Second Thoughts

It’s not me having second thoughts–sorry if that heading mislead you.  A couple of different things have gotten me thinking about gamete providers and second thoughts.

First there is this decision–a significant one, I think–from Illinois.  It’s been in the newspapers, but you can read the actual opinion as well.   It’s long and deserving of some real consideration.   (I’ve also written about it before at an earlier stage of the proceedings.)   For my purposes here, though, I’m not going to dwell on the opinion. (I’ll do that another day, soon I hope.)   A bare-bones version of the facts will do.

Karla Dunston and Jacob Szafranski were dating.   Karla was facing chemotherapy that would very likely destroy her ability to produce eggs.   I think this was before the days of reliable egg freezing, but whether this is true or not, Karla thought to preserve her genetic material by having the eggs fertilized and then freezing the pre-embryos.   To do this, she needed sperm.  She asked Jacob if he would provide the sperm.   He agreed to do so.

If you read the facts in the opinion you’ll see that precisely what the plan was is a little vague.  This does not seem to be a case where a couple creates embryos planning to use them together.   The relationship here was neither that serious nor that stable.   So it seems that Jacob agreed to provide sperm so that Karla could create embryos that she might use at a later date, very likely without him as a parent.    It seems to me he had, in effect, agreed to serve as a known sperm donor.  (Notice that here “donor” seems the right word since he wasn’t paid.)

Now if all had gone smoothly there would not be a 56 page court opinion.  But it didn’t go smoothly.  Jacob had second thoughts.  He didn’t want Karla to use the embryos.

There’s another reason I’ve been thinking about regrets:   While the opinion in that case is quite recent, there’s a blog post that’s been around for a while.   Leah Campbell was an anonymous egg donor when she was 24.  (Here “egg donor” is her term, so I’m using it, but she was compensated for her participation in the enterprise.  Could make you question the “donor” part.)

She knows that children were born using her eggs.  This was seven years ago and while Campbell doesn’t say she regrets her decision (indeed, she says “I refuse to ever regret my decision to donate”) I think it is fair to say she has at least some second thoughts, or maybe further thoughts , especially about the anonymity part.    She’d like to know the children who were created, and would like them to know who she is.   (I’m rather surprised that the global publicity her blog post gained didn’t seem to accomplish this.)

I don’t really think any of this is surprising.   I’ve written here in the past about regret.   Providing gametes that will be used to create a child you will not know or will know but will not raise is a serious decision.   It’s also almost assuredly a decision many people would look at differently at different stages in their lives.    What might seem like a fine idea at 25 might not seem like a good idea at all at forty.

But of course, this isn’t only the case when you’re thinking about providing gametes.   There are many serious decisions people make in their 20s that they may come to regret.   To get married, to have children (in some conventional way), to place a child for adoption, to enlist in the armed forces, to take/not take a particular career path, to get a particular tattoo and so on.  The question for me isn’t whether or not some people will regret their decisions—I’m sure some will.   The question is what to do about that.

One extreme choice–one I reject–is to prevent them from making the choice they might regret.   You could make it illegal to do the thing and then no one could decide to do it and no one would have regrets about having made that decisions.   But, as I say, I reject that approach.  I think the cost (restricting people’s freedom) is too high.

Short of that, you can try to structure the situation in which the choice is made so that people will stop and think carefully.  (You can also impose limits on who can make these decisions–as we generally do by requiring people to be over a certain age.)

Decisions about providing gametes tend to be structured that way.   In general people providing gametes for ART will always have time to reconsider.   The overall process for both egg and sperm providers requires repeated visits over time.   And you can actually see several opportunities in the process described in the Chicago case where Jacob might have reconsidered.   But of course, he didn’t.  And that’s the thing about providing opportunities–some people won’t take them.  And then they are left with second thoughts and perhaps regret.  I think that’s just the price of having freedom to choose, I guess, but it is a price we should acknowledge.

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14 responses to “Second Thoughts

  1. I agree that there are some choices there is simply no going back pon, notably sale of goods after three days I think that its pretty much a done deal and the other person is the new owner of a vehicle or gym membership or whatever. However the choice to marry is one you can change your mind about. Pretty much any verbal or written agreement that is not illegal to enter into is one that a person still has a right to get out of otherwise they would not be free people; the right to change our mind and not keep a promise, even when its rude as hell, is pretty much the essence of freedom. Every private contract has an exit clause and discussion of penalties for terminating for convenience. Courts generally don’t require specific performance because of the 13th amendment correct? It makes sense that a court would not force a person to do something they would otherwise not be required to do by law. They are free to contract out of it and pay whatever damages there are to the other party. That is fair and reasonable.

