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A discussion supporting presumed consent for posthumous sperm procurement and conception

Published:October 09, 2014DOI:https://doi.org/10.1016/j.rbmo.2014.10.001

      Abstract

      Conception of a child using cryopreserved sperm from a deceased man is generally considered ethically sound provided explicit consent for its use has been made, thereby protecting the man's autonomy. When death is sudden (trauma, unexpected illness), explicit consent is not possible, thereby preventing posthumous sperm procurement (PSP) and conception according to current European Society of Human Reproduction and Embryology and the American Society for Reproductive Medicine guidelines. Here, we argue that autonomy of a deceased person should not be considered the paramount ethical concern, but rather consideration of the welfare of the living (widow and prospective child) should be the primary focus. Posthumous conception can bring significant advantages to the widow and her resulting child, with most men supporting such practice. We suggest that a deceased man can benefit from posthumous conception (continuation of his ‘bloodline’, allowing his widow's wishes for a child to be satisfied), and has a moral duty to allow his widow access to his sperm, if she so wishes, unless he clearly indicated that he did not want children when alive. We outline the arguments favouring presumed consent over implied or proxy consent, plus practical considerations for recording men's wishes to opt-out of posthumous conception.

      Keywords

      Introduction

      Posthumous conception of a child long after a man has died has become a possibility since the advent of sperm cryopreservation. Children have now been conceived using frozen ejaculate sperm collected before their father's death and, in most of these cases, the man has had the opportunity to give his informed consent for the use of his sperm to allow his widow to have a child after his death (
      • Bahadur G.
      Death and conception.
      ,
      • Pastuszak A.W.
      • Lai W.S.
      • Hsieh T.C.
      • Lipshultz L.I.
      Posthumous sperm utilization in men presenting for sperm banking: an analysis of patient choice.
      ,
      • Raziel A.
      • Friedler S.
      • Schachter M.
      • Strassburger D.
      • Orna B.
      • Ron-El R.
      Birth of healthy twins resulting from donated oocytes and posthumous use of frozen-thawed spermatozoa obtained prior to chemotherapy.
      ). In such instances where consent has been obtained before death, many medical ethicists (
      • Benshushan A.
      • Schenker J.G.
      The right to an heir in the era of assisted reproduction.
      ,
      • Parker M.
      Response to Orr and Siegler – collective intentionality and procreative desires: the permissible view on consent to posthumous conception.
      ,
      • Spriggs M.
      Woman wants dead fiancé's baby: who owns a dead man's sperm.
      ,
      • Strong C.
      Ethical and legal aspects of sperm retrieval after death or persistent vegetative state.
      ), the major reproductive medicine professional societies (European Society of Human Reproduction and Embryology (ESHRE) (
      • Pennings G.
      • de Wert G.
      • Shenfield F.
      • Cohen J.
      • Devroey P.
      • Tarlatzis B.
      ESHRE task force on ethics and law 11: posthumous assisted reproduction.
      ),
      • Ethics Committee of the American Society for Reproductive Medicine
      Posthumous collection and use of reproductive tissue: a committee opinion.
      and the public (
      • Barton S.E.
      • Correia K.F.
      • Shalev S.
      • Missmer S.A.
      • Lehmann L.S.
      • Shah D.K.
      • Ginsburg E.S.
      Population-based study of attitudes toward posthumous reproduction.
      ,
      • Nakhuda G.S.
      • Wang J.G.
      • Sauer M.V.
      Posthumous assisted reproduction: a survey of attitudes of couples seeking fertility treatment and the degree of agreement between intimate partners.
      ) ) are supportive of posthumous conception. Even in the presence of paternal consent, however, some individuals still have concerns about intentionally creating a child who has no chances of having a meaningful relationship with its father, and may be disadvantaged by being born into a single parent family (
      • Bahadur G.
      Death and conception.
      ,
      • Landau R.
      Posthumous sperm retrieval for the purpose of later insemination or IVF in Israel: an ethical and psychosocial critique.
      ,
      • Orr R.D.
      • Siegler M.
      Is posthumous semen retrieval ethically permissible?.
      ,
      • Pobjoy J.
      Medically mediated reproduction: posthumous conception and the best interests of the child.
      ,
      • White G.B.
      Commentary: legal and ethical aspects of sperm retrieval.
      ). Therefore, posthumous conception is still considered an ethically divisive issue, with no universally accepted moral position.
      The first case of posthumous sperm retrieval and storage was reported in 1980 (
      • Rothman C.M.
      A method for obtaining viable sperm in the postmortem state.
      ), with the first child being born using posthumously procured sperm from a man who died suddenly in 1997 (
      • Allen J.E.
      Woman Pregnant by Sperm from Corpse.
      ). This man died from an allergic reaction and did not have the opportunity to give his explicit consent for surgical sperm extraction, nor the use of his sperm to create a child. As such, many ethicists are currently opposed to this type of practice for several reasons. Firstly, they believe that it is morally wrong to interfere with a corpse, with some commentators suggesting that posthumous sperm procurement (PSP) is tantamount to ‘rape of a corpse’ (
      • Hostiuc S.
      • Curca C.G.
