Paul Baerwald School of Social Work and Social Welfare, The Hebrew University of Jerusalem, Mount Scopus, Jerusalem 91905, Israel
Email: mslanda{at}pluto.mscc.huji.ac.il
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Abstract |
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Key words: ethics/Israel/posthumous sperm retrieval
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Introduction |
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The guidelines outline a two-step procedure. The first step is sperm retrieval from the dying or deceased man at the request of his partner, whether she is his wife or not. For this, it is enough that the wife or other partner make the request for the sperm to be retrieved. Requests from the man's parents or other parties are not entertained. The second step is authorization for the use of the sperm. The document makes it clear that sperm retrieval does not necessarily entail authorization for its use. Permission to use the sperm is to be determined on a case by case basis in a court of law, in keeping with the man's dignity and presumed wishes (Ministry of Justice Guidelines of the Attorney General of the Government, guideline number 1.2202, 27 October 2003).
The following critique challenges the basic, though unstated, premise of the Attorney General's guidelines that adults' personal autonomy over-rides the rights and well-being of the child. It goes on to show that, despite the centrality of autonomy in the guidelines, they actually infringe on the autonomy of the deceased, and pose challenges to that of the surviving partner. It questions the propriety and very possibility of ascertaining the presumed wishes of the deceased for a posthumous child. Finally, it argues against the document's presentation of posthumous sperm retrieval as a medical procedure and contends that, on the contrary, medicine and science are suborned to the exploitation of the dead.
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Adults' autonomy versus the rights and well-being of the child |
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But what about the rights and well-being of the planned child? These are not even mentioned until page 12 of the 13-page Hebrew document. In an earlier paper on planned orphanhood (Landau, 1999), I discussed the application of the principle of autonomy in detail and argued against the reductive views that focus the discussion primarily on the deceased person's will. Based on arguments from Cate (1994)
, Dworkin (1994)
, Rachels (1995)
, Callahan (1996)
and Murray (1996)
, it has been shown that procreation entails more than the parents' personal interests. If the child is important in and of itself, then one must consider the pain and suffering of an orphan who is conceived without the possibility of ever knowing his/her father. An adult's desire to give birth to an orphan should not have priority over the child's basic right to two living parents, at least at the time of its conception.
The Attorney General's guidelines do attempt to address some of the problems that the planned orphan will encounter. In order to bestow on the child a minimum legal paternity, they stipulate that in authorizing the posthumous use of sperm, the court must instruct the Ministry of the Interior to register the deceased person as his or her father. This, however, does very little to resolve two core legal issues involved, at least in Israel. One is the highly problematic status of children born of a father whose identity is not entirely certain. Because posthumous insemination can take place anywhere from months to years after the man's death, there is always, for the highly religious minded, the possibility of a creeping doubt as to who the father really is. As long as that is in question, the offspring's possibilities of a Jewish marriage are highly restricted so as to avoid any possibility of incest. The other problem is that the offspring remains without the legal right to inherit, since the inheritance would already have been dispersed. Yet, even though the guidelines themselves note these knotty, and perhaps unsolvable, problems, they do not allow them to interfere with the adults' autonomy.
We may also question whether the use of medical assistance to bring such an orphan into the world shows proper regard for its well-being, needs and dignity (Landau, 1999). In defence of such assistance, it has been argued that since existence is always preferable to non-existence, the question of the child's well-being is irrelevant (Strong et al., 2000
). This justification, however, is not without problems. In view of the role physicians are willing to play in both abortion and end of life decisions, the preference of existence over non-existence cannot be taken as axiomatic. Physicians are willing to co-operate in ending the life of an embryo if there are medical indications that there may be physical impairment. Throughout history, loss of a parent in childhood has been perceived as a major traumatic event in one's life. Indeed, the urologist Ohl (2001) maintains that in assisting in the creation of new life through the retrieval of sperm, it is the treating physician's duty to ascertain that the new individual being createddue, in good measure, to the physician's interventionhas a good chance of leading a happy and healthy life.
Paragraph 3 of the UN Convention on the Rights of the Child (UN General Assembly, 1989) explicitly states that, in all issues involving children, the rights of the child have priority over other interests. Despite this, the current document clearly prefers the rights of the adults.
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The autonomy and welfare of the man and his partner |
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Ironically, the primacy of place given to the deceased man's wishes in the guidelines does not prevent the use of his sperm in the absence of his explicit consent. The guidelines give considerable attention to the subject of personal wishes. When the deceased man's wishes are unknown, the guidelines state, there must be very good reason for society to impede any wish his living partner may have to bear his offspring. The stated assumption is that couples who live together, whether in marriage or a common law union, naturally and almost invariably intend to have children at some time in the future. Thus, in the absence of an explicit objection, the assumption is that the deceased person would have wanted to have children with his partner, even after his death. This assumption is questionable.