    • It’s true that court’s aren’t wild about specific performance, but they will order it on occasion. But I don’t think you have to see this as specific performance. If he had promised that he would produce sperm and then changed his mind and said he didn’t want to, I think your specific performance point would be apt. But he promised to produce sperm and did produce sperm and then his sperm was used. It’s not even a question of getting his sperm back. So, for example, if he had provided sperm and it was frozen and she wanted to use it and he said he’d changed his mind. I think that’s a different case.

      His sperm has been used–and used in exactly the manner he originally agreed to. Now he wants to stop the rest of the process from going forward. I’m not saying that he doesn’t have arguments, but I don’t see that any further performance is required of him. He isn’t going to be ordered to do anything.

  2. I’d like to go a little further here. I know that courts frequently treat human tissue as personal property when settling embryo custody disputes and its a bit troubling. Not because I think eggs or sperm or embryos are people in their own right as if life begins before birth – not like that at all, but because human tissue is part of a human who is human with rights and freedom to change their mind about donation and conditions. Their cells are not actually transferrable property they always have the right to recall their gametes or their embryos and have the right to change their minds about whether or not they want to reproduce. It’s very scarry that people really believe they can buy and really own another person’s cells along with their reproductive freedom of choice and decisionmaking power. I mean the fact a woman has no other alternative for having her own biological child is very sad but it does not mean that the man she conceived embryos can’t change his mind and decide he does not want to have kids with her anymore. Cad though he may be he does not owe it to her to have a child with her and if he can prevent her from becoming pregnant – in that state where he has no authority over her body then he should be able to prevent himself from reproducing. Forcing him to reproduce against his will is wrong. Yes he agreed yesterday but today he no longer wants to. That is real life people are in love one day and not the next things change and they no longer want to have offspring with a particular person. Millions of women have had their relationships fall apart right when their bio clock is ticking its last tock

    • To be clear, some of what you have written might be how you would like it to be but might not reflect the way things are currently structured. It’s not clear to me that people always have the right to recall their gametes, though it makes a certain amount of sense that they would.

      The problem, of course, is that once egg and sperm are combined to create an embryo, if one person wants to recall her/his gametes it means destroying the embryo. That might mean–as was the case in Illinois–destroying the last available genetic material of the other person.

      Perhaps this problem will become more rare as egg freezing is now possible. If the woman had just frozen her eggs there would be no issue here. But I’m afraid there will be quite a few cases where there are frozen embryos left over from IVF and the people who caused those embryos to be created no longer agree on what should happen to them.

      If you do reach a point as in the case in Chicago, it seems to me you can decide it either way. You can say that her interest in having a genetically related child is stronger than his interest in not having his sperm used or you could say that his interest is greater. It’s not clear to me that one of those is very obviously the “right” resolution. Given our current social emphasis on the importance of genetics, her interest is strong. And you articulate his conflicting interest.

      For me it is important that she relied on him. Surely he could have said “no” originally. If he had she could have made other arrangements. But he said “yes.” That seems to me important when you get to the equities of the situation.

      • OK reverse the situation and it was the very last of his good sperm and she’s a perfectly healthy friend of child bearing age who has decided she does not want his wife to have the embryo implanted….Should he be able to force the issue?

        • Assuming same facts I think the answer has to be yes–it has to work both ways. That’s if it is his last chance at genetic child. (And of course he cannot force her to carry the pregnancy.)

          Don’t assume I think agree with this reasoning, though. I’m not at all sure I do. It’s essentially resting on an assumption about the unique and unmatched importance of a genetic child–an assumption I don’t rush to embrace. I might reach the same result, but more likely because one is bound by what one promises when others rely on you to their detriment and you cannot otherwise make it up to them.