      Informed consent in posthumous sperm procurement.
      ,
      • Orr R.D.
      • Siegler M.
      Is posthumous semen retrieval ethically permissible?.
      ). Secondly, without explicit consent from the man, it is impossible to know with certainty what his views were on becoming a father after death. This is said to be a breach of the ethical principle of respect for autonomy, a principle that many ethicists consider to be of paramount importance in bioethical debate. These opponents of posthumous conception suggest that many men, even those who may well have wanted children in life, would be vehemently opposed to having children after death as they could not play any active role in the child's upbringing (
      • Bahadur G.
      Death and conception.
      ,
      • Landau R.
      Posthumous sperm retrieval for the purpose of later insemination or IVF in Israel: an ethical and psychosocial critique.
      ,
      • Strong C.
      • Gingrich J.R.
      • Kutteh W.H.
      Ethics of postmortem sperm retrieval: ethics of sperm retrieval after death or persistent vegetative state.
      ,
      • White G.B.
      Commentary: legal and ethical aspects of sperm retrieval.
      ). Finally, there are serious concerns that the social stigma of having being conceived from a dead father, and the economic and social hardship of being raised in a single parent family, may negatively affect the welfare of the child.
      Current practice in the use of posthumous conception varies significantly around the world (
      • Bahadur G.
      Death and conception.
      ,
      • Bahm S.M.
      • Karkazis K.
      • Magnus D.
      A content analysis of posthumous sperm procurement protocols with considerations for developing an institutional policy.
      ,
      • Hostiuc S.
      • Curca C.G.
      Informed consent in posthumous sperm procurement.
      ,
      • Hurwitz J.M.
      • Batzer F.R.
      Posthumous sperm procurement: demand and concerns.
      ,
      • Kroon B.
      • Kroon F.
      • Holt S.
      • Wong B.
      • Yazdani A.
      Post-mortem sperm retrieval in Australasia.
      ,
      • Landau R.
      Posthumous sperm retrieval for the purpose of later insemination or IVF in Israel: an ethical and psychosocial critique.
      ; Raziel et al., 2010;
      • Strong C.
      • Gingrich J.R.
      • Kutteh W.H.
      Ethics of postmortem sperm retrieval: ethics of sperm retrieval after death or persistent vegetative state.
      ), implying no clear consensus on the correct ethical approach to such treatment. Some countries such as France, Germany, Sweden and Canada completely ban the procedure. Others, such as the UK allow it, but only where explicit pre-mortem paternal consent has been recorded. Israel, however, has one of the most relaxed legislative views on posthumous conception, with posthumous sperm procurement being freely allowed on request by a widow or defacto, with the use of this sperm being sanctioned following a 6 month delay to allow for appropriate mourning. Under these Israeli guidelines issued by the Attorney General, a man does not need to have provided his explicit consent for posthumous conception. A widow's view that he would have supported such an action (implied consent) is seen as sufficient to proceed (
      • Jones S.
      • Gillett G.
      Posthumous reproduction: consent and its limitations.
      ,
      • Raziel A.
      • Friedler S.
      • Strassburger D.
      • Kaufman S.
      • Umansky A.
      • Ron-El R.
      Using sperm posthumously: national guidelines versus practice.
      ,
      • Shefi S.
      • Raviv G.
      • Eisenberg M.L.
      • Weissenberg R.
      • Jalalian L.
      • Levron J.
      • Band G.
      • Turek P.J.
      • Madgar I.
      Posthumous sperm retrieval: analysis of time interval to harvest sperm.
      ).
      Currently, professional guidelines or law in most jurisdictions do not support posthumous conception without explicit paternal consent (
      • Bahadur G.
      Death and conception.
      ,
      • Ethics Committee of the American Society for Reproductive Medicine
      Posthumous collection and use of reproductive tissue: a committee opinion.
      ,
      • Kroon B.
      • Kroon F.
      • Holt S.
      • Wong B.
      • Yazdani A.
      Post-mortem sperm retrieval in Australasia.
      ,
      • Pennings G.
      • de Wert G.
      • Shenfield F.
      • Cohen J.
      • Devroey P.
      • Tarlatzis B.
      ESHRE task force on ethics and law 11: posthumous assisted reproduction.
      ), making the procedure impossible for most individuals who die suddenly as a result of trauma or sudden illness. As a general rule young, healthy men rarely consider death, let alone the concept of conception beyond the grave. A recent survey of reproductive age men reported that just 4% of these men had discussed the topic of posthumous conception with their partners, with even fewer of them actually recording their wishes in a written advance directive (
      • Barton S.E.
      • Correia K.F.
      • Shalev S.
      • Missmer S.A.
      • Lehmann L.S.
      • Shah D.K.
      • Ginsburg E.S.
      Population-based study of attitudes toward posthumous reproduction.
      ). Therefore, the current impasse created by the need for written explicit consent creates an almost total ‘road block’ to posthumous conception outside of Israel. In this paper, we would like to suggest that this restriction is overly onerous and is not in the best interests of most deceased men, their widows or their future potential children. We would like the ‘burden of proof’ to be flipped 180 degrees so that posthumous conception should be allowed on request of a widow, provided there is no written directive from the deceased against such an action, so called ‘presumed consent’.

      Is post-mortem procurement of sperm ethically justifiable?

