Department of Obstetrics and Gynaecology, Fertility & Reproductive Medicine Laboratories, Royal Free & University College Medical School, London, UK
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Abstract |
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Key words: conception/consent/death/gamete cryopreservation/posthumous insemination
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Introduction |
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Recent advances in egg freezing, embryo manipulation and tissue harvesting have also meant that new treatments are being rushed into use before they are fully proven to be either safe or effective, potentially placing some women and children at risk of physical and psychological harm. The result of this convergence has been a large, uncontrolled experiment in novel methods of creating families without clinical trials. The first documented posthumous sperm retrieval appeared in 1980 (Rothman, 1980), though several case reports involving post-mortem sperm retrieval have since been published (Nolan et al., 1990
; Ohl et al., 1996
; Pozda, 1996
; Iserson, 1998
). Various methods for retrieving spermatozoa have been described, including surgical excision of the epididymis (Rothman, 1980
; Swinn et al., 1998
), irrigation or aspiration of the vas deferens (Kerr et al., 1997
), and rectal probe electroejaculation (Townsend et al., 1996
). A survey of fertility centres in the USA (Webb, 1996
; Kerr et al., 1997
) found that a total of 40 centres reported 82 requests for post-mortem sperm retrieval between 1980 and July 1995. In most cases, the sperm were harvested within 24 h of death. Sperm quality could be very poor depending on how long after death sperm retrieval occurred. Viable sperm could be detected by the hypo-osmotic swelling test and used for PAR with ICSI.
The death of a husband is a difficult time for a widow to make a rational decision about whether or not she wants the sperm of a dead husband to be harvested (Aziza-Schuster, 1994; Bahadur, 1996; Strong et al., 2000
). Because illnesses in the deceased partner are often unanticipated, the patient typically has not given prior written or verbal consent for sperm retrieval. In these situations, physicians who are asked to perform sperm retrieval, sperm storage, and artificial insemination face an array of difficult ethical issues. These issues may extend to asking whether posthumous reproduction is ethically justifiable, and/or whether it is ethical to retrieve spermatozoa from patients who are dead or in a persistent vegetative state but have not given explicit prior consent. If retrieved spermatozoa are then frozen, it is unclear as to what should be the terms of any sperm storage agreement, including the time limits on storage and the person who might be inseminated. Additional dilemmas lie in the form of the legal requirements to have effective consent in place from the deceased, as well as the medico-legal implication for the clinician performing a medical procedure since, in theory, assault charges might be levelled at the clinician. All of these issues also apply to cases in which a husband or partner produces a child with the frozen ova of a dead wife or partner. The advent of ICSI and the potential for cryopreservation of ova may extend the options for posthumous reproduction to the use of the cryopreserved ovum, much as for using sperm for posthumous conception but with the added requirement of a surrogate uterus for gestation to achieve a pregnancy. The use of surrogacy can now in principle be extended to creating grandchildren, thereby adding considerable social and legal complexity to the status of the child (Fraser, 1999
). The issues for a child born from partially or fully orphaned embryos in PAR attracted much debate in 1983 when Mario and Elsa Rios died in a plane crash, leaving behind two frozen pre-embryos in an IVF clinic in Melbourne, Australia. There was a suggestion that the embryos should be made available to another infertile couple (Smith, 198586
).
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Gametes as property |
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In deciding whether sperm, eggs and embryos should be treated as property, one group proceeded to analyse the question in three parts (Steinbock and McClamrock, 1994):
Finally, these authors concluded that concerns for individual autonomy and privacy in matters of reproduction justify allowing the transfer of sperm by will.
Whilst sperm has not specifically been classified as being property in the sense that it cannot be passed on like a chattel, UK and European laws seem unclear on its status. Understandably, human body parts or products cannot be sold for profit. However, in transporting sperm across EU countries, sperm is classified as goods and unavoidably becomes property.
In the UK, although the embryo is often regarded as being special, it is not accorded special legal status, in view of the fact that neither is the fetus. In this sense it is somewhat unclear what status an embryo might be accorded for the purpose of transfer across European borders.
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Legal and social status of the child |
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In contrast, posthumous conception or reproduction is a matter of choice and raises more ethical, practical and legal questions for physicians, policy makers, society and those involved in the practice of reproductive medicine. Equally, there is a need to balance a range of interests and concerns, which extend from the fabric of society, religion, interests and rights of the deceased donor(s), the gestating woman, the prospective rearing parent(s) and, above all, to any children that may result.
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The donor |
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In our culture, most people do not expect that their gametes will be used for procreation after death. As this possibility is rarely contemplated, people generally do not make their views regarding this practice explicit. In the vast majority of cases, then, considerable uncertainty exists concerning the wishes of the deceased in this regard. The claim might be made that, as it is possible that using the deceaseds gametes for procreation would have been consistent with that persons wishes, a request to do so should be granted. However, it is both unfair and undesirable to place the onus upon individuals to state their opposition to posthumous conception.