For one thing, we cannot be sure that a man who lives with a woman necessarily wants to have children with her. While the guidelines do not require marriage, they do not specify who would qualify as a partner. This means that, in principle, women in co-habiting relationships may also be considered as partners. This ignores the growing trend of young people in Israel, as elsewhere, to postpone marriage and to enter relationships, including co-habitation, without long-term commitments or any desire for children by the partner.
Moreover, there are indications that men themselves object to the assumption that living with a woman means that they would want to become posthumous fathers. In evidence, we may note the November 17, 2003 petition to the Israel Supreme Court jointly filed by the Civil Coalition and by a man who defined himself as belonging to the male sector of the country to revoke the Attorney General's decision where the petitioners claimed that the guidelines inflict harm on men by transforming them into sperm providers even after their death. They also raise the issue of fatherless orphans, who will become more common with the implementation of the guidelines (Yoaz, 2003). Nonetheless, in the view of the guidelines, lack of explicit consent by the man prior to his death does not necessarily constitute a bar to permitting the posthumous retrieval and use of his sperm.
This waiver of the need for explicit consent contradicts the accepted view that informed consent is an essential element of freedom of choice. Indeed, some physicians would be uncomfortable with such a waiver. The urologists Zini and Mak (2001) argue that posthumous sperm retrieval should be performed only when the deceased had made a specific request in writing or on videotape when he was competent and of majority age. Ohl (2001) holds that it would be best if the wishes of the person whose sperm is to be retrieved and used posthumously were recorded in a legal document.
The option of posthumous conception may also compromise the autonomy of the surviving partner. This may seem strange, since she is the only one who can set the process in motion. However, by their very existence, the Attorney General's guidelines convey the message that an Israeli woman should bear her partner's children, whether he is alive or dead. The very availability of assisted conception from the sperm of a deceased partner may create for some women a moral and psychological obligation to make use of it. This imagined obligation would infringe on the woman's liberty and autonomy (Aziza-Shuster, 1994).
Moreover, whether wife or girlfriend, the surviving partner may well be subject to intense pressure from her husband's parents to utilize his sperm. While a man's widow or girlfriend may have alternatives for achieving motherhood, the only way for the man's bereft parents to perpetuate their son's life, physically, rather than symbolically, is through his sperm. Although the guidelines explicitly deny the parents' legal status in the request for sperm use, they cannot prevent them from pressuring their son's widow or girlfriend for a grandchild. Once the sperm have been retrieved and cryopreserved, there are undoubtedly women who would be susceptible to such pressure.
Nor does the option of posthumous procreation protect the welfare of the woman much better than it does that of the child to be born of the procedure. The entire discussion in the guidelines assumes that authorization for the retrieval and later use of a man's sperm would benefit his widow or girlfriend. It is not at all clear, however, that the option really contributes to the well-being of a recently bereaved woman. It exposes her to internal and external pressures to procreate at a time when she is particularly vulnerable. If she decides to go ahead with the procedure, she will undergo physically and psychologically stressful IVF on her own. If the IVF is successful, she is also likely to raise her deceased partner's child on her own, instead of coping with her loss, finding new meaning in her life, and, in some cases, finding a new partner and creating a family with him. Bahadur (2002) observes that a child can be an obstacle to the recovery of the partner from her loss, especially with a new spouse.
The guidelines seem to be oblivious to these issues. They disregard the likelihood that young women would be better off continuing their lives with a new attachment to a living partner and that older women who had wanted children with their partners probably had plenty of time to become parents when their partners were alive. They make no mention of the difficulties of IVF nor of the fact that it is currently under scrutiny for its possibly adverse long-term effects (Helmerhost et al., 2004).
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Presumed wishes |
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The presumed wishes approach is based on the assumption that, while few men think about the posthumous use of their sperm, most desire continuity and would be interested in having their sperm used even after their death, especially if their partner so wished. As noted above, this assumption is open to question.
Beyond this, assessing the will of someone who is dead or incompetent to make a decision about a future situation is highly anomalous. If it is indeed the deceased's will that counts, then he could have taken specific measures towards expressing his wishes while alive. If he did not, then he may have thought differently at different times and with changing circumstances. He may, for example, have had some vague ideas about becoming a parent some time in the future while he was young and healthy. But can we extrapolate from this that he would still have wanted to have children were he ill or older or that he would have wanted them posthumously? Moreover, assuming for the moment that we can somehow answer this question in the affirmative, can we know whether his presumed wishes reflect a desire for his partner to perpetuate his memory and remain tied to him even after his death or his consent that she raise his child under any future circumstances, whatever they may be.
