Posthumous Children Again

Sorry I’ve been away for so long–life intervened.  But I know discussion has continued, and I’m grateful to those who carry on without me.   Anyway, I’m back and getting started again.

I’ve written in the past about legal issues that arise when children are conceived after the death of the person who provides the genetic material necessary for conception.  Typically this happens when sperm has been frozen (which would generally only happen with the consent of the provider) or harvested after death (this sometimes happens without the consent of the provider).   You can read about a selection of cases and approaches if you follow the link above. 

So here’s another iteration of the same basic story.   (My thanks to Spin Doctor for leading me to this.)   Melissa Amen conceived her daughter, Kayah, seven days after the death of her husband, Joshua.   The couple had been trying to conceive when he died and since he had cancer, Joshua had some of his sperm frozen.   I think the implication here is that it was frozen so that it would be available for use in the event treatment left him sterile.   It’s not as clear (to me anyway) that there was also a plan that she would use the sperm in the event he died.  

Cases like this can raise a number of questions.  Should the use of sperm be permitted after the death of the man who provided it?   Maybe that depends on the specific circumstances–perhaps the answer is only if he specifically agreed to this?  Perhaps, if you think DNA is the sine qua non of parenthood, it should never be allowed, because it will necessarily result in a fatherless child?  (There are many assumptions packed into that and it isn’t what I think, but it is certainly  a plausible way of thinking about it.) 

Apart from questions of permissibility, there are what I think of as collateral questions.  If you do this and a child results, is the child the heir fo the deceased?   And the question raised here–which you could understand as a related question–should the resulting child be eligible for the Social Security benefits the child of a deceased parent receives via that parents Social Security account? 

Before thinking about this I should note that if the wife is pregnant when the man dies (and I think it matters not whether she got pregnant via ART or pregnant via intercourse) then I think the answer to these questions is fairly clear.   It is as if the child were born during the man’s lifetime.   This means that she or he can inherit and receive social security just as any child born before the man’s death would.    

The first question (Could the child be an heir?) is actually a bit misleading.   If the child were named in the will it seems to me the child could inherit.  (I’m not a trusts and estates person, but I think a competent lawyer could figure out how to arrange that.) The question probably should be whether the child would inherit in the absence of a will–which is to say, via intestacy. 

It has occurred to me that there are ways to think about these questions other than what I’ve done here before.   I think I’ve tended to focus on the “is the man a father” question.   But a different approach would be to think about why the law operates the way it does in the first place.  Why does a child born before the husband’s death relieve social security benefits?  Why does that child inherit via intestacy?  

I cannot say whether this will turn out to be a useful inquiry.  Perhaps it just will circle us back to the “is he a father” question.    Maybe it takes us to other questions that aren’t useful–things like why intestacy is structured as it is. (I think that is because it is supposed to accomplish what people would have wanted had the gotten around to writing a will.)   If that’s the case, then it seems to me it would only make sense to include children that the man planned to create.   In cases where the sperm was harvested after death, it makes little sense to say he would have included it in his well.  

If you follow this line of thought, social security is perhaps a little different.  It might be that the benefit is understood as a substitute for support that the husband had been providing.   But since it is tied to income, you might also think of it as something he earned and is entitled to direct.  

The problems lurking out here are the ones we have talked about before.  There’s a potential for dozens of children created years after his death.    That time line along poses new problems.   But it might be worth a few minutes to think some of this through from a different direction.


22 responses to “Posthumous Children Again

  1. I think it should be allowed if the man consented to it, with a specific woman. It should not be made available to anyone else.
    I would also say it can be used to create one child only and only within a short period of the man’s death. That way it is less dehumanizing, it is helping him have the child he wanted to have, and the one his partner had hoped to have with him. The further along one goes the less tied it is to the actual person and the more it treats him as some plain old material.

    • I think a dying man, or a soldier departing for war, should be allowed to have sex with his wife even though there’s a good chance he might not survive to see the birth of his child. A woman should be allowed to die during child birth, a man should be allowed to die during pregnancy, so the child has no enforceable right for the parents to be alive when the child is born. But that doesn’t mean there is a right to intentionally create a child of someone who has already died, even if they expressed that desire.

