Taking Sperm After Death

I read this story this morning and I’ve been trying to figure out what I think about it since then.  I’m still not sure.

A young man died tragically after being assaulted on the street.   His mother arranged to donate his organs.   At the same time, she wanted to collect his sperm so that she could use it at a later time to create grandchildren.   She is quoted as saying “I want him to live on,” Evans said. “I want to keep a piece of him.”  In addition, according to the mother, the young man had wanted to have children.   She sought and obtained a court order allowing her to have the sperm collected.

I wrote about a somewhat similar circumstance not so long ago.   In that case the man had already donated the sperm and the court declined to allow his parents to use it.   That post in turn will take you back to yet another instance of a similar problem.   Each is a slightly different variation, but I think all raise the same larger questions.  How do we relate to the stuff from which children are created?

Consider this:   The mother of this young man is undoubtedly doing a good deed when she donates his organs.   I gather that she has the right to consent to do this.  And I imagine that if she had anothcer child, say, who needed one of the organs, we would allow her to direct the organ to that child.  (While I think this is so, could I be wrong about that?)   Would it be different if she wanted to donate his sperm to someone else who needed it?  

Now the fact is, we don’t think about sperm that way.   Perhaps that’s because it’s generally pretty simple in this country to just buy the sperm you need.   You cannot, by contrast, by a heart or a liver or a cornea.   Sperm is commodified–bought and sold.  Organs are not.

I’m not sure that ought to make the mother’s request more difficult.  Assume she is her son’s heir.   She gets his property.  If sperm is simply property–which is consistent with the idea that it can be bought and sold–then it is effectively hers anyway.   That’s certainly the way we’d treat other property.

But this analysis doesn’t seem quite right to me.   While the sperm may not be in the same category as the organs, it also may not be in the same category with her son’s books and furniture.  Is it in a category all by itself?   This is important because law tends to operate by sorting things into categories and then treating all elements of a category similarly.

Now let me turn to a different question.   Is it legally significant that he wanted to have kids?   I understand this might help us understand why the mother is acting as she is.  But I want to focus on the law question.

I fear this may sound callous, but I don’t think he can have kids any more.  By this I mean I don’t think he can be a parent.   If the sperm is used at some point to create embryos that are transferred into a surrogate (this seems to be the plan) who eventually gives birth to children, I don’t think he’d be the father of those children.    They would be genetically linked to him, but it doesn’t make much sense to me to consider him to be the legal parent of the children.  (He’s clearly not going to be a social parent.)

Given all this, how should the judge decide whether to allow the mother to collect the sperm?  I think her desire to have some part of her son live on, as she puts it, is quite understandable.   Does that mean we should let her do this?  Are there interests other then the ones I’ve considered?  If there were no evidence that the son had a specific desire to be a parent, should it change the outcome?  How about if there were evidence that he did not want to be a parent?    And if instead of a bunch of judges ruling on a series of cases a legislature wanted to establish some general rules, what should they be?

I’m really uncertain about all this.   It needs more thought.   Comments would be great.

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12 responses to “Taking Sperm After Death

  1. There are no self-evident rules for this or for organ dontation, etc. ‘Comments would be great’ only if you’re looking for the latest philosophical or philanthropic fashion. But then clearly that’s why people write blogs in the first place.

    • I suppose what I’m looking for is some clear and consistent thinking–something I might agree with or not that would help me clarify my own thinking. If you’ve read this blog you’ll see that I’m fairly opinionated about many things. This one, however, I cannot quite work out.

  2. How did the woman obtain a court order allowing her to collect the sperm? I think you need to give consent in life for someone to collect your organs after death, shouldn’t you have to do the same for sperm? And the mother’s report that he wanted children should not suffice in that regard.

    Also, Julie, I love your blog! You are one of what seems like very few people writing about these types of current events in a clear and thoughtful manner.

    • I don’t really know how she got a court order. She went to a lawyer who asked for an emergency hearing. The order she obtained runs against the medical examiner, who must have custody of the body. Do you suppose the ME was the defendant? As a technical matter of procedure, it’s a curious case.

      I think part of the reason I’m getting stuck here is that while I can see the mother’s interest, I am not sure who else has an interest here. (This makes it hard to see the legal case–who’s on the other side.)

      That’s also why I cannot figure out the importance of his reported desire to be a parent. Is that important because we need to consider the deceased son’s interest? I suppose this sounds dreadful, but I care less about his interests than about those of the living.

      Now part of me wants to say that sad though it is, there is no way the mother can save her son. And there is something a little unsettling about the idea of her hiring a surrogate to bear her grandchildren so that she can have a living reminder of her son. At the same time, putting aside my misgivings about surrogacy, who is harmed by this?

      • Obviously I’m not approaching this from a lawyer’s perspective, however, here are my two cents. I think your answer may lay in the last part of your last sentence “who is harmed by this”. As bizarre as this whole idea to use sperm from a dead son seems it only is really bad is somebody gets harmed by it.

        The mother follows mostly her heart because naturally she wants grandchildren. In addition she reports her son wanted children. Therefore it comes across as if that’s strengthening the case, however, no matter whether her son wanted children or not she still wants grandchildren. That means she would go for it one way or another.

        Who is harmed by this? The son won’t be harmed one way or another since he’s dead.

        The mother might be psychologically harmed in case she can’t get any grandchildren. Nothing humankind hasn’t dealt with though ever since we started to exist. With other words, even though this would be very sad for the mother, she can probably survive this.