The opportunity to store sperm or oocytes can be limited for the ordinary and apparently healthy person who previously had no cause for storing the gametes. A landmark UK case involved Mrs Blood [Regina v. Human Fertilisation and Embryology Authority (HFEA), exp. Blood, 1997], whose husband, when in a coma, had sperm retrieved surgically and frozen upon her request; the patient later died. It was deemed that effective consent, which must be in written form, was not in place before the taking and freezing of gametes. It was even felt that there may have been a case for raising assault charges against the clinician who undertook the retrieval procedure. The Appeals Court also recognized that informed consent was crucial and it agreed with the High Court decision in so far as treatment in the UK was concerned. It did, however, conclude that, in failing to exercise its discretion to facilitate treatment abroad, the HFEA had not been properly advised as to the importance of European Community law in relation to cross-border treatment, and had been over-concerned with the creation of an undesirable precedentsomething which was impossible given the ruling that the original storage was illegal in the absence of written consent. The case was therefore remitted to the HFEA who exercised their discretion, and the sperm was released to be used successfully in Belgium. Had the sperm been retrieved and not frozen but used immediately, then the provisions of the HFEAct 1990, s4(1)(b) would not have applied. In English law, a child born from posthumous insemination or to a lesbian or single woman using donated sperm does not have a legally recognizable father on the birth certificate. As a result of Mrs Bloods representation and potential resort to the Human Rights Act (HRAct, 1998) (Bahadur, 2001), it seems that a Parliamentary Bill which allows the naming of the father in PAR may follow. In the UK, the 1990 HFEAct does not prohibit posthumous storage and use of spermatozoa, but it does require the mans prior written consent for sperm storage. Thus, post-mortem retrieval, storage and insemination would be permitted with valid written consent.
In France, the widow of cancer patient Alain Parpalaix obtained a courts approval to be inseminated with his spermatozoa after his death, arguing that he had wanted his stored spermatozoa to be used in this way (Aziza-Shuster, 1994; Benshushan and Schenker, 1998
). After the Parpalaix case, the Centre dEtude et de Conservation du Sperme Humain (CECOS) adopted an explicit policy of not permitting post-mortem insemination, and this policy was upheld by the French courts (Aziza-Shuster, 1994
). In 1994, France passed a law forbidding posthumous insemination (Lansac, 1996
). Belgium and the USA currently permit post-mortem insemination without the mans prior written consent (Brahams, 1996
, 1997
). Germany, Sweden, Canada and the state of Victoria, Australia have legislation that prohibits PAR (Bahadur, 1996
; Webb, 1996
), while Western Australia has regulations that forbid the posthumous use of gametes (Webb, 1996
). With regard to pre-embryos, Israel allows their transfer to the wife within one year of a husbands death, even in the absence of his consent; however, if the wife dies the pre-embryos cannot be used (Benshushan and Schenker, 1998
).
Many international programmes for assisted reproduction have consent forms that stipulate the disposition of gametes and embryos, including their disposition after the death of one or both gamete donors or after a certain period of time. If the use of gamete or embryo after death is declined, this should be honoured. In the UK, this would also mean the destruction of an embryo irrespective of the surviving genetic contributors wishes. This is because effective consent is deemed not to be in place. Whether a time limit should be placed on how long after death such gametes or embryos might still be used is problematic. It is not clear how the interval between death and use would affect the process and the outcome, but the general presumption is that such use should occur within an interval of no more than a few years. In our clinic, amongst the 21 out of 40 widows (52.5%) requesting continued sperm storage, there has been little evidence of its subsequent use, which reflects just how strong the psychological bond had been with the deceased, and the complex mourning that ensues (Bahadur, 1996). After seven years, even those 11 widows who had expressed serious intent to use (or were preparing to use) frozen sperm appear not to have resorted to PAR. Their desire to continue to maintain the sperm without use seems also an important psychological marker in the grieving process. Since issue of the report in 1996, details of two widows have emerged who, once in a newly-found stable relationship, requested disposal of the deceaseds sperm sample.
A reluctance to perform PAR is widespread, and two-thirds of UK clinics share a culture that seems to be the legacy of the Warnock Committee which, in setting the recommendations of the HFEA, actively discouraged posthumous reproduction. This type of blanket ban by a clinic on PAR may be contrary to the HRAct 1998 (Bahadur, 2001), and may possibly lead to further legal complications for those clinics adopting such an entirely negative policy.
