The Problem of Posthumous Children Revisited

Many months ago I wrote about a UK case involving the problem of posthumous children.   I recently came across the denouement of the case and thought I’d use the occasion to consider this problem once again.   I’m also going to tie in the recent post about the fight over use of frozen embryos after the death of one of the gamete providers.

Here is the story, or at least a version of it.   (I’m sorry to say that the account I linked to becomes increasingly confusing, at least as to legal rules, the further you read.)

A young man died unexpectedly during surgery.  He was survived by his wife and daughter.    It is possible to retrieve sperm from a man for a short time after his death and, at the widow’s request, this was done.   Her hope was to use the sperm to create children she might give birth to at some later time.   Thus, as she thought about it,  she would create a brother or sister for the surviving child.

The problem, of course, is that the husband never consented to any of this.   He had not donated his sperm.   He had not planned to donate sperm in the future.  He had not arranged to have his sperm retrieved in the event he died during surgery.   He had certainly not agreed to the use of his sperm after his death.  

So at that point, the hospital/clinic had the sperm safely frozen, but the wife couldn’t use it.   It is unlawful to use sperm without consent in the UK.   (Indeed, it was apparently unlawful for the hospital/clinic to even store the sperm without consent.)

The woman, who was clearly both persuasive and determined, came to the US.   Given the unbounded ART market here, it is hardly surprising that she found someplace willing to inseminate her using her deceased husband’s posthumously retrieved sperm.   But the, of course, came the next problem–exporting the sperm from the UK.   This is the last hurdle and one she has apparently now cleared.

The critical fact seems to have been that the woman and her husband had discussed fertility with a gynecologist the week before the surgery.  There’s no suggestion that this was done in anticipation of the surgery (which is described only as “routine”) and so it would seem to be simply a happy chance that the consultation occurred in that time frame.   I suppose the consultation allowed the agency too infer something about the husband’s wishes.

In some respects this case is a closer one than the frozen embryo case from Australia I discussed not long ago.   In that instance the deceased gamete provider, a woman,  had intended to donate her eggs.    They had (during her lifetime) been mixed with her boyfriend’s sperm to create pre-embryos suitable for IVF.   (You may recall that the fight in the Australia case was between the boyfriend, who wanted to continue on with the plan, now using his sister as a surrogate, and the woman’s mother.)

In any event, you can see the host of questions raised in this type of case.   It is obviously easiest if the donor gives express permission to use the materials after his/her death.   But there will be many cases where either the donor’s permission does not contemplate the donor’s demise or where, as here, the sperm is gathered (without permission) after the donor’s demise.

There are many interesting and important questions here which I’m not going to try to answer right now. Instead, I want to offer a couple of observations about that fit with my general discussion of parentage.

I would not call the deceased man the father of any child that results.   Whether any child born to the woman has a second parent will depend on the circumstances of their lives.    But this is not to deny the possible importance of the genetic link to the decedent that will exist.   It may have great meaning within the life of that family.  In the same way, I can appreciate that the surviving daughter might feel some greater kinship with another child who has a tie to the man who was her father.

Does this seem inconsistent with what I’ve said before?   I think it should not.   I do not deny that we can invest a genetic connection with meaning.   This is an instance where people do give it meaning.   But to the extent that “parent” or “father” is a legal (as opposed to simply a social) category, I think it ill-advised to give the genetic connection that particular meaning.


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