SUMMER REPLAY: Is post-death conception okay?

These days, when you catch yourself musing about what would happen to all your stuff if you were suddenly to die, you might want to give a thought to your eggs or sperm too. Even if they're still inside your body. 

9 minute read

Posthumous use of gametes is now a thing. And it raises challenging questions.

Take the case of a 23-year-old Australian man who killed himself in August 2016. Just hours after his death, at the request of his girlfriend of three years, a court gave permission for his sperm to be extracted from his corpse. Doctors retrieved the sperm and froze it. The dead man's parents supported the idea.

The move was controversial, because it was illegal in that part of Australia to harvest, store or transport sperm without a person's written consent. Although Davis had talked about having a family with his girlfriend, he had not put those desires in writing. But in June 2018, a judge ruled that the girlfriend could use the sperm, now her property, to try to get pregnant.

The man's final decision in life was to die. But those closest to him convinced a court he would have wanted to create life, in the form of his own biological children.

Things turned out differently in the case of a 25-year-old Israeli man killed in a car accident in 2012. His sperm was also extracted after his death. In this instance, the posthumous sperm retrieval was at the request not of a partner, but of the man's parents, and they ended up fighting a four-year legal battle for the right to use it, eventually winning. But their victory was short-lived: not long after, that ruling was overturned by an appeals court, which found that grandparents have no rights to as-yet-unborn grandchildren.

A more troubling case comes from Britain. In September 2018, the Mail on Sunday reported that a wealthy British couple had created a grandchild using their dead son's sperm. The 26-year-old son was killed four years earlier in a motorcycle accident, and he lay undiscovered for three days. His parents persuaded a medical practitioner to remove sperm from his body, despite the fact that he'd never consented. The sperm was then frozen and stored.

About a year later, the sperm was sent by medical courier to the United States, where a US fertility doctor used it to fertilize donor eggs. These came from a woman the grandparents chose, believing she would have been physically, educationally and intellectually the type their son might have married. Four embryos were created, and a male one was picked to be gestated by a surrogate. The grandparents were present for the birth, and they are raising the child, now a preschooler.

Cases like these raise a lot of questions. To what extent do a person's living wishes need to be followed after death, and, in the absence of a written statement, how can it be known what those living wishes might have been? Is it enough to have expressed a vague interest in having children one day? Is it even enough to have written down a clear interest, but not explicitly consented to gametes being removed or used after death? Are regular consents even really enough — are they clear, are they understood, are they signed at a moment of calm clarity?

And is there a limit to what we can presume about a person's intentions? Imagine a 21-year-old woman, brain dead after a car accident. In her wallet is her signed donor card. Two intact ovaries lie within her body. Could her ovarian tissue be harvested and donated to women in need? What if her parents spoke about her generosity and altruism, attesting that she had thought about donating eggs in life, and would have wanted to do something similar in death?

***

Cases where gametes are extracted after death are rare. Much more common are instances where an individual has deliberately stored reproductive material while alive, and then after that person's death, someone else asks to use it.

But although it might feel like it, intrusion into the dead body is not the big issue, says Vardit Ravitsky, a bioethicist at the University of Montreal. "The big issue is about the creation of life," she says. "To do that without the person having agreed to it — it's almost like altering the life story of the person after their death."

Often, the person asking to use a dead person's gametes is the spouse. A woman might ask to use her dead husbands's frozen sperm. Or she might ask to use their frozen joint embryos. She might argue, compellingly, that the fact that they created this embryo is a clear indication of their intent to parent together. The most challenging instances are when the surviving partner has no other option. Maybe the woman requesting the embryos is now in her mid-40s and the embryos are made from her final viable eggs. Maybe the widower asking for the stored embryos has had cancer treatment and no longer has viable sperm.

In 2018, the American Society for Reproductive Medicine (ASRM), a body that advocates for the fertility industry, issued a policy statement on posthumous procreation. It said that if a person explicitly wrote that they would not like to conceive children after their death, that should be honoured, no matter what. But if nothing was written down, it said, there are circumstances where it should be considered.

