Guest post: Karey Harwood on Posthumous Reproduction

Today we welcome a guest post from Karey Harwood, author of The Infertility Treadmill: Feminist Ethics, Personal Choice, and the Use of Reproductive Technologies.  Here she ponders the bioethical issues surrounding a couple who want to use frozen sperm from their deceased son and an egg donor to become grandparents.  While the idea of posthumous birth is nothing new, posthumous conception certainly is–and a controversial one at that.  Does the “right to parenthood” extend to a “right to grandparenthood?”–Alex

Cases in bioethics are often about degrees of discomfort. We get acclimated to new technologies and procedures that once seemed shocking.  The first heart transplants, I like to remind my students, were greeted with considerable unease because many people believed the heart was the seat of a person’s soul.  As far as I can tell, that view no longer exists to any appreciable degree.  Any mystical ideas we once attached to the heart have been more or less supplanted by thoroughly pragmatic concerns, like how to suppress the body’s immunological rejection of a transplanted organ.

On the other hand, just when we thought we were acclimated to a new technology and its everyday uses in modern medicine, some new limit-pushing application unsettles us, stirring up concerns that we’re slipping down a slippery slope to who-knows-what outcome.  The use of frozen gametes (usually sperm) to create a child posthumously is an example of just such a case, especially when the people commissioning the creation of the child are its prospective grandparents.

Yes, the latest twist on assisted reproduction involves the legal battle of an Israeli couple whose 27-year-old son died single and childless. Mali and Dudi Ben-Yaakov were able to have their son’s sperm extracted and frozen at the time of his death.  Now they are waiting, as of March 2011, to see if they will be permitted to find a surrogate mother—a woman willing to use her own egg and their deceased son’s sperm to conceive, gestate, and deliver their grandchild.

To make sense of this case and the reactions it might engender, it helps to put it into context and to draw some initial distinctions.  How is posthumous birth different from posthumous conception, and why might posthumous conception by a surviving spouse be different from posthumous conception by prospective grandparents?

There have always been cases of children born “posthumously,” in the sense that their fathers died after they were conceived.  You may recall, for example, the photos of the “9/11 babies” that appeared during the spring of 2002 – pictures of children born to women who had lost their husbands on 9/11.

The opposite scenario, in which the mother rather than the father dies before the child is born, is obviously superseded by a major biological obstacle: if the mother dies, so too (usually) dies the fetus.  But it is not impossible for an otherwise viable fetus to survive its mother’s death.  Moreover, the sad reality of women dying in childbirth, though far less common than it once was, still exists today (about 1/10,000 births).

These unfortunate scenarios have existed throughout human history, but only the advent of IVF (in vitro fertilization) and the ability to freeze and store human sperm and more recently human eggs, have made it possible to set about creating—after the death of the biological parent—a child who otherwise would not have existed.

Morally speaking, the distinction between posthumous birth and posthumous conception seems to be a significant one.  A posthumous birth is an accident of fate. The child’s prior conception requires no special justification.  A posthumous conception, by contrast, is a deliberate undertaking by the surviving spouse to create a child alone, without the living presence of the other biological parent.  The reasons a person might give for undertaking such a project could include consolation for the loss of the spouse, a desire to continue the life plans the couple had made together, and any other reason imaginable.  However, at the end of the day, the most basic moral justification for posthumous conception seems to lie in an individual’s “right to parenthood.”  Society has become largely acclimated to the idea of a “right to parenthood,” hasn’t it?

According to Vardit Ravitsky, an assistant professor in the Bioethics Programs at the Université de Montréal Faculty of Medicine, “Today, the idea that I have a right to have a genetic child is much more accepted than in