Do the Deceased Have Rights to Autonomy? An Ethical Examination of Posthumous Conception

According to a commentary published in Reproductive Biomedicine and Society Online,¹ a standard of presumed consent should be adopted in posthumous sperm conception. This commentary was published in response to previously published research in the same journal.²

Kelton Tremellen, MB, PhD, of the Department of Obstetrics, Gynecology, and Reproductive Medicine at Flinders University, Bedford Park, South, Australia, and colleagues considered the major ethical issues surrounding posthumous sperm conception in relation to the rights of the deceased vs the welfare of the living widow and potential child.

The current legal position on posthumous sperm conception in most of the world is that explicit written consent from a man must be obtained prior to death for his sperm to be collected and used posthumously. This argument is based on an individual’s right to autonomy. The comment authors counter this with 2 arguments: first, that deceased individuals have no meaningful interests or rights, and second, that most men of reproductive age die suddenly and unexpectedly, rendering prior consent unlikely. Dr Tremellen and colleagues point out that when men of reproductive age are asked to consider the idea of posthumous conception, current evidence suggests that most would support their partner’s use of their sperm posthumously. Thus, the current default position of requiring consent prevents the majority of women from using their partner’s sperm and deprives the majority of males of what may be their desire.

The authors suggest turning the present default position on its head and assuming that in the absence of an explicit opt out from the man in question, the assumption should be that consent is granted. They add, however, that posthumous sperm collection should only be used in cases where there is a well-established relationship with a partner before death.

The authors conclude by expressing the hope that the focus of the posthumous conception debate moves toward the rights and welfare of the living, not the dead.

References

1. Tremellen K, Savulescu J. Posthumous conception by presumed consent. A pragmatic position for a rare but ethically challenging dilemma. Reprod Biomed Soc Online. 2016;3:26-29.
2. Kroon F. Presuming consent in the ethics of posthumous sperm procurement and conception. Reprod Biomed Soc Online. 2015;1(2):123-130.
3. ESHRE Task Force on Ethics and Law. Taskforce 7: ethical considerations for the cryopreservation of gametes and reproductive tissues for self use. Human Reprod. 2004;19(2):460-462.
4. Ethics Committee of the American Society for Reproductive Medicine. Posthumous collection and use of reproductive tissue: a committee opinion. Fertil Steril. 2013;99(7):1842-1845.