We stumbled upon a case which really intrigues us, in The Independent. A woman who was about to get married with her long time boyfriend but he got into a vegetative state, wants to collect her fiance’s sperm in order to get pregnant from his children.
The woman in question claims that her fiance would have consented to such request, given that she and her fiance have discussed the issue for starting a family intensively before his illness. Since the hospital refuses its cooperation, the case is brought to court by the woman.
The important question at stake here, has this woman the right to collect the sperm from her fiance? According to classical liberalism invasive medical procedures require the informed consent of the person involved, though this requirement could be waived in a clear case of a medical emergency in which the person is unable to give consent. But then only to the extent that the life of this person is saved, and the recovery of health is enabled.
A person who is unable to give informed consent, should not be subject to a treatment which is not justified by such medical necessity. Unless this person has given consent prior to the loss of his ability to consent. The principle of informed consent only requires that a person has been able to consider his consent on the base of adequate information, and could be given either orally or in writing.
However, in case of an orally given consent, it would be difficult to prove that consent has indeed be given, especially if the person is in a vegetative state. Even if there would be witnesses of the consent giving, the devils advocate could argue that the witnesses have been bribe by the beneficiary of the consent. Of course, one could also argue that a written consent is forged and indeed many court cases deal with such forged documents. But at least in the case of a written consent, the authorities could scrutinize the document.
Though we have talked about giving informed consent to this particular action, it’s also possible to authorize someone else to make decisions if one would be unable to do so. Usually such authorization is given to one’s spouse or family. The question is then, whether such authorization would include the right to collect one’s sperm. One could argue that if one gives his fiance general authority to take decisions upon his behalf when unable to so by himself, this would include the authority to collect a sperm sample. Others could argue that ordering such action would be an improper use of this authority, given the intent for which this is given.
It’s a small step from collecting sperm from someone who is in vegetative state, to collecting sperm from a recently deceased body. It’s generally accepted that after death, the next of kin has to decide whether the organs of deceased are up for transplantation, unless the dead person has made such decision before death. Are those next of kin also authorized to collect sperm? The question here is what is the difference between harvesting one’s organs and harvesting one’s sperm after death?
Though organ transplantation is nowadays accepted in most parts of the world, posthumous reproduction causes an uneasiness by many people. But with the possibility to cryopreserve sperm (but nowadays also for egg cells) for a long period of time, posthumous reproduction is becoming a part of real life. Hence it’s necessary to discuss its desirability, and possible regulation.
And not only cases as the one we cited in the begin, are of importance, but also in case of people who voluntarily donate sperm or egg cells by life. One could donate sperm to sperm bank at one day, and die the next day. Is it okay to use sperm of donor, who has died since the donation? And what about a case in which a couple has conserved sperm/egg cells outside the body, and one of the partners dies suddenly; does the surviving partner has the right to made use hereof?
An interesting question in regard of posthumous reproduction, is of course inheritance. Should children who have been born long time after their parent’s death be considered as legitimate heirs? Or should we put a limit on the period in which a posthumously conceived child can be considered to be an heir? If you believe the answer on this last question is no, think about this hypothetical case. Suppose Alice dies without heirs, and hence her estates goes to the state. But after a hundred years Alice’s son Bob is born, because Alice had donated a few egg cells when she was alive. Should Bob be able claim his mother’s estate, which might have been dissolved over time?
Though this question might not be easy to answer, we definitely need to think about them.