      There is no right to intentionally create a person at all, whether by a single person or a marriage. There is just a right to marry, and the marriage has a right to have uncontracepted sex, and the spouses have a right to be healthy and fully functioning. Some say there’s a right to have unmarried sex too, and at least they have a claim that people have been having unmarried sex in the state of nature even after civilization took hold and the concept of rights and responsibilities took hold, but even then, an awful lot of unmarried sex was basically rape, or at least coercion or deceit or prostitution else pure animal wild beast mating. Anyhow, there is no frozen posthumous conception in the state of nature, married or not.

  2. There’s also a psychological issue that Marilyn brought up before; is the partner trying to somehow bring back her husband??? It won’t work

  3. Although I’m not sure how it could be legally restricted at all. My understanding is that legally, reproductive material once removed from the body becomes property and the owner of the property can do with it as they choose.
    If she is the legal owner of the sperm- whether by transfer of ownership during his lifetime or via will, I don’t see that we can regulate what she can do with it at all, even though we might consider it wrong. She could even sell it to a stranger if she so chose.
    A friend of mine undergoing cancer treatments froze embryos together with her husband but they arranged it so that legally, it would be solely her property and in the event of her demise, they would be discarded. Her husband would have no access to them in the event of her demise.
    I’m just using this as an example to show how these things go according to property laws.

    • She can make cookies with it, but she can’t make a new person with it, because that would violate the rights of the new person, which the rest of us have an obligation to protect. And all intentional creation of human beings is unethical and violates human dignity, even freezing your own stuff to use in case you become infertile later in life.

      • I really don’t get why you say that intentional conception is unethical. Humans have been doing it since time immemorial, albeit through much less scientifically corroborated methods.

        • The Catholic Church has done a bang-up job explaining why only conjugal love is ethical, and made many valid points about the source of human dignity and why there is no right to a child, only to have sex. I would add some other concerns, such as needlessly exposing people to risk and suffering and causing resources to be taken from the hungry and sick in order to create unneeded people who will then take more resources. The only way to justify creating a person is by it being an accidental result of a people doing what people have a right to do, in spite of the possible suffering that it might cause. I’m not a pro-natalist, in the sense of someone who thinks everyone should be trying to make babies all the time, by whatever means they can. I’m a hippy environmentalist, but not to the extent where I think we should be trying to limit procreation and distribute birth control and condoms, that’s no good either.

          • I think some of the natural law scholars associated with the Catholic tradition do as good a job as anyone of articulating this view. But unless you accept a lot of the underlying premises, it isn’t terrible persuasive. For instance, they assert that loving and consensual sex that isn’t potentially procreative is wrong, even when the participants are married. I am unpersuaded.

            Similarly, they assert that a child must only be created as a natural part of intercourse. Again, I reject their assumptions. I simply do not think that the precise manner of conception is all that important. Indeed, making such a big deal of it strikes me as rather odd.

            My real point here is that if you accept the underlying premises, you will accept the conclusions, but unless and until you do, you won’t. It’s very hard to offer a justification that gains traction with those who do not start from the natural law premises.

            I actually don’t think that this is always true in the topics we have been discussing here. I think it is possible to justify (or try to justify) particular outcomes by reference to other sorts of things–the well-being of children, say. It seems to me there is an important distinction between these sorts of arguments.

    • If you’re wondering how the policing could be done, to stop the underground market for freezing gametes and doing IVF, I think sting operations would be easy enough, with big fines and jail time for people that offered the service. It might not stop it all but people would know it wasn’t a legal option and wouldn’t feel pressured into paying for the service. This reminds me of the funeral industry, especially as it was portrayed in the 60’s film The Loved One. In that movie the funeral home offered a special service to launch the Loved One’s remains into orbit, but it’s the same idea.

  4. I can see government intervention in the buying and selling aspect, similar to body organs, but not against personal use.

  5. A couple of thoughts in response to the comments (thusfar?). These are about the general question of should posthumous use of genetic material be allowed, not the subsidiary questions about inheritance/benefits.

    There’s an overarching question that I think you can see raised here from time to time. There’s at least a couple of different ways to frame the crucial issues here.