On balance, it is necessary to ask whether posthumous reproduction would promoteor interfere withimportant human aims. In the UK and also to some extent Europe, future ethical debates raise fears about increasing the choice and power that individual patients possess, as the scope for interpretation under the HRAct takes on additional dimensions (Bahadur, 2001). The HRAct declares that public bodies should not interfere with privacy or family life unless they can justify it in terms of protecting public health or morals, or protecting the rights of others. This means for instance that the HFEA cannot simply ban anything it considers ethically unacceptable. Under the HRAct, the HFEA would have to prove its right to infringe on individual choice and articulate quite precisely why it is interfering, in terms of public health or morals.
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The gestating woman |
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In the case of a husband wanting to use frozen embryos or ova for posthumous reproduction after his wife has died, a gestational carrier is required. The surrogate should be aware of the circumstances and informed that this would be a posthumous pregnancy. The woman would not be considered a traditional surrogate if she were planning to be a rearing parent as well; for example, if she married the man after his wife died. In other instances, all of the concerns that arise with the use of gestational carriers also would apply generally. In the UK, the gestating mother would be the legal mother and parental rights would need to be gained by the commissioning parent(s) or person(s). As there is no known case in this category it is difficult to describe just how complex the issues could be, although we can imagine their complexity. In some countries, embryos could be donated to infertile couples, and in these cases the recipient couple ought to know of the unusual circumstance before receiving the gift.
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The children |
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If pregnancy and birth occur within the context of marriage in which one partner has died, the effects on the child might not be very different to those which occur in the much more common case of posthumous birth, in terms of legitimacy and inheritance. In the usual case of posthumous reproduction, the genetic father or mother would be deceased at the time of conception or implantation, whereas in posthumous birth the conception takes place with both parents alive but with the father, or rarely the mother, having died before the time of birth. In either case, the child at birth would be subject to the burden of having lost one genetic parent. When reproduction takes place as a consequence of a loving relationship in which both partners were desirous of children, but a pregnancy is frustrated by the death of one partner, posthumous reproduction may well become acceptable both socially and culturally, at least in time. The psychological impact on the child should be minimal and probably within the range of experiences seen in some parallel studies on for example single parent families (Golombok, 1998; Pennings, 1999
).
Following posthumous conception, the legal and social status of a child born using frozen gametes after the death of the gamete provider raises complex issues, even if the insemination and pregnancy occurs with the wife of the dead man. Since the role of assisted reproduction has not been well factored into common law or social and ethical judgements, a child born from conception and pregnancy after a mans death may not always be attributed to him for purposes of inheritance and legitimacy. This tradition has been a formidable obstacle to changing attitudes in the face of the new assisted reproductive technologies.
In the UK, PAR has been thought out in perhaps more detail than most Western countries. The taking, freezing and use of sperm are based upon explicit written consent being in place prior to the mans death. However, in any subsequent use, the child does not have a legally recognizable father on the birth certificate, and so may not qualify automatically for inheritance rights. This position appears both obtuse and paradoxical: prior to posthumous insemination clinics must take account of the welfare of the child, and yet the interests of the ensuing child seem disregarded by law subsequent to insemination. This may disadvantage the child by, for example, requiring him or her repeatedly to explain to schools or public authorities why the father does not exist. These dilemmas may extend to emergency healthcare where history of the genetic parents may be needed. Furthermore, all these could compound the fears of the widow when signing any formand especially a legal documentwhich is unlikely to cater for a legally fatherless child. With the HRAct (1998) in mind, Mrs Blood and another widow have exerted legal pressure on the government, and it would appear that a bill in the UK may be passed to enable this subtle but significant shift to posthumous paternal recognition to occur, although it is expected to fall short of securing inheritance rights. Irrespective of the circumstances, it would appear that the development of Liam, Mrs Bloods toddler, who is surrounded by two sets of grandparents and supporters, is in line with that of an ordinary child.
Another interesting point is the fact that the woman (widow) will not have a husband at that time of PAR and therefore could not be regarded as a married woman for the purposes of procreation. It may follow from this argument that the deceased husband is therefore specifically excluded from describing the paternity of the child. Equally, however, a compassionate view seems the only credible way of creating a birth record for the child, which does not contradict itself, since common sense will dictate that the cryopreserved gametes do exist. In the United States, for example, if conception occurs after the mans death, the question of paternity is not so straightforward. Some states in the USA have adopted the Uniform Parentage Act, according to which the deceased man would be presumed to be the father of the child provided that the couple had been married and the birth had occurred within 300 days of the mans death (Gibbons, 1997). If birth occurs after 300 days in those states, or if birth occurs in states without statutes addressing posthumous conception, then current law provides no basis for presuming that the deceased is the legal father (Gibbons, 1997
).