In Canada, federal law requires explicit written consent before gametes can be removed or used after a person's death. Some places, like Germany and France, forbid it altogether, consent or no consent. Others are inclined, in the absence of written consent, to elevate the rights of the living over the rights of the dead.

True, dead people can't care about whether they'll see their kids grow up or help them through hard times. A long tradition of sperm and egg donation also establishes that at least some people think it's okay to create children from progenitors who won't do these things — donors give their gametes away to absolute strangers and sign away their right to know anything about how those offspring are faring. But considering the importance we place on things like deathbed promises, wills, and legacy giving, says Ravitsky, it's also true that we believe that a dead person's erstwhile values continue to matter after the person has passed. "Think about how much people do to protect their legacy — to shape their legacy," she says.

The ASRM advises that, where state laws allow it, and where a physician feels comfortable with it, the wishes of surviving partners should be taken into account. Unless there is evidence to suggest otherwise, they say, it's reasonable to think that the dead person planned to have kids with their spouse — especially where they created embryos together, but also if gametes were frozen as part of a joint reproductive project. In contrast, the dead person probably didn't intend to have kids for their parents, the ASRM points out. Without explicit written consent, gametes or embryos should not be turned over to parents, they say.

Increasingly, however, parents are the ones doing the asking. Sometimes cases are clear-cut and consented, as with a young engineering student in India, who died of a brain tumour in 2016. Before he underwent chemotherapy and radiation, he had his sperm frozen, and authorized his mother and his sister to use it in the event of his death. His mother did. She mated her son's sperm with eggs from an anonymous donor she chose for him, and she had her cousin carry the pregnancy to term. In February last year, twins were born — a girl and a boy — and the young man's mother is raising them as her own.

Slightly more complicated was a case in the UK, where a woman diagnosed with cancer had her eggs frozen before getting treatment. She told her mother that if she died, she wanted her to have the eggs and to carry and raise a child for her. But after the young woman's death in 2011, the mother was told the consent was inadequate, and she had to fight for the eggs through the courts — eventually winning in 2016, when she was 60 years old.

A recent case in China involved even more twists. A couple who died in a car accident before they could finish their fertility treatment left behind frozen embryos. Their four parents banded together and won a precedent-setting court battle to gain possession of them. Because surrogacy is illegal in China, however, they had to go through further court actions to retrieve the embryos from where they were stored, transfer them out of the country to Laos, where surrogacy was legal, and have a surrogate there carry the baby to term. In December 2017, four years after his parents' deaths, a baby boy was born.

Did the couple want their kids raised by a team of grandparents? We can't ever really know. The ASRM points out, astutely, that in cases like these, the only evidence of a dead person's wishes is the testimony of the people who want to get their hands on the gametes — "a person bearing an apparent conflict of interest."

***

And what of the children? Some have called posthumous reproduction "planned orphanhood." Will children born from dead people's sperm and eggs feel undue loss? Will they be psychologically harmed? The ASRM warns that grandparents in particular might put pressure on a child conceived this way to somehow replace or resemble the deceased. Some ethicists have countered that it's always better to be born than not. We can't know for sure how the practice affects the people born until we start hearing from the offspring themselves.

In the meantime, there are the practical questions. Should babies born after their parent's death be entitled to a cut of the inheritance? Should they qualify for survivor benefits? These are live questions. In 2019, for instance, a Quebec tribunal decided a child born some two and a half years after his father's death had no right to an orphan's pension. This was despite the fact that the child's sibling, also born after the father's death, but only about half a year after, would get the pension. There is, some would argue quite reasonably, a 300-day limit.

Laws that exclude posthumously-conceived children risk creating an underclass of kids. But laws that include them mean the door on liability might never really close. Given that offspring can be born years or even decades after the death of the progenitor, things could get very messy down the line — and they could stay messy, for as long as the freezer stays cold.

A version of this item was originally published in HeyReprotech on March 5, 2019.