    You could see this as an individual rights question, but then the question is whose rights. The rights of the survivor who wants to use the material? If that’s the case, then what right is it? The right to dispose of property as you want to? If not that, is there any other relevant right? Although it should be clear that much of what John Howard says is statement of opinion rather than statement of existing law, I am inclined to agree with his opinion at least in part here. I am not inclined to think that any of us has a right to reproduce with material from any other particular person. (Okay, so it’s only narrow agreement, but it’s agreement.)

    I have trouble finding another person who could assert a right here. In general I’m not sure our rights survive death. And there is no one else at the time we are thinking of–before the material is used.

    But you can probably think of this in a different way. Many people would assert that we should be allowed the exercise of personal choice/freedom unless/until our actions will/may cause harm to another. So you could think about who is harmed here. Again, I don’t think that the person who has died figures in here. I understand that some will say that the person harmed is the to-be-created child. The harm, I take it, would be being conceived and born after the death of the man who provided the sperm. But I don’t see that as a harm, particularly. Remember–I’m prepared to allow the same woman to concieve a child with material from a person she does not know. This being the case, using material from her former husband, say, cannot be more objectionable.

    So maybe it does all just return to that basic question about using gametes from a person who won’t be raising the child. We know we disagree about that, at least.

  6. I am not very familiar with the right to dispose of property after death, isn’t that why wills are made?
    The property rights I referred to are the surviving spouses property rights, if she obtained ownerships of the sperm while he was alive.
    Am I correct that bodily tissues once outside the body are treated legally as property?

  7. I’m collecting a series of really interesting links on organ and tissue harvesting from non consenting dead people and living people. Items harvested of course include eggs and sperm. Gametes amd organs are taken at hospitals by workers when people die and people in in poorer countries are straight up kidnapped and murdered like hundreds of previously refrigerated female bodies – women in Juarez (city of dead girls) found hollowed out including ovaries minutes away from state of the art medical centers in El Paso. They are also taken from living patients without consent or with consent but the patients own treatment not for research or for producing offspring with other patients.
    If something is worth buying it is also worth stealing. The clinic fabricate donor profiles for the stolen genes or simply sell the stolen genes marketed under the donor number / profile of a legit donor who gave consent. DNA profiles are not tied to the donors so dna cannot be confirmed associated with a real donor when the vial is purchased or when procedures are done and the children are not positively tied to a donor by paternity testing either. There is ample opportunity for fencing stolen genes there is also ample opportunity for mistakes and current practices make catching the fraud or mix up very unlikely

    I’ve been thinking about the fact that consumers should know for sure that the child they are raising dna matched to the selected donor who is a real person who filed his or her consent and intent in court. I think there should be a law that gamete purchasers understand they are not the legal parents of children conceived wirh gametes from a person that did not consent. If the error is discovered after care giving has gone on a substantial period of time the records can be corrected so that a proper adoption can proceed but we need an environment where bodily integrity is respected. I don’t believe the people raising the child should have the right to simply claim privacy, too much is at stake. I’m not saying they should have their parental rights stripped but they should be adoptive rights or something. I think a waiver should be signed by intended parents if a mixup occurs they may not get to keep the child proceed at risk

    • There’s no question that the trade in organs is disturbing and perhaps no part of it is as disturbing as the black-market trade in vital organs where it appears that people are indeed kidnapped and killed, at least on occasion. It is probably true that, to paraphrase what you said, if a thing has value it will be stolen. And there will be a black market, too. In general organs (like kidneys, say) cannot be bought/sold–that’s an area where we have resisted commodification almost worldwide. But still they can be stolen and sold because they have value. Whether we commodify items or not doesn’t determine that they have value. Kidneys have value because they are vital to life itself. So while I agree that this is all quite chilling, it isn’t just about commodification. (I’m not suggesting you said it was, by the way, just following this train of thought.)

      Surely we need safeguards and I am not sure what form they need to take. But it is probably also worth keeping things in perspective. There may be–there are–terrible abuses. But are they common. If I go to one of the major sperm banks, is it very likely they’re dealing in stolen sperm? Why would they need to? Why take the risk? I say this not because I don’t think we should worry about the organ trade, but because we should probably be pragmatic and realistic and think about where/when abuses are likely to occur and then figure out what to do about them.

