and a Father’s Last Will, 46 Ariz. L. Rev. 91 (2004), although the inheritance issues only occur when someone is made the legal parent of the resulting child. For one of the very few cases that have arisen on the subject, see In re Martin B., 841 N.Y.S.2d 207 (Surr. Ct. 2007) (holding that children posthumously conceived from sperm deposited at a laboratory for cryopreservation were “issue” and “descendants” of trust set up by grandparent). A larger number of courts have considered whether posthumously conceived children are entitled to receive social security benefits, a determination which turns inter alia on state law on intestacy and determination of legitimacy. Compare Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004) (permitting benefits for child conceived from sperm banked by husband for possible future use), and Woodward v. Comm’r of Soc. Sec., 760 N.E.2d 257 (Mass. 2002) (similar), with Stephen v. Comm’r of Soc. Sec., 386 F. Supp. 2d 1257 (M.D. Fla. 2005) (denying benefits for child conceived from sperm extracted from man’s deceased body based on state intestacy law), and Khabbaz v. Comm’r of Soc. Sec., 930 A.2d 1180 (N.H. 2007) (similar as to child conceived with sperm banked by husband for possible future use).
For a discussion of how “persistent concerns that the dead have ‘nothing to lose’ by destroying property make courts reluctant to permit testamentary destruction” of property more generally, along with a qualified critique, see Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 781, 838-52 (2005).
Third, the fact that this case involves suicide is particularly interesting (and I think the first time I have seen a fact pattern like this). In the trust and estates context, the context where most U.S. courts have dealt with posthumous reproduction issues, in some states the ability for the posthumously conceived to be beneficiaries of the decedent’s social security benefits has depended on showing that they had the intention of reproducing posthumously (and in some of the cases that they had the second related intention of the posthumously conceived inheriting). Such showings are much harder to make in the case of suicide where one might think the decision to end one’s life is some (if not dispositive) evidence of the desire not to reproduce. Even beyond trust and estates, for those who do think the interest in not reproducing survives death one might think a case of suicide is one where posthumous reproduction particularly affronts that interest.
Fourth, it is interesting to speculate whether the fact that the woman had begun IVF was or should be relevant to the decision. At the end of The Right Not to Be a Genetic Parent? I discuss how various fact patterns of female investment in the reproductive enterprise as well as cases where the ability to reproduce further (or at all) is unavailable without access to previously created preembryos should inflect the various default rules for these situations. The saddest fact patterns, at issue in the Evans decision in the EU and Nachmani decision in Israel involve women who due to cancer treatment have now lost the ability to reproduce at all.
Fifth and finally (the post is getting long!) one might ask how the interests of these posthumously conceived children should factor into the analysis, and perhaps argue that a child would be psychologically scarred knowing he was the product of sperm removal from a father who ended his life rather than affirmatively sought to produce the child. In a pair of papers, Regulating Reproduction: The Problem With Best Interests and Beyond Best Interests, as well as a response to commentators Burying Best Interests of the Resulting Child, I have argued that this kind of argument is problematic. Invoking the “Best Interests of the Resulting Child,” a harm principle type objection that claims that a child will be harmed if brought into existence, is problematic if the life provided constitutes a life worth living, for reasons related to Parfit’s Non-Identity Problem and American law’s rejection of wrongful life liability in tort law. Further, I argue that many attempts to reformulate this argument also run into problems, but that’s an argument for another day….