      Post-mortem conception consists of two steps: the initial procurement and cryopreservation of sperm (posthumous sperm procurement (PSP) ), and then its later use in IVF and intracytoplasmic injection (sperm micro-injection) treatment. Sperm is generally surgically obtained from the male reproductive tract by either needle aspiration of sperm or testicular tissue, open biopsy of the testicle or surgical removal of the entire epididymis and testicle (
      • Hurwitz J.M.
      • Batzer F.R.
      Posthumous sperm procurement: demand and concerns.
      ,
      • Shefi S.
      • Raviv G.
      • Eisenberg M.L.
      • Weissenberg R.
      • Jalalian L.
      • Levron J.
      • Band G.
      • Turek P.J.
      • Madgar I.
      Posthumous sperm retrieval: analysis of time interval to harvest sperm.
      ). Sperm is then extracted from the testicular tissue or epididymal excretions and frozen, where it may be maintained for several years. When ready for use, the sperm is thawed and then injected into oocytes retrieved during IVF treatment. Resulting embryos are created, cultured in the laboratory for up to 5 days, before transfer to the widows' uterus in order to achieve pregnancy. As sperm DNA integrity declines after death, it has been advised that surgical sperm procurement should occur within 36 h of death to give optimal chances of successful pregnancy (
      • Shefi S.
      • Raviv G.
      • Eisenberg M.L.
      • Weissenberg R.
      • Jalalian L.
      • Levron J.
      • Band G.
      • Turek P.J.
      • Madgar I.
      Posthumous sperm retrieval: analysis of time interval to harvest sperm.
      ).
      The practice of pre-mortem surgical sperm retrieval and IVF are well established, with many thousands of healthy children having being born from this technology when used as treatment for obstructive azoospermia (e.g. past vasectomy, congenital absence of the vas deferens). The major ethical concerns with PSP therefore are two-fold. Firstly, society places special emphasis on the proper handling and disposal of a body after death. Actions such as surgical excision of a testicle may be considered by some to be violations of a corpse and, therefore, morally unacceptable (
      • Hostiuc S.
      • Curca C.G.
      Informed consent in posthumous sperm procurement.
      ,
      • Orr R.D.
      • Siegler M.
      Is posthumous semen retrieval ethically permissible?.
      ). Secondly, some commentators believe that performing a surgical procedure on a man without his consent may be considered unethical as it produces no direct benefit to him. Although established clinical practice allows for the next-of-kin to give proxy consent for surgical procedures on their loved ones if they themselves do not have the capacity to give informed consent (comatosed, mentally unstable, young child), this provision is generally only invoked if the surgical procedure is in the best interests of the patient's own health (
      • Hope T.
      • Savulescu J.
      • Hendrick J.
      Chapter 6: medical ethics and law. The core curriculum.
      ). Opponents, however, suggest that surgical sperm retrieval on a dead man can be of no benefit to him, but rather is being performed for the benefit of the widow. As such, they contend that proxy consent is invalid and an unethical practice (
      • Cannold L.
      Who owns a dead man's sperm?.
      ,
      • Orr R.D.
      • Siegler M.
      Is posthumous semen retrieval ethically permissible?.
      ).
      Our view is that surgical extraction of sperm without explicit consent is ethically justifiable for three reasons. Firstly, many countries already allow for organ donation without the explicit consent of the deceased, provided that the family give their proxy consent, or even more liberally in some countries, just because the deceased had not previously recorded their disapproval (opt-out) of organ donation in a donor registry – so called ‘presumed consent’ (
      • Rosenblum A.M.
      • Li A.H.
      • Roels L.
      • Stewart B.
      • Prakash V.
      • Beitel J.
      • Young K.
      • Shemie S.
      • Nickerson P.
      • Garg A.X.
      Worldwide variability in deceased organ donation registries.
      ). Organ donation does not directly benefit the deceased. Furthermore, the surgical procedures relating to the donation of organs is a significantly more disfiguring to the corpse than surgical sperm retrieval, which in its most intrusive form (removal of an entire testicle or epididymis) requires only a small incision in the scrotum which can later be closed in a cosmetically acceptable fashion. Therefore, we cannot see how PSP materially defiles a corpse any more than ethically accepted practices, such as organ donation with only proxy consent from the family or presumed consent.
      Secondly, we reject the concept that PSP and conception do not benefit the donor, or at the very least others' views of the positive legacy left behind after his death. Many men would see the opportunity to continue the family genetic ‘bloodline’ after their death as a distinct advantage. Furthermore, we contend that it is possible for a deceased person to gain benefit from actions taken after death, both those planned before their death, as well as actions not planned for since they were not actively considered while alive. For example, many of us make careful plans while alive for management of our affairs after death. We make wills, take out life insurance and pre-paid funeral plans all with the intent to reduce suffering (emotional and financial) to our family following our death. Even if such practices do not directly benefit us after death, they benefit our family. We would contend that a man, or at least others' views of his legacy, may also benefit from being able to support his widow's use of his sperm after death if that gives her some comfort, even if the deceased never actively considered this possibility in life. Of course many commentators would suggest that a man can only benefit from this ‘peace of mind’ that his partner is able to become a mother if he had actively considered this path of action while still alive. We do accept that in the strictest sense this is true. However, the creation of a ‘living legacy’, a child, from posthumous conception is likely to have a significant positive effect on how others view a deceased individual's life- something of real value to the deceased at least in our own minds. As such, we contend that there are many potential benefits arising from PSP and conception, which justify a minor, non-disfiguring surgical procedure, with only proxy consent from his widow.
      Finally, any minimal morality suggests that when there is tension between an individual's self-interests and morality (e.g. consideration for others), then that individual has a moral duty to take the action that fosters benefit to the other person (widow) if that benefit is considerable (birth of a new human being) and the cost to the individual is minimal- sometimes referred to as ‘the duty of easy rescue’ (
      • Howard R.J.
      We have an obligation to provide organs for transplantation after we die.
      ). One can argue that as the cost to a deceased is minimal (minor non disfiguring surgical procedure) or zero, then a man has a moral duty to assist his partner to have a child after his death. Posthumous conception takes no effort on the part of the man, and it is hard to see how a dead person can be meaningfully harmed by such action at that time, as he has no interests. Therefore in our opinion the morally correct decision is to allow the widow and potential child to benefit from his sperm.