An equally daunting problem is that the deceased man's wishes are to be ascertained on the basis of information obtained primarily from his bereaved partner and parents. These are interested parties, and there is little, if any, way of determining the accuracy of their perceptions or veracity of their statements. If the parents and partner both want posthumous parenthood, they can say that the man did, and there is no way to prove that he did not. If the parents oppose the sperm use, they or others may claim that prior to his death he had told them of having second thoughts about the relationship with his partner. These are not sources of information that enable the formation of an objective assessment of the deceased's wishes.
Ethicists have dealt indirectly with the issue of ascertaining a person's wishes on the basis of testimony by family members in connection with the question of family members wishing to take organs for transplants from living but comatose relatives who never gave consent (Associated Press, 2004). They noted that even the closest family members may have personal and/or conflicting interests, and agreed that allowing family members to decide to take organs from a living but incapacitated relative should be discouraged, and permitted only for patients who are in a persistent vegetative state. They also averred that immediate family members should not receive the organs. Although organ donation is not like sperm retrieval (not that posthumous sperm retrieval cannot be thought of as being donated), the idea that organs should not be taken from someone's body without his or her consent would seem also to apply to the retrieval of sperm.
Imposing the task of ascertaining the deceased's wishes on social workers is also extremely problematic. The very idea of gathering information about a person's wishes from sources other than the person himself may be regarded as both unprofessional and unethical. While it was acceptable in the distant past for social workers to gather information about a client or case from various sources, current codes of social work ethics both in Israel and abroad emphasize autonomy, privacy and confidentiality.
Furthermore, since the person whose wishes are to be ascertained is dead, it is unclear who the social worker's client is and to whom the worker owes allegiance. The task of gathering information about a dead person for an unidentified client from interested parties is more the work of a detective than that of a professional social worker. The Attorney General's document explicitly indicates that the guidelines are the product of discussions among experts in medicine, law and philosophy. Had some social workers been included in the panels, they may have noted the practical and ethical quandaries that the guidelines create for them.
The guidelines also assign to the court-appointed social worker the task of determining whether the partner requesting the sperm use is expressing her genuine, free and true wish, and to rule out undue influence or pressure, presumably by the man's parents. However, it would be very difficult for a social worker to ascertain whether the woman's stated desire for a child by her deceased partner was genuine and not the product of pressure, especially where she did not know the woman beforehand.
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Suborning medicine and science for the exploitation of the dead |
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The idea that posthumous sperm retrieval is a harmless medical procedure is open to question. UK law forbids carrying out any medical procedure on an incompetent person unless it can be justified as preventing deterioration or otherwise deemed in the patient's best interests (Simpson, 2001). The dying and dead, in my view, deserve similar consideration. It is clear that sperm retrieval from a dying or dead man will not prevent deterioration in his health, and it can be seriously questioned whether it is in his interest. What interests, after all, do the dead have?
For legal purposes, the guidelines distinguish between sperm retrieval from a dying man and a dead man. When the request is to retrieve sperm from a dying or unconscious man, who is unable to express his wishes, the guidelines stipulate that the sperm are to be retrieved in accord with the Israel Patient's Rights Law (1996), paragraph 15, and to be regarded as a medical treatment, defined as the first phase of fertility treatment. According to the Patient's Rights Law, where it is not possible to obtain the patient's consent or the consent of his/her legal representative, medical treatment may be given without consent, unless it is known that the patient previously had objected to that specific treatment. The fact that the guidelines do not allow posthumous sperm removal where the man had explicitly objected to it is consistent with the law. However, since the purpose of the sperm retrieval is fertility treatment for the woman, it is hard to see how the law properly applies to the deceased man. The guidelines detail the obligations of hospital fertilization units to female partners regarding the procedures to be applied in the utilization of the retrieved sperm. These include informing her of the nature and ramifications of the fertility treatments, rates of success and failure, and the emotional and mental difficulties entailed in the procedures. The definition of sperm retrieval under these circumstances as a medical treatment for the dying patient can only be viewed as cynical.
When the sperm is to be retrieved posthumously, the guidelines distinguish between situations where the retrieval does or does not require an invasive surgical procedure. Where no surgical procedure is required, the guidelines apply the rules for sperm retrieval from dying persons. It is enough that the wife or partner request it and that the man had left no evidence of opposition. By implication, then, the guidelines also define non-surgical posthumous sperm retrieval as a medical treatment. The idea of corpses receiving medical treatment is certainly novel and very incongruous. When surgical intervention is required, the guidelines apply the Anatomy and Pathology Law (1953). This law requires both the agreement of the partner and the non-objection of any other family member for post-mortem procedures to be implemented. In other words, this law allows posthumous surgery without the deceased's prior consent.