  8. I keep thinking about this issue from your point of view where caregiving makes a person a parent so we really need multiple ceckpoints before insemination or implatation and if not at that point at least at birth before the child leaves the hospital. We’d need to sttop the cargiving process before it starts i guess maybe in eutero testing so there is a plan in place at birth? I want to stop it before it gets that far but there should be certification at each stage.

    • Here I am not sure I understand what you mean. Why do we need mulitple check-points? What are we checking for? What is the in utero testing for? What is it you want to certify?

  9. I’ll answer both questions at once. If I go to one of the major sperm banks, is it very likely they’re dealing in stolen sperm? Why would they need to? Why take the risk?

    Well I could go into it off line with you but a not insignificant number of vocal activists in this arena have located their fathers and they turned out to be their mother’s doctors. As I get closer and closer helping some people search its looking to be the case as well. If not their mothers actual physicians, faculty within the department. Not Donor number whatever. That of course is coming up because of these DNA clubs for lack of a better term, in some instances immediate family members are members and there is no place to hide. Its obviously touchy because it almost crosses an ethical line. I say all that, not because the doctors stole their own sperm, but because it was free and why pay for something you can make youself. The only reason they are being found is because you can trace the surname from a dna report not just back to the campus where all the students in the donor pool are but right into their office into the exam room.

    If doctors or corporations can get gametes for free by skimming patient samples, or from cadavers donated for research or from whatever sick underground black market is fencing organs and ovaries from murdered girls along the Mexican border or from Palestine or Israel and the Ukraine, why would they pay? What the people don’t know won’t hurt them they can just sell the stolen gametes under the donor profiles of real donors who consented. Its unlikely that anyone will ever find out that the child is not related to that particular donor but if they did say two siblings with the same donor DNA test and they don’t match each other because it was really a patients sperm or sperm from a research cadaver….then what? What recourse would the siblings or the people raising them have against the clinic 16 years after the fact.

    As you might say “where exactly is the harm’? Unfortunately the harm done was to the people who did not consent to reproduce or walk away from obligations to offspring that “non-donors” have.

    • It’s certainly not unheard of for doctor’s (male doctors, of course) to use their own sperm and I don’t think anyone contends that this is ethical or okay. I suppose what it shows (if we didn’t know it) is that having an MD doesn’t particularly make you a moral actor. (I think I probably knew that.)

      But the presence of bad actors doesn’t really undermind my faith in all doctors, or all fertility doctors, or all sperm banks, in the same way that the presence of bad actor lawyers doesn’t make me think that all lawyers are unethical. Indeed, I think the major sperm banks are doing far too well playing the game by the rules to take risks like the ones you’re describing. And apart from that, not everyone in the business is willing to do anything in order to make money.

      I’m not saying we shouldn’t have standards of conduct and I’m not saying that we should be blind to abuses. But I don’t want to make sweeping generalizations based on conduct by outliers, just as I don’t want those sorts of generalizations made about me. We need to have methods to root out and punish those who do bad things no doubt. That’s what we do all the time. And it allows us to rely on the people we work with or who work for us the rest of the time.

      • why is it so unethical for the doctor to use his own sperm? assuming he’s had himself tested, whats one anonymous man from another?
        don’t get me wrong, i also get a creepy feeling about it but can’t identify why

        • I think part of what disturbs me is that (as far as I know) the doctor in these cases doesn’t ever tell patients that this is what he plans to do. I suspect if he asked patients would fairly routinely say no. And if he asked and did full disclosure and a patient consented, then I suppose at least this aspect of my concern would be addressed. Absent full disclosure and consent, I think it is a breach of both trust and professional responsibility–and worse than that if anything done creates the impression that the source of the sperm is someone else.

          If there’s full disclosure and all that then I suppose it is a bit like the DIY cases that I posted about earlier, with a professional in the role of the sperm provider. So is it any creepier than those cases?

          • It’s a breach of trust I realize, because the Dr. is NOT anonymous- he knows exactly who they are, and that’s what they don’t want.

  10. I am inclined to think people relinquishing gametes to clinics patients and donors alike should have to agree to have their samples matched to their dna numbers to prevent other peoples gametes from being mixed up with their own or they should at least agree in advance that they will provide dna samples if necessary in order to cooperate with investigations to clarify biological parentage in the event of a suspected mixup.

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