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PAR and the need for consent |
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One can easily overlook the interest of the dead, as they might be construed as having no voice. Some may claim that we cannot speak sensibly of the dead as having interests which can be harmed by the conduct of surviving parties because, once a person dies, that individual no longer has any interests and therefore concepts of harm or benefit seem redundant. It is clear, though, that certain acts committed after a persons death can either harm or promote that individuals interests. For example, a posthumous event that destroys a deceased persons reputation harms his or her interests because it adversely affects the way that individual is remembered after death.
Specifically, what significance ought to be afforded the deceaseds interests when we have little or no evidence regarding his or her wishes for, or objections to, posthumous procreation? Posthumous conception affects the deceaseds interests, because it redefines the content and outlines of the deceaseds life. When it occurs without the persons consent, it deprives an individual of the opportunity to be the conclusive author of a highly significant chapter in his or her life. Indeed, this is one of the reasons why any attempted analogy between posthumous conception and organ donation fails. Controlling the fate of gametes is different from, and more significant than, controlling the fate of cadaveric organs, because procreation is central to an individuals identity in a way that organ donation is not. Therefore, as the consequences of posthumous conception profoundly affect core values held by the deceased while alive, respect for autonomy requires that this procedure should not be permitted unless the deceaseds consent is clear.
As a society, we recognize that most people find it important to attempt to control certain post-mortem events. Consequently, we have developed procedures that allow us to control certain matters after death, such as the transfer of property, the nomination of beneficiaries, or the transplantation of organs. Given that it is important to individuals that their wishes be respected after death, it is also important that they have the assurance that their bodies will not be used in a manner inconsistent with their expectations. When the living can only speculate about the deceaseds wishes, posthumous conception should only cautiously be permitted. Even if there is evidence that the deceased desired parenthood in life, it is a considerable leap to assume that he or she would have wished to become a parent posthumously.
If the deceased persons wishes are to be safeguarded adequately in posthumous reproduction, clear evidence of intent to reproduce after death should be required. The strong procreative interest of family members seeking posthumous conception may tempt them to portray the deceaseds values and desires in ways that are not necessarily compatible with the interests of the deceased. Given that posthumous procreation, unlike organ donation, entails significant and permanent implications for the deceaseds family, the potential for a serious conflict of interest justifies a far more limited decision-making role for the family. Obviously, difficulties could arise in estate distribution after PAR, although no cases appear documented.
Policymakers must identify and evaluate important interests, and codify them in a workable policy. In this sense, the UK HFEAct 1990 provides exemplary directions as to the need for a written and informed consent prior to any storage and use of gametes or embryos. Contentious areas however remain, such as the non-recognition of a genetic father or inheritance rights.
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What defines a parent? |
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So it was that Orange County Superior Court Judge Robert D.Monarch ruled in September that Jaycee had no legal parents, although she now lives with Luanne. The case is emblematic of the kinds of quandaries arising as novel baby-making techniques emerge. In the UK, the gestating mother is the legal mother, and if surrogacy is involved then parental rights have to be applied for by the providers of the genetic material.
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What if a donor dies? |
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The American Society for Reproductive Medicine recommends caution when posthumous reproduction is being considered, although the organization allows that the practice is not inherently wrong when the deceased has left express permission. Little is known however about the psychological effects on a child who eventually learns that one or both parents were dead long before that childs own gestation began. Some experts have begun to complain that in the modern conception industry, the rights and privileges of potential parentseven dead onesare gaining precedence over the welfare of the children. Even where written consent was present, a High Court appeal has been launched by the UK widow Mrs U casting doubt on the effectiveness of consent. In this case, a clinic nurse allegedly asked or influenced the husband to alter the consent form to request discarding of samples in the event of death (Centre for Reproduction v. Mrs U, 2002), to bring the consent in line with the clinics position. The Court of Appeals (UK) has sided with the clinic and concluded that the withdrawal of consent to posthumous use of sperm was not because of undue influence (OHanlon, 2002
). Another report (Soules, 1999
) records the experience of receiving a late-night telephone call from a 21-year-old woman whose 19-year-old sister was brain dead 12 h after a motor vehicle accident. Although the family was willing to donate her organs, it was withholding final consent until the medical staff at another institution could arrange to have her ovaries harvested and her eggs preserved. In the UK, a couple aged 60 years wished to have grandchildren by using their late sons frozen sperm and hiring a surrogate. Although written consent was there for use, it did not specifically name the woman who was to be inseminated, since the son was single at that time (Fraser, 1999
), thereby frustrating attempts to pursue PAR. It is also known for an unrelated person to request a sample, namely a nurse and a social worker, who each said they were acting on behalf of an unidentified third party (Cohen, 1998
).
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How is quality maintained? |
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Conclusions |
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Notes |
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References |
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