      Argument in support of presumed, rather than explicit or implied consent for posthumous conception

      Most commentators (
      • Bahadur G.
      Death and conception.
      ,
      • Cannold L.
      Who owns a dead man's sperm?.
      ,
      • Hostiuc S.
      • Curca C.G.
      Informed consent in posthumous sperm procurement.
      ,
      • Landau R.
      Posthumous sperm retrieval for the purpose of later insemination or IVF in Israel: an ethical and psychosocial critique.
      ,
      • Orr R.D.
      • Siegler M.
      Is posthumous semen retrieval ethically permissible?.
      ,
      • Strong C.
      • Gingrich J.R.
      • Kutteh W.H.
      Ethics of postmortem sperm retrieval: ethics of sperm retrieval after death or persistent vegetative state.
      ,
      • White G.B.
      Commentary: legal and ethical aspects of sperm retrieval.
      ), and the dominant reproductive medicine professional societies (
      • Ethics Committee of the American Society for Reproductive Medicine
      Posthumous collection and use of reproductive tissue: a committee opinion.
      ,
      • Pennings G.
      • de Wert G.
      • Shenfield F.
      • Cohen J.
      • Devroey P.
      • Tarlatzis B.
      ESHRE task force on ethics and law 11: posthumous assisted reproduction.
      ), suggest that it is not ethically acceptable to allow the use of a dead man's sperm to create a new life without his explicit consent. Most commentators generally accept posthumous conception with consent, so the issue of the welfare of the child is not the pivotal block in their minds; rather, it is the lack of consent and perceived breach of a man's autonomy.
      Opponents of posthumous conception suggest that even if a man had expressed a wish to become a father in life, this cannot be construed as implied consent for the use of his sperm to create new life after his death. This is because being a father is more than just a donor of genetic material to most men. It involves the ability to nurture, love and influence the development of a child; something which clearly is not possible in death. As such, they contend that posthumous conception is an empty form of fatherhood that should not be entertained without prior consent. Although we accept that all men are likely to prefer fatherhood in life over death, we do not believe that this invalidates posthumous conception altogether. Surveys have reported that 92.9% of men who cryogenically store their sperm do give written directives allowing their partner to use their sperm if they were to die (
      • Pastuszak A.W.
      • Lai W.S.
      • Hsieh T.C.
      • Lipshultz L.I.
      Posthumous sperm utilization in men presenting for sperm banking: an analysis of patient choice.
      ). Critics may suggest that this is a biased group, unrepresentative of the general population's views, as they have taken the unusual step of storing sperm. Surveys of couples trying to conceive, however, have also shown high levels of support for the concept of posthumous conception, with only 8.5% of men opposed to the concept (
      • Nakhuda G.S.
      • Wang J.G.
      • Sauer M.V.
      Posthumous assisted reproduction: a survey of attitudes of couples seeking fertility treatment and the degree of agreement between intimate partners.
      ). Therefore, we contend that if the available evidence suggests that most men surveyed actually support their partners having access to their sperm in death, then it is a failure to respect their past autonomy to fail to engage in PSP and conception. The acceptability of posthumous conception is likely to vary depending on the religious and cultural background of the population surveyed, and the parental status of the individuals. Although still yet uncertain, it is possible that men and women who already have children may be less accepting or interested in posthumous conception as they already have experienced parenthood. Further surveys are clearly needed to assess the acceptability of posthumous conception in the general population.
      The current prohibition of posthumous conception in most jurisdictions without ‘explicit consent’ is infringing on the preferred position of the majority, in order to protect the wishes of a minority. As most men, based on the available surveys to date, currently appear to support PSP and donation, and there is arguably a moral duty of easy rescue, it is in the best interests of most men that their partner's options be maximized after their death. As such, a better default position would be to ‘presume consent’ for posthumous conception, unless the individual has previously recorded that he does not wish to become a posthumous father. This is in line with the current trend of ‘nudge’ (
      • Thaler R.H.
      • Sunstein C.R.
      Nudge: Improving Decisions about Health, Wealth, and Happiness.
      ), to nudge people into more desirable default actions. Nudge has been used to support opt-out schemes for organ donation and similar arguments apply to opt-out schemes for posthumous sperm donation.
      Some commentators believe that, in the absence of prior explicit consent, a ‘middle-road’ of ‘implied consent’ is adequate ethical support for autonomous conception (
      • Collins R.
      Posthumous reproduction and the presumption against consent in cases of death caused by sudden trauma.
      ,
      • Spriggs M.
      Woman wants dead fiancé's baby: who owns a dead man's sperm.
      ,
      • Strong C.
      Ethical and legal aspects of sperm retrieval after death or persistent vegetative state.
      ). By implied consent, we mean that in the view of the widow and the deceased's family, it is more than likely that he would have wanted his sperm to be used for posthumous conception purposes. This view may be supported by his prior expressions of wanting children, actively trying for pregnancy or even undergoing infertility treatment. We believe, however, that using this concept of implied consent is flawed for several reasons. Firstly, in most cases, it is likely that there will be no substantial evidence supporting a man's desires to become a father, and as such support is merely going to be hearsay. Since both the widow and the deceased's parents have an obvious vested interest in the outcome, it is unreasonable to suggest that their opinion of his likely wishes is going to be truly representative in every case. Some commentators would suggest that third party consent from the widow would be better referred to as proxy consent rather than implied consent, as there is rarely hard evidence to support a deceased individuals likely wishes. Proxy consent from family members is often used in cases of somatic organ donation, but in that instance there is no conflict of interest as the family of the deceased does not directly gain from the donation; the donation is a truly an altruistic act to benefit another person. In proxy consent for sperm donation, however, the widow and extended family gain from the donation, creating a conflict of interest, which at least potentially may result in a decision that benefits more the widow than truly reflects the likely wishes of the deceased. Finally, the use of hearsay testament from the family to support posthumous conception may create a scenario for familial conflict if one party supports the application (widow) and another (parents, siblings) oppose it. In such a scenario, it is impossible to clarify the deceased's true wishes in the absence of written proof.
      In addition, a recent survey in which couples were isolated from one another and asked what their partners likely wishes would be for the use of their gametes in posthumous conception, 21% of women incorrectly guessed their partners views on the topic (
      • Nakhuda G.S.
      • Wang J.G.
      • Sauer M.V.
      Posthumous assisted reproduction: a survey of attitudes of couples seeking fertility treatment and the degree of agreement between intimate partners.
      ), highlighting the inherent weakness behind implied consent. Therefore, in our opinion the use of ‘presumed consent’ in the absence of written evidence to the contrary is by far a more practical and ethical approach than reliance on implied or proxy consent.