Be that as it may, these distinctionsbetween sperm retrieval from the dying and dead, and between surgical and non-surgical retrievalseem besides the point. They are legal distinctions, which miss the essence of the matter. Human gametes are not someone's personal property that can be given as a gift or legacy (Shalev, 2002).
Indeed, the authorization of posthumous conception turns sperm into a commodity, a thing. This is suggested by the case of Diane Blood, an Englishwoman who won her case to use her husband's sperm after his death in a European Union court on the grounds that not permitting her to do so would deny the free movement of goods and services. According to Simpson (2001), who analysed the case, what helped was the fact that sperm can be stored and transported, bought and sold, imported and exported, and subject to the laws of supply and demand.
In addition, the retrieval and use of sperm from deceased men for the purpose of procreation blurs the boundary between life and death. Until very recently in human history, death has been an end, a final retreat from life. Organ transplants from the dead started another era, in which organs of dead people could prolong the lives of sick people who would otherwise die. Posthumous retrieval of sperm and its use is entirely different. It uses medicine for non-medical purposes. It exploits the dead not to prolong an existing life but to create a new onean orphan with more than the usual share of problems awaiting him or her.
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Closing remarks |
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Nor do we know where the authorization of posthumous conception may lead. Although the guidelines explicitly indicate that the use of the sperm is to be determined on a case by case basis in a court of law and that authorization of sperm retrieval does not constitute authorization for the use of the retrieved sperm, practice in Israel shows that once a procreative procedure is allowed, its use will follow. Witness the public funding in Israel of unlimited fertility treatments, up to the birth of two living children, to all women up to 51 years old.
In addition, the use of multiple medical treatments in the service of procreation in Israel seems to be unlimited. To take only one example, not long ago the legal advisor of the Israeli Ministry of Health approved a request for posthumous sperm use that involved several complex medical procedures. The request was made by a woman whose husband had died some time after his sperm was obtained, with his consent, when he was ill with cancer, with the help of ICSI. The request was granted even though his consent form did not mention use of his thawed sperm after his death, and even though the woman required an oocyte donation to use with the sperm. It may be mentioned that, as a result of the fertility treatment, she gave birth to twins (Raziel et al., 2003). We may well ask how many medical inputs are justified so as to bring a planned orphan into the world.
While the Attorney General's guidelines refer only to posthumous sperm retrieval, one cannot rule out that in the near future posthumous retrieval of oocytes will be requested by male partners of deceased women. Considering the legitimacy of surrogate parenthood in Israel, this seems a logical next step.
There is no legislation in Israel, with the exception of the Surrogacy Law (1996), covering assisted conception, to say nothing of posthumous conception. In addition, the regulations governing assisted conception are made by the Ministry of Health without the participation of the wider public in an informed debate. Moreover, the long-term effects of the inevitable changes in the structure of families and the quality of relationships created by assisted conception are not widely discussed and have not yet become the subject of research in the social sciences.
All in all, the Attorney General's guidelines are incongruent with the recently published report of the President's Council on Bioethics (2004). This report maintains that biotechnologies that touch on human reproduction should take into consideration the health and well-being of all those directly affected by the technologies. This means, according to the Report, not only the individuals or couples seeking their use, but also and especially the children who may be born with their aid. The Report also points to the need to protect human dignity, including the dignity of the human body and its parts, the dignity of important human relationships and the humanity of human procreation. In view of the above analysis, I strongly recommend that the Attorney General's guidelines on posthumous sperm retrieval and its use in Israel be re-examined and re-considered.
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References |
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Associated Press (2004) February 10, 2004. http://msnbcl.msn.com/id/4232585.
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Raziel A, Friedler S, Schachter M, Strassburger D, Orna B and Ron-El R (2003) Birth of healthy twins resulting from donated oocytes and posthumous use of frozen-thawed spermatozoa obtained prior to chemotherapy. J Assist Reprod Genet 20, 382384.[CrossRef][Medline]
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Yoaz Y (2003) Petition: to revoke Rubinstein's guidelines concerning sperm retrieval from dead men. Haaretz 18 November 2003.
Zini A and Mak V (2001) Postmortem sperm retrieval is not a urologist's duty. Contemp Urol 13, 36.
Submitted on April 13, 2004; accepted on May 18, 2004.
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