Posthumous Conception and Prior Consent

Posthumous Conception and Prior Consent

Samantha Jefferies and her husband, Clive, had been planning to have kids. They visited an IVF clinic, prepared two cycles, picked out their kids’ names, and moved to the district with the best schools for their future children. They worked out that Samantha would return to work post giving birth, while Clive would be a stay-at-home dad. These plans never came to fruition when Clive suddenly passed away on April 19, 2014, suffering a brain hemorrhage [1].

Approximately one year later, the IVF clinic notified Samantha that Clive’s consent to reproduce would expire and their embryos would perish if she did not become impregnated within five months. What followed was a flood of legal action Samantha needed to take in order to gain the right to have her husband’s children.

The debate concerning posthumous conception largely concerns the right to autonomy of the deceased. Professional communities such as the American Society for Reproductive Medicine believe that posthumous conception may only ensue if the deceased has left written consent. However, most deaths of “reproductive-age men” occur out of the blue [2]. As a result, the need to obtain written consent may only complicate matters further for women who were in the process of planning a life with children before the man’s death. As a way to manage this controversy, one publication argues that “posthumous conception should be facilitated by moving to a standard of presumed consent, not hindered by arguments such as potential infringement and the rights of the dead,”  and would allow for men to “opt out” by providing their disconsent for posthumous conception [2]. As a result, posthumous conception would normally be permitted when sought by a widow, so long as the man has not documented any wishes against the procedure [3].

An argument posed in favor of the presumed consent model includes the fact that after death, a man’s organs and gametes are of no use to him, but could become “life-saving or life-creating to other” [2]. However, is it reasonable for this argument to equate life-saving to life-creating? Donating one’s organs to save a life is not the same as fathering a child posthumously. While organs remain just organs once implanted into another’s body, gametes evolve into a human being.  

Studies have shown that by switching to a presumed consent model, the wishes of the deceased to have children will occur three times more often compared to the present, where explicit consent is required. Moreover, the calculated chance of carrying out posthumous conception against the deceased’s wishes would occur approximately 2.6% of the time, compared to neglecting the deceased’s wishes to have children, which is approximately 70% of the time under the explicit consent model [2].

The idea of a presumed consent model adds vigorous discussion to the ethical debates revolving around posthumous conception. However, is it ethical to implement the presumed consent model knowing that the majority will have their wishes towards posthumous conception honored at the expense of the minority’s wishes to not father children posthumously?  

References:

  1. Jenny Kleeman, “‘I want my late husband’s children’: the fight for posthumous conception,” The Guardian, March 18, 2017.

  2. Kelton Tremellen & Julian Savulescu, “Posthumous conception by presumed consent. A pragmatic position for a rare but ethically challenging dilemma,” Reproductive Biomedicine & Society Online, December 13, 2016.

  3. Kelton Tremellen & Julian Savulescu, “A discussion supporting presumed consent for posthumous sperm procurement and conception,” Reproductive Biomedicine Online, October 2, 2014.


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