      Is posthumous conception in the best interests of the living, irrespective of consent?

      Ethical discussions can have the tendency to get bogged down in academic argument, without focusing adequately on the clinically important goal. Surely in the context of posthumous conception, the ultimate goal of a policy is to respect the expressed wishes of the deceased and act in the best interests of the living (widow and her child). In our view, it can be argued that the welfare of the living is a far more important consideration than splitting hairs over degrees of consent and infringement of alleged autonomous rights of a deceased person. It is important to remember that the dead person no longer exists, so at that time cannot have interests or be autonomous. Any ‘respect’ is related to creating policies that ensure that the living now are not harmed or fail to have their autonomous wishes respected – that is satisfied by an opt out system for posthumous conception. Put succinctly, if you don't want it, sign out now.
      We accept that the welfare of a widow may be both benefited and harmed by posthumous conception. On the negative side, it can be argued that having a child using the sperm from her dead husband or partner may hinder the grief process, delaying or even preventing the woman from finally accepting the death of her partner and moving on in life. Raising a child as a single woman would of course create some financial hardship for the woman, and the duties of motherhood may reduce her ability to socialise and meet a new partner. On the positive side, using her partners' sperm may be a woman's only realistic chances of becoming a mother. For example, a woman in her late 30's may not have enough time to grieve, meet a new man and establish the relationship to a point where he would consider being a father to her child, before her natural fertility expires. To deny this woman access to her deceased partner's sperm would effectively deny her the ability to experience motherhood. While we acknowledge that being a parent obviously entails stresses and restrictions, most women still see becoming a mother as natural and essential part of being a woman. A child may help give a widow new meaning to life, while being a source of companionship and support later in life. It is our view that, in most cases, the positives of becoming a mother through posthumous conception are far more likely to outweigh the negatives.
      Although our argument does not require it, it is possible to go further. It is proper to consider the reproductive rights of a widow when deciding on the ethical soundness of posthumous conception without explicit consent, as a husband's autonomy is not an absolute right that overrides all other ethical considerations (
      • Childress J.F.
      Chapter 31: the place of autonomy in bioethics.
      ,
      • Jones S.
      • Gillett G.
      Posthumous reproduction: consent and its limitations.
      ,
      • Pobjoy J.
      Medically mediated reproduction: posthumous conception and the best interests of the child.
      ). It is generally accepted that the ethical principle for respect of autonomy is not absolute if the actions of the individual are likely to harm another. We would suggest that by not allowing their widow access to their sperm after death to have a child, a husband may be harming his wife (and even negatively infringing on their wife's reproductive rights), which can be construed as being morally unjust. Marriage often holds an expectation that both parties are willing to have children together in the future, unless clearly stated to the contrary before proceeding with marriage. Indeed, the wedding vows and ceremonies of all the major religions explicitly make reference to future reproduction, children and family. Therefore it could be argued that unless stated otherwise, a man is agreeing to help his wife have children in the future by entering willingly into marriage. This of course does not necessarily apply to those marriages covered by civil ceremony, or unions between individuals with no religious beliefs. However, we contend that, in the context of an orthodox religious marriage, a man has a moral duty to allow his widow access to sperm after his death, provided that he has not made it clear to his wife that he never wanted children or that posthumous conception is not acceptable to him when he was still alive.
      Some commentators (
      • Landau R.
      Posthumous sperm retrieval for the purpose of later insemination or IVF in Israel: an ethical and psychosocial critique.
      ), as well as judiciary presiding over cases of posthumous conception (e.g. the opinions of the Australian Justices Chesterman and Muir, summarized in
      • Pobjoy J.
      Medically mediated reproduction: posthumous conception and the best interests of the child.
      , are opposed to posthumous conception as, in their view, it has significant potential to harm the child. They suggest that these children are likely to be teased and ostracised because of the bizarre and unnatural mode of their conception. They also point to the absence of a father figure to assist in the emotional development of the child, and the probable financial disadvantage those children from single parent families experience as reasons for prohibiting posthumous conception. However, on deeper reflection, none of these arguments stand up to reasoning. Firstly, there is no requirement that a child's peers be made aware of the nature of their conception, thereby exposing the child to ridicule. They may simply state that their father is no longer alive, a statement that is unlikely to invite further discussion from the majority of children. Secondly, surrogate father figures such as a grandfather, uncle or even future step-father can provide adequate father figures for a child. Thirdly, evidence does not support that all children from single parent families are disadvantaged in their development (
      • Golombok S.
      • Badger S.
      Children raised in mother-headed families from infancy: a follow-up of children of lesbian and single heterosexual mothers, at early adulthood.
      ). Rather, the existing research suggests that severe financial disadvantage and emotional deprivation are the primary causes of poor childhood development and later poor adult health (
      • Braveman P.
      • Barclay C.
      Health disparities beginning in childhood: a life-course perspective.
      ). As there is no certainty that either will occur as a result of posthumous conception, it is unjust to deny treatment on this basis. We do, however, recognise the need for further studies that formally assess the emotional and physical wellbeing of children born from posthumous conception so that we have more definitive evidence for the impact of this unusual form of conception on childhood development.
      It has also been suggested that allowing a child to be born by posthumous conception harms another ‘potential child’, a child born to the mother by natural conception after the death of her first partner when she has developed a relationship with a new man. It is possible that a widow's chances of meeting a new partner, or desire to even find a new partner and have a child with him, may be diminished once she has a child through posthumous conception- thereby ‘harming’ the second potential child by denying it the opportunity for life. Opponents of posthumous conception would suggest that that a child born from natural conception with the support and love of a living father has a much better chance of living a happy fulfilled life than a child born from posthumous conception. This is obviously a point of debate, but at the moment there is little or no evidence to actually support the contention that children born from posthumous conception are harmed, thereby weakening this point of conjecture.
      Finally, a key point for consideration is that a person can only be harmed if they are worse off than they would otherwise have been without a particular action occurring. Therefore, the claim that post-mortem conception harms the resultant child amounts to saying that the child is worse off than they would have been if not conceived at all (
      • Parfit D.
      Reasons and Persons.
      ). Clearly, this is a fallacy and must be rejected.

