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.