27 Journal of Law, Medicine and Ethics 347 (1999)
ETHICAL AND LEGAL ASPECTS OF SPERM RETRIEVAL AFTER DEATH OR PERSISTENT VEGETATIVE STATE
Carson Strong
Several methods have been reported for extracting sperm from a man after he dies or enters a persistent vegetative state (PVS). Although such sperm retrieval could be performed for nonprocreative purposes, such as research, in this paper I focus on cases involving procreative intent. Since 1980, more than ninety cases have occurred in which family members requested sperm retrieval from patients who died or were irreversibly unconscious, with the intent that a wife, girlfriend, or other woman would be inseminated. Recently, the first report of pregnancy and birth following postmortem sperm retrieval appeared in the media.
In these cases, death or PVS typically is caused by anoxic injuries, trauma, or rapidly progressing infections. Because these illnesses are unanticipated, an important feature of these cases has been an absence of the dead or irreversibly unconscious man's explicit prior consent to sperm retrieval. By “explicit prior consent,” I mean written or verbal consent that the man gives to health care professionals. In a number of reported cases, sperm was retrieved despite a lack of such consent. One of the main issues raised by these cases is whether it can be ethically justifiable to retrieve sperm without explicit prior consent. Exploring this issue is worthwhile not only because requests for sperm retrieval following death or PVS are becoming more frequent, but also because it leads to important questions about the meaning procreation has for individuals. Is procreation following death something that should be valued? When people express their wishes about use of their gametes for procreative purposes after death, are there important reasons to respect those wishes? How much importance should we attach to the freedom of wives or others to have sperm retrieved for procreative purposes after a man dies or becomes irreversibly unconscious?
Is explicit prior consent ethically necessary?
Some have put forward the view that postmortem sperm retrieval and insemination should not be performed without explicit prior consent. For example, J. Stuart Horner, chair of the British Medical Association's ethics committee, has stated, “The special nature of genetic material, which is used to create new life, makes it particularly important that genuine and explicit consent is obtained for its use.” Something close to this view is accepted as a matter of policy in the United Kingdom, where the Human Fertilisation and Embryology Act forbids the storage of sperm after death without the man's prior written consent. Similarly, in Western Australia, the 1991 Human Reproductive Technology Act forbids use of gametes without the explicit consent of the gamete provider, thereby ruling out any postmortem use of sperm to which the man had not consented before his death.
What seems to underlie the view that explicit consent is necessary is a concern to respect previously alive persons and, specifically, to be respectful to their dead bodies. A potential for disrespect arises from at least two features of postmortem sperm retrieval: the physical manipulation and the reproductive implications. . . . Although the concern about reproductive implications has not been articulated thoroughly, for now we can say at least this much: it is disrespectful to previously alive persons to use their gametes for reproductive purposes to which they would have objected. Because respect for the previously alive person includes respect for that person's autonomy, any disrespect that might otherwise be involved in postmortem sperm retrieval is removed if the person autonomously gave explicit prior consent.
My main thesis is that the ethics of postmortem sperm retrieval is not as straightforward as these advocates of explicit prior consent think. Although requiring explicit prior consent might initially appear ethically sound, it involves a problem that needs to be addressed. Specifically, in other areas of medicine where decisions must be made in the absence of explicit prior consent, it is recognized as respectful of patient autonomy to make decisions in accordance with the reasonably inferred wishes of the patient. Consider, for example, decisions about whether to procure organs from brain-dead patients who have not signed donor cards or previously discussed organ donation with their physicians. In such circumstances, it is possible to respect the autonomy of the previously alive person when it can be ascertained what that person would have wanted. Family members might be asked whether the patient had ever expressed a desire to donate organs after death. If it can reasonably be inferred that the patient would approve of organ donation, then removal of organs for transplantation would be respectful of his autonomy.
Similar considerations seem to apply to postmortem sperm retrieval when explicit prior consent is absent. If it is reasonable to infer that the previously alive person would approve of sperm retrieval and insemination, then carrying out such procedures would be respectful of that person's autonomy. I use the expression “reasonably inferred consent” in situations where the patient is no longer alive (or is mentally incompetent) and it is reasonable to infer that the patient would have approved of the procedure in question when alive (or when competent), if somehow the patient had been given an opportunity to do so. According to this usage, it is appropriate to say that there is reasonably inferred consent just in case there is sufficient evidence to make it justifiable to believe that the patient would have consented, if the patient had been given the opportunity to do so.
I am only claiming that reasonably inferred consent provides a basis for respecting patient autonomy--and not that reasonably inferred consent makes postmortem sperm retrieval ethically justifiable. The fact that autonomy is respected does not in itself make the retrieval justifiable; additional arguments are needed to support that claim. However, if the purpose of explicit prior consent is to protect patient autonomy, then why should reasonably inferred consent not be considered an acceptable way to respect patient autonomy as well?
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What constitutes reasonably inferred consent to postmortem sperm retrieval?
Given that there are reasons to respect a person's reasonably inferred wishes concerning procreation after death, we need to ask what circumstances--absent explicit prior consent--make it reasonable to infer that a previously alive man would approve of postmortem sperm retrieval. In some cases, the wife and other family members could claim that the man would want the retrieval and insemination. However, a problem in this type of situation is that those who are providing an account of the man's wishes have a conflict of interest. The wife's claim that her husband would want retrieval can be biased by her own desire to have a child. Parents of the man, parents of the wife, and other family members might similarly be biased by their own interests or concerns for the interests of the wife. Thus, it can be argued that their claims do not constitute sufficient evidence for inferred consent.
A solution to this problem of bias might be sought by asking whether independent grounds exist for thinking the man would agree to retrieval. We might consider how plausible it is to believe, for example, that a married man with no children would want his wife to be inseminated with his sperm after his death. It seems apparent that most married men want to beget children with their wives. Many men want to have children who will carry on the family line after they die. In addition, many married men would want to promote the interests of their surviving wives. These considerations tend to support the idea that a man would agree to sperm retrieval, particularly if he knew, somehow, that it is what his wife wanted. However, other considerations pull us in the opposite direction. Some men would not want to beget a child in circumstances where they would be unable to participate in rearing. Some might not want the family line to be continued if they could not influence the development of the child. Because of these conflicting possibilities, it is difficult to argue that there are independent grounds for inferring that the man would consent. Absent prior statements by the man on this topic, attempts to “construct” his wishes will be speculative.
Nevertheless, there is a type of situation in which it can be reasonable to infer that the man would consent to retrieval, despite the wife's conflict of interest. When a patient has previously discussed postmortem sperm retrieval with his family and has stated that he would approve of it, such statements could overcome the problem of bias. In these circumstances, the evidence would involve, not merely the family's attempt to guess what the patient would want, but also accounts of what he had actually said about retrieval. Although cases to date have not involved patients who have discussed these matters with their families, in the future, we could see such cases, given that the topic of postmortem sperm retrieval is being discussed more widely. Admittedly, the problem of bias is not completely eliminated in such cases; family members' interpretations of the patient's previous statements might be influenced by their own interests. Even so, cases are possible in which a family gives a convincing account of a patient's previous statements that he would want postmortem sperm retrieval. For example, when several family members give corroborating accounts, this can add credibility to their claim that the patient would approve of the procedures. Similarly, if family members were to agree on the details of what the man said, or the occasions on which he said it, this would add credibility to their story.
Moreover, a previous explicit statement--whether written or verbal, but not necessarily given to a health professional--by the man concerning postmortem sperm retrieval would seem to be required for making a reasonable inference that he would approve. Absent an explicit statement, attempts to infer his wishes would be defeated by the problem of bias.