      Why change from explicit to presumed consent is necessary

      At the present time, most assisted reproduction technique units have a policy that only allows for PSP and conception when explicit consent has been given by the man (
      • Bahm S.M.
      • Karkazis K.
      • Magnus D.
      A content analysis of posthumous sperm procurement protocols with considerations for developing an institutional policy.
      ), as this is the firm recommendation made by the relevant professional societies such as ESHRE and Ethics Committee of the American Society for Reproductive Medicine (
      • Ethics Committee of the American Society for Reproductive Medicine
      Posthumous collection and use of reproductive tissue: a committee opinion.
      ,
      • Pennings G.
      • de Wert G.
      • Shenfield F.
      • Cohen J.
      • Devroey P.
      • Tarlatzis B.
      ESHRE task force on ethics and law 11: posthumous assisted reproduction.
      ). Many doctors will not depart from these guidelines for fear of exposing themselves to legal action or professional sanction. Although we agree that it is reasonable to expect explicit consent in cases where imminent death was expected (e.g. terminal cancer), we do not feel that this is appropriate in cases of sudden unexpected death, as written consent is almost never available. Unfortunately, as a result, most requests for PSP are presently declined by medical teams, resulting in few cases actually proceeding to surgical sperm retrieval. A US study reported that just 32% of requests for PSP were honoured by the medical team (
      • Hurwitz J.M.
      • Batzer F.R.
      Posthumous sperm procurement: demand and concerns.
      ), whereas 48% of assisted reproduction techniques units in Australia did not permit PSP at all, despite the fact that 93% of these senior physicians agreed that PSP should be allowed under certain circumstances (
      • Kroon B.
      • Kroon F.
      • Holt S.
      • Wong B.
      • Yazdani A.
      Post-mortem sperm retrieval in Australasia.
      ). Finally, two-thirds of UK based assisted reproduction techniques clinics actively discourage posthumous reproduction (
      • Bahadur G.
      Death and conception.
      ). Clearly, issues surrounding informed consent and legal concerns are limiting access to PSP.
      Reports suggest that only a small proportion of widows who request PSP actually proceed with fertility treatment (Bahadur, 2002;
      • Kroon B.
      • Kroon F.
      • Holt S.
      • Wong B.
      • Yazdani A.
      Post-mortem sperm retrieval in Australasia.
      ,
      • Raziel A.
      • Friedler S.
      • Strassburger D.
      • Kaufman S.
      • Umansky A.
      • Ron-El R.
      Using sperm posthumously: national guidelines versus practice.
      ,
      • Shefi S.
      • Raviv G.
      • Eisenberg M.L.
      • Weissenberg R.
      • Jalalian L.
      • Levron J.
      • Band G.
      • Turek P.J.
      • Madgar I.
      Posthumous sperm retrieval: analysis of time interval to harvest sperm.
      ), and when combined with the low proportion of cases of sudden deaths that actually proceed to PSP, the result in a relatively small numbers of babies born from posthumous conception. For example, an Australian survey reported a total of only two births from PSP for a population of 24 million people (
      • Kroon B.
      • Kroon F.
      • Holt S.
      • Wong B.
      • Yazdani A.
      Post-mortem sperm retrieval in Australasia.
      ), a figure which seems to be generally representative of the small number of posthumous conceptions reported in other countries that do allow for PSP (Bahadur, 2002;
      • Hurwitz J.M.
      • Batzer F.R.
      Posthumous sperm procurement: demand and concerns.
      ,
      • Shefi S.
      • Raviv G.
      • Eisenberg M.L.
      • Weissenberg R.
      • Jalalian L.
      • Levron J.
      • Band G.
      • Turek P.J.
      • Madgar I.
      Posthumous sperm retrieval: analysis of time interval to harvest sperm.
      ). When one considers the large number of sudden deaths that occur in reproductive age men, however, there is scope for a significant increase in babies born as a result of posthumous conception. In the USA alone, it is reported that 72,000 people died in motor vehicle accidents and from gunshot wounds in 1 year (
      • Mokdad A.H.
      • Marks J.S.
      • Stroup D.F.
      • Gerberding J.L.
      Actual causes of death in the United States, 2000.
      ). Since accidental death through motor vehicle accidents, drowning, gunshot wounds and occupational injuries are the number one cause of death for men under the age of 45 years (
      • Stiglets C.
      Unintentional injuries in the young adult male.
      ); it is likely that the number of potential cases for PSP would number in the thousands per year in just the USA alone, with a further tens of thousands of additional cases world-wide.
      At present, most of the general public are not even aware of the availability of posthumous conception (
      • Barton S.E.
      • Correia K.F.
      • Shalev S.
      • Missmer S.A.
      • Lehmann L.S.
      • Shah D.K.
      • Ginsburg E.S.
      Population-based study of attitudes toward posthumous reproduction.
      ). We believe that with better education of the general public concerning the availability of PSP, plus the movement from a standard of explicit to presumed consent, many more children would be born from this technique. Before this transition occurs, however, professional societies such as ASRM and ESHRE will need to modify their position statements on posthumous conception to allow for presumed consent, and assisted reproduction techniques units will need to develop adequate treatment protocols for their staff to follow.

