Issues in Posthumous Reproduction

1. Issues in Posthumous Reproduction Katharine Van TasselAssociate Professor of LawWestern New England College School of Law

2. 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

4. Los Angeles: A Doctor Gives These Women and Others Hope

5. 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.

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

7. 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

8. 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

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

10. 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.

11. 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

12. 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/can’t donate organs/tissues • State ownership

14. 1960: Cadaveric Organ Donation Possible

15. 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.

16. 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"

17. 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 individual’s 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.

19. 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.

20. 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

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

23. 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?

24. 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

25. 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

26. 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

28. 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

29. 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

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

31. 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

32. 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

33. 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