    • “Millions of women have had their relationships fall apart right when their bio clock is ticking its last tock.” This is very important. people seem to forget that ART is just a form of reproduction. No one seems to think it those mens legal or ethical obligation to procreate with their ex wife or girlfriend as promised. As sympathetic as we may feel, The last chance factor simply doesn’t weigh in.
      This reminds me of some people who think that a person who commisions a surrogate has a right to dictate what she can or can’t eat etc. because THEIR embryo is in her body, forgetting that in regular ole reproduction, a man who impregnates a woman has no authority in that area at all. Don’t know if you folks see the comparison but it all comes down to a view of ART being somehow different and ruled by property rights.

      • I think both your comparisons (the last chance and the surrogate) are fair, but I also think I can (fairly) draw a line between this behavior and that. Your man who changed his mind hasn’t actually used up her last eggs. She still can take action. You can find a donor from a bank pretty darn fast, I think. Once her last (and let’s assume we know last) eggs are mixed with her sperm he has effectively prevented her from taking any other action. Thus, I think there’s a point where the analysis changes (for both of them). Again, I’m not saying which way I’d come out, but if I think I can justify drawing a line there. (I know others will differ. Just saying my view.) In any event, you are surely right that the man who has simply made a commitment in some form can change his mind. She cannot possibly force him to produce sperm to impregnate her. And I agree that even if his sperm is on the shelf, as it were, she cannot force him to give it to her. It’s the fact that she uses it (with his consent) to create embryos with her last eggs that crosses the line in my book.

        As for the surrogate, I believe in strong rights to bodily integrity. Thus, the surrogate controls her body. The man controls his. (This is why he cannot be forced to produce sperm.) I’ll even give him rights to control his sperm after it has left his body. By this I mean he can say “no you cannot use it.” But to me this is no longer the same clear bodily integrity right. And again, once it has been mixed with her last eggs, then I think I would weigh new factors. His rights against hers and the promises they made each other. Now I’m really not sure how substantial her rights are–you know I’m skeptical about the importance of genetic relationship. But I do care about people keeping their word. Again–I think I can draw a line because I don’t see his interest in bodily integrity being implicated in the same way as the surrogate where he gave up his sperm and permitted its use.

  3. On regret: since we do not know how individuals will feel, we should instead create policy with the goal of promoting pro-social behavior, not preventing regret. In my opinion, encouraging bonding and responsibility between parents and offspring is pro social behavior. we should therefore not be encouraging policies that expect people to emotionally disassociate from their offspring, at least their known offspring. (i place unknown offspring in a separate category as too most people it may seem more theoretical than real).

    • This seems quite a sound approach to me. The point about policy being made to promote pro-social behavior, I mean. Of course, then we need to reach agreement on what “pro social behavior” is. But it seems we also agree that the “avoiding regret” rationale is, at least by itself, a bad basis for making policy.

    • Until our childfilled society values lives of people without children better and doesn’t put those with children on a higher status level without children I don’t think things will change. The demand to become a parent in our society is driving a lot of this. To me those with children have a responsibility to change things. Instead of shaming these people who do things they never had to do parents should be doing more to change societal attitudes.

      • I don’t think I share the view of the world reflected in this comment. I’m not convinced that it is status that drives the desire many people feel to have children. I’m sure that part of the desire for children, at least for some people, is socially constructed. I’m thinking here particularly of women who may feel that they aren’t complete unless they want to be (and perhaps are) mothers. But I also think this has diminished in the past 20 years or so. Certainly larger and larger numbers of people are choosing to be childless.

        It does seem clear that some people very much want to have children and some people do not want to have children. I don’t have any general idea what lies behind these desires. Among those who really want to have children, some will not be able to produce genetically related offspring for any number of reasons. That raises many difficult questions, including whether what they want is to have a genetic child or whether what they want is to have the experience of raising a child. People answer this differently.

        What troubles me is when people suggest that raising a genetic related child is qualitatively different (and better) than raising a non-genetically related child. But I think this is a different point than the one you are making.

  4. “So it seems that Jacob agreed to provide sperm so that Karla could create embryos that she might use at a later date, very likely without him as a parent.” This assumes that Jacob held the view at the time that discounts genetics as a father, an assumption we can not make. In any case, I don’t see his intentions as relevant, since I oppose intent as a criteria in definng parenthood.

    • Right. You can certainly say his intentions are irrelevant, but as far as I can tell from the facts, when they started he didn’t intend to raise this child, taking the role of social/psychological parent. I should go back and reread to check and will do that as I am able to. On the road right now.

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