      Development of an ‘opting out’ registry for posthumous conception

      If the medical profession and society in general were to accept a movement away from explicit to presumed consent, then it is appropriate that mechanisms are set in place so that men can easily record their wishes not to be involved in posthumous conception. Although it is possible to record these wishes in a will, it is unfortunate that many men of reproductive age have not gone to the effort and expense of recording a last will and testament. It is our belief that a better system would be a publically funded opt-out registry.
      Many countries already have such opt-out donor registries for somatic organ donation. In these countries, it has been decided that because many people fail to voluntarily record their wishes, resulting in a demand for organs that far outstrips supply, a better approach that increases the supply of cadaver organs is presumed consent backed up by an opt-out registry. Supporters of this approach highlight that the capacity to opt-out maintains autonomy, whereas utilitarian moralists justify this approach in terms of relieving suffering for many critically ill individuals (
      • Cohen C.
      Chapter 22: the case for presumed consent to transplant human organs after death.
      ). Although these opt-out donor registries do not currently cover the procurement or use of gametes, it is not unreasonable to suggest that individuals be requested to record their views on the use of their gametes after death. It should be made clear that failure to do so would constitute presumed consent. Those men who are vigorously opposed to the concept of posthumous conception will of course be motivated to record their beliefs, whereas those men comfortable with the concept will either consent to posthumous donation, or be so unconcerned with the use of their sperm posthumously that they are not even motivated to register their wishes. Either way, we feel this system maintains autonomy, is relatively simple and easily accessible, and would have minimal cost implications to government.
      We do acknowledge that there are several significant ethical differences between somatic organ and gamete donation. Firstly, somatic organ donation aims to help save or improve an existing life, whereas gamete donation is involved in creating new life. Secondly, a donor of somatic organs and their family do not gain from the donation, where that is not the case for gamete donation where both the donor and his family benefit, as outlined earlier. These differences, however, do not invalidate the use of an opt-out registry for posthumous conception as this system still supports autonomy and generates benefit for individuals, both those currently alive (widow) and future individuals (child).
      Currently, an opt-out non-donor registry system for organ donation is used in Austria, Croatia, Czech Republic, France, Hungary, Poland, Portugal and Slovakia (
      • Rosenblum A.M.
      • Li A.H.
      • Roels L.
      • Stewart B.
      • Prakash V.
      • Beitel J.
      • Young K.
      • Shemie S.
      • Nickerson P.
      • Garg A.X.
      Worldwide variability in deceased organ donation registries.
      ). In these countries, people are not asked for explicit consent to use their organs after death (consent-in system), but rather are presumed to consent for donation if they do not record their wishes on the opt-out registry; a similar process to what we are advocating for PSP-based conception. Where such opt-out registries do not exist, they could be constructed specifically for posthumous conception. However, we do recognise that this would entail significant costs for a relatively modest gain, making a stand-alone posthumous conception registry a valid approach only in relatively wealthy countries with adequate access to reproductive medicine services, and where the allocation of health resource to posthumous conception would not adversely affect the delivery of other health services.
      Opponents of presumed consent will suggest that a better system is to record intent for posthumous use of sperm in a donor registry, thereby allowing explicit consent, perhaps as a part of consent-in registries for organ donation. Although this would be the best response if we could be assured that 100% of the population would record their views, the reality is quite different. As most countries do not mandate individuals to register on a donor registry, the proportion of people actually enrolled is generally less than 40% (
      • Rosenblum A.M.
      • Li A.H.
      • Roels L.
      • Stewart B.
      • Prakash V.
      • Beitel J.
      • Young K.
      • Shemie S.
      • Nickerson P.
      • Garg A.X.
      Worldwide variability in deceased organ donation registries.
      ). We do not advocate mandated donor registration, as occurs only in New Zealand (
      • Rosenblum A.M.
      • Li A.H.
      • Roels L.
      • Stewart B.
      • Prakash V.
      • Beitel J.
      • Young K.
      • Shemie S.
      • Nickerson P.
      • Garg A.X.
      Worldwide variability in deceased organ donation registries.
      ), as this may elicit ‘coerced’ unconsidered responses and is in itself a breach of autonomy. Voluntary registration with an opt-out provision is in our view the best approach.
      Men's beliefs may change with time, especially as they pass through significant life milestones, such as marriage, fatherhood and divorce. Therefore, we would suggest that men be prompted to update their views on posthumous conception after these significant life events, or every 5 years. Intentions could be surveyed regularly when drivers licences are renewed, or when applying for a marriage licence or registering a birth.