        The “child” in case one gets born one day from the son’s sperm might get harmed if there aren’t any parents to take care of it. Who will raise the child? Will the mother, in this case grandmother, take care of the child? Because no matter what the mother wants, a child, maybe even several children , can be born one day if the court rules that it is legitimate to use the sperm. And those children have the right to grow up in normal circumstances and not in foster homes if possible. I think the real debate is really what’s best for the child and not what’s best for the mother. Of course the mother shall enjoy the grandchildren and the grandchildren shouldn’t grow up apart from her, however, the grandchildren should be granted a stable home environment in case something happens to their grandmother.

        Now, if I were the mother I would probably want to go ahead and use my dead son’s sperm as well if the possibility arose. Same if my husband died and I could still use his sperm to get children from him. I would be so selfish and wanted those children but my selfishness wouldn’t do any good if those children were to grow up under unstable circumstances.

        • Lawyer or no, I’m quite inclined to approach things as you do, by asking who is harmed. Sad to say, I see this as an easier case than some in that regard. The son is dead and thus, really beyond any harm I can contemplate. The cases where two living people fight over disposition of frozen embryos created with their genetic material are more difficult.

  3. The whole thing creeps me out. The son’s body does not belong to his mother–I sense this is her reasoning, though. She has no rights to his sperm. So she wants grandchildren? It’s really tough. The fact that it hurts no one doesn’t negate the fact that the only person with rights to your body is you unless you specify something in writing. Not only does he have the rights over his sperm, he should decide how they get spread around. I admit this could be “OK” for the child if Grandma hung around and raised her and told the kid every day how Grandma got Daddy’s sperm and made the miracle happen. You know, this could be the kid’s special “story” (so this is one scenario where the child isn’t “hurt”), but really, it just makes me wretch. And yes, if the child ended up in foster care because of this scenario, that would be inexcusable. The guy’s not a father and Mother scooping his sperm to create a pseudo-grandkid doesn’t make him one. I say when you die, you take your wigglies with you.

    • I do find the questions here somewhat confounding.

      I will also confess terrible ignorance here: Could the mother agree to donate his organs if he had not signed an organ donor agreement during his life? I think probably in some places–perhaps many places– she could. And I think that is an easier question, which seems a bit odd.

      Is gathering the sperm different from gathering the organs? I think it might but, but I’m not exactly clear on why. Is having your sperm used after your death more significant than having your heart used?

  4. Julie, don’t you think sperm are different because of their potential to create a new life? I do. If it is a woman’s right to an abortion because of privacy, surely Mommy has no right to come and collect this guy’s sperm and use it to create a grandchild–which, btw, isn’t even a grandchild in my view because “grandchild” per se is a social construct and not just a biological one and there ain’t no “events” here that led to the creation of a grandchild except the actions of the guy’s mother. Parents create/adopt/raise kids and their parents get to be grandparents. You only get to be a grandparent because of something somebody else did.

    • From on outsider’s point of view, it does seem to me that sperm might be different because of that potential. But I cannot quite see if that difference holds up from the point of view of the newly deceased man. In fact, taking the sperm is somewhat less intrusive then taking major internal organs, isn’t it?

      I don’t think the analogy to abortion holds up, really. For me, at least, the reason a woman has a right to decide about abortion is about autonomy. That interest doesn’t really survive death. The better parallel would be an egg donor, I think.

      And I agree about the grandchild, I think. I think that’s an interesting observation about grandparents.

  5. Agreed about abortion–bad analogy now that I think of it.

    Couple more points. I just read the piece and the young man was 21. So I don’t think this holds up as parents making decisions to donate their dead children’s organs. Therefore, in many respects, I wonder why she had rights to any of his organs. If that’s an issue not surviving death, then why do we have organ donor cards?

    I just read that in Ontario, there’s a move to switch from organ donor cards to an electronic registry. The rationale behind this is specifically to push back the influence of the surviving family. Turns out there are lots of people running around the province with signed donor cards but hospital staff tend not to go through the person’s belongings after a traumatic death (too much time) and instead approach the family who give their 2 cents–often contradicting what is stated on the organ donor card if located! In this context, the problem is that too many families refuse to donate the organs, and we actually have a very low number of deceased donors annually–something in the neighbourhood of 170. It is hoped that the electronic registry will circumvent this problem and take the family out of the picture. So there must be some thinking here that the decision ought to come from the individual.

    Also, I still think that taking reproductive cells for the express purpose of creating a child differs from taking a heart to be used in another body. How? Yes, that is the conundrum. First, she has no right to say “This is what he wanted.” Somebody pointed out on the comments that if you allowed this, you ought be able to vote for your dead family member. Second, by creating a child she is going beyond using the organs per se and wandering into the territory of reproductive decision-making. A heart beats the way it should in another person’s body but she’s going to take the sperm and “do” something with it. This is where it seems to me she is overstepping completely.

    • I think I agree with you that there seems to be something different about taking reproductive cells vs. taking organs. I just don’t feel quite able to articulate exactly what I think that difference is just yet.

      I suppose if he’d left some signed statement saying something like “I’d like to have my sperm collected and donated to a local sperm bank” I’d think it was reasonable to honor his wishes. What about if he’d left something that said ‘I’d like my mother to have control and choose a surrogate, etc.”? It’s something he probably could have done in his own lifetime (assuming that the surrogacy is done legally and all). This makes me wonder if the problem is really that I don’t believe the mother?

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