Issues in Posthumous Reproduction

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Issues in Posthumous Reproduction

• Katharine Van Tassel Associate Professor of
  LawWestern New England College School of Law

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• Cases in the News
• Florida A violent car accident newlywed widow
• New York A vacationing couple
• Chicago A new kind of condolence
• London Meningitis
• Atlanta Drive-by shooting

3

• All Desired Baby to Embody Love/Spirit

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• Los Angeles
• A Doctor Gives These Women and Others Hope

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• Increase in Both Requests and Procedures for
  Posthumous Sperm Procurement.
• 1980 first published report
• 1980 - 1995 82 requests/ 40 ART facilities.
• 1995 - 2002 131 requests/ 42 (32) honored
• 60 increase in requests .
• 32 states/19 states honored.

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• Not just ART facilities
• Last Year, A Urologist/Hospital /Widow/ Car
  Crash.
• How should health care practitioners evaluate
  requests?

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• The Law Relating to Dead Bodies and Organ
  Donation
• Reproductive Tissue is special type of "property"
  
• Potential conflicts between deceased/ surviving
  family re deceased's bodily integrity
• Decision-making between individuals/
  families/state re disposition of corpses/organ
  donation
• Weigh competing interests in posthumous
  reproduction

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• Decision-Making Authority with Respect to Corpses
• Ecclesiastical (church) courts sole jurisdiction
• Basis authority in matters of life and death
• "the spirit departed to the realms of the
  supernatural the body was held by the divine
  agent to await resurrection"
• Plus own burial grounds probate jurisdiction

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• Common-law courts/ powerless
• "a dead body by law belongs to no one"
• v.
• Until 1804, creditors arrest corpse for debt owed
  by deceased

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• Far-reaching implications
• Courts refuse to recognize wishes re corpse.
• No law suit available/interference with corpse.
• No ability to recover corpse from interloper.
• Thriving trade of "body snatching" grave robbing
  picture
• Late eighteenth century/criminal sanctions for
  grave robbing but no civil law suit for
  mutilation or dissection of corpse, nor ability
  to get body back.

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• U.S. courts follow English fiction
• "no property" rule, but recognize
• Family has interest in burying without unlawful
  interference
• ? "quasi property rights"
• A sacred trust for the benefit of all who may
  from family or friendship have an interest in it.
• unauthorized mutilation of corpse (unauthorized
  autopsy)
• right to control disposal of corpse

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• Substantial weight to deceased's known wishes
• Courts enforce if reasonable
• BUT will consider wishes of family members
  public
• Individual's wishes not conclusive,
• Family's decision-making role is limited,
  Intended to protect the family's sensibilities
  and ensure a proper burial for the deceased.

13

• Decision-Making Authority with Respect to
  Cadaveric Organs
• No property right in dead body/cant donate
  organs/tissues
• State ownership

14

• 1960 Cadaveric Organ Donation Possible

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• But family entitled to body/same condition as
  time of death
• Reluctance by physicians remove organs
• Resulting Uncertainty Shortage of Acquired
  Organs
• 1968 The National Conference of Commissioners on
  Uniform State Laws (NCCUSL) endorsed the Uniform
  Anatomical Gift Act (UAGA)
• 1973 all fifty states and the District of
  Columbia had adopted a version of the UAGA.

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• UAGA's definition of human body "parts" that can
  be donated include sperm and eggs
• Q apply to posthumous procreation since
  purposes are only "transplantation, therapy,
  medical or dental education, research, or
  advancement of medical or dental science"

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• Autonomy interest trumps
• Decedent's expressed wishes regarding organ
  donation prevail over the wishes of any other
  party.
• An anatomical gift "is irrevocable and does not
  require the consent or concurrence of any person
  after the donor's death."

18

• If individuals wishes unknown, the UAGA vests
  primary decision-making authority in family
• The family's role reflected in "Routine Inquiry
  and Required Request" provision in the 1987
  amendments to the UAGA.

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• Posthumous Procreation Distinguished
• Argued gamete donation differs from organ
  donation
• life-creating v.
• life-sustaining or life-enhancing
• Organs scarce resource shortage of organs
  entails the hastening of death for existing
  individuals.
• Gamete donation does not save the life of an
  existing person
• Creates the potential for a new person gametes
  can be donated by living persons.

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• Interests of the deceased individual/ family Are
  Different
• Should family assume a more central role in
  posthumous reproduction than in posthumous organ
  donation?
• Long term Emotional/ Psychological/ Financial
  Implications
• v.
• Greater Potential for a Conflict of Interest

21

• Procreation central to identity v. organ
  donation
• Ability to control the fate of his or her gametes
  
• v.
• Ability to control the fate of his or her
  cadaveric organs

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• Autonomy is a guiding principle in bioethics
• Does autonomy play as pivotal a role in this
  context?

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• Decedent desires to procreate v.
• Surviving partner does not
• Easy Case
• Family member wishes to procreate
• Deceased did not/ or unknown wishes
• Key Person's Interest in Avoiding Procreation
  After Death Less Important Than This Interest
  During Life?

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• The Concept of Posthumous Harm
• Do the dead as having "interests" which can be
  "harmed" by the conduct of surviving parties?
• Surviving parties have a personal interest in
  respecting the dead
• "Self-regarding and egoistic" /each of us would
  want to be similarly treated when we, in turn,
  die
• "Keeping faith with the dead" /breach of a duty
  by the living that would trouble a "morally
  sensitive" person.
• When refer to decedents interests this context

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• Deceased' expressly objects v. family member
  requests
• Decedent trump?
• Harms the living person's interest in procreating
  
• Living should take priority because they will
  enjoy the benefits and endure the burdens of
  their decision

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• Posthumous reproduction different
  interests/reproduction
• No unwanted gestation or child rearing
• No anxiety about the welfare of their offspring
• No fear that a person will knock on their door
  claiming to be their child.
• Just certainty no children after they die

27

• Contrary
• Autonomy
• Law in organ donation
• Honoring commitments to the dead
• Way Individual's life is remembered/regarded by
  the decedent's community/family/resultant child
• Alter relationship with existing offspring

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• When the Deceased's Intent Is Ambiguous
• Four basic positions
• a. First two contrary presumptions
• b. Third surrogate decision maker
• c. Fourth Cruzan/ clear and convincing evidence

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• Position One
• Presumption Corpse to be treated as customary to
  religious and cultural background.
• The "quasi property" rights vested in family
  "sacred trust," provide a decent burial
• UAGA organ donation/ compelling societal
  interest
• No corresponding compelling state interest in
  posthumous procreation

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• Position Two
• Presumption that the decedent had no objections
  to post mortem reproduction
• Position One is unfair
• Excludes those individuals who have no objection

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• Position Three
• Both first two unfair
• Look for evidence of intent.
• Use "substituted judgment" /based on the
  patient's own subjective values and wishes
• Surrogate decision-maker must look at any and all
  available evidence, such as prior written or oral
  statements, evidence relating to the patient's
  philosophical and religious beliefs, and any
  prior consistent pattern of conduct by the
  patient regarding medical care

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• Position Four
• Cruzan v. Harmon
• Family request/ withdrawal of treatment/ brain
  damage
• A state may require continued treatment of an
  incompetent patient in the absence of "clear and
  convincing" evidence of the patient's prior,
  competent refusal of treatment

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• Final Question
• Which of these four positions is the best
  position to use in drafting a protocol for
  analyzing whether the post mortem extraction of
  sperm is appropriate?
• Case Study