      Proposed clinical protocol for posthumous conception

      After consideration of the various ethical and practical concerns relating to PSP and conception, we would suggest the following points are a good basis for the development of posthumous conception treatment protocols.
      IVF units should develop clear written guidelines on the topic of posthumous conception that cover both the legal and practical issues relating to the issue. There is no time to develop these protocols at the time of a patient's death, with uncertainty on the part of the clinical team only likely to increase the deceased families' grief.
      Almost all requests for PSP from a widow or defacto partner should be honoured by prompt recourse to surgical sperm extraction, preferably within 36 h of death, so as to obtain optimal quality sperm (
      • Shefi S.
      • Raviv G.
      • Eisenberg M.L.
      • Weissenberg R.
      • Jalalian L.
      • Levron J.
      • Band G.
      • Turek P.J.
      • Madgar I.
      Posthumous sperm retrieval: analysis of time interval to harvest sperm.
      ). Time restraints, plus the acute grief state of the widow, do not allow for adequate informed consent on the relative merits of posthumous conception at the time of the man's death. These are best discussed at a later date.
      The medical team should mandate a court directive to perform PSP, preventing later potential criminal charges of illegal interference with a corpse. Ideally in the future, the law would be reformed so as to make this step unnecessary.
      In our view only three scenarios preclude PSP: the deceased had previously given written directive for his sperm not to be used for the purposes of posthumous conception; the deceased had a medical condition (genetic or infectious) that poses significant risks to the health and welfare of the child if posthumous conception were to be allowed; the request for PSP is made by family other than the widow or partner. The parents or siblings have no right to request sperm storage without the support of the widow (
      • Ethics Committee of the American Society for Reproductive Medicine
      Posthumous collection and use of reproductive tissue: a committee opinion.
      ,
      • Pennings G.
      • de Wert G.
      • Shenfield F.
      • Cohen J.
      • Devroey P.
      • Tarlatzis B.
      ESHRE task force on ethics and law 11: posthumous assisted reproduction.
      ).
      The cryopreserved sperm should not be used to create a pregnancy until 12 months has passed since the man's death, allowing adequate time for the widow to make an informed decision not clouded by depression and acute grief. Furthermore, the widow should receive counselling on the difficulties of single parenthood and have a formal psychiatric assessment to ensure that she is of sound mind before being allowed to undergo fertility treatment (
      • Ethics Committee of the American Society for Reproductive Medicine
      Posthumous collection and use of reproductive tissue: a committee opinion.
      ,
      • Pennings G.
      • de Wert G.
      • Shenfield F.
      • Cohen J.
      • Devroey P.
      • Tarlatzis B.
      ESHRE task force on ethics and law 11: posthumous assisted reproduction.
      ).

      Conclusion

      To the best of our knowledge, we are the first to suggest that ‘presumed consent’ should become the default for allowing posthumous conception, with posthumous conception only being prohibited if a man has actually recorded his wishes not be involved in an advance directive or a donor opt-out registry. This is a significantly different view to that held by most ethicists who believe that only ‘explicit consent’ allows for ethically justifiable treatment. However, we have shown that although few men actually consider the topic of posthumous conception in life, most men surveyed to date are in favour when asked for their opinion. As such, it is our view that it is not ethically justifiable to block the majorities' access to treatment because of the concerns of a minority, especially where the interests of the widow (and even potential child) are at stake. We recognize, however, that views on PSP and conception are likely to vary around the world, depending on local religious and cultural customs. As such, more surveys of the general public's opinions on posthumous conception need to be undertaken in a wide variety of countries before definitive conclusions can be made.
      The use of implied consent, where family members provide a proxy consent based on their own impression of the likely views of the deceased, is in our opinion fraught with difficulties (potential for conflicting views among family members, assessment of deceased's views may be biased by widows preferred outcome). As such, presumed consent is a preferable standard for action than implied (proxy) consent.
      Our discussion has outlined a number of advantages to the deceased, their widow and child from posthumous conception. It is our view that the welfare of the child is the most important consideration of all. As there is no evidence that a child is harmed by posthumous conception, provided that they are adequately cared for in childhood, then there is no ethical justification for blocking this type of treatment. We believe that a widow is the best position to judge her own capabilities to parent, taking into consideration her employment, financial prospects, social supports and desire to become a mother. Therefore, it should be left up to the widow to decide if PSP and conception proceed, with minimal intervention by the state and the full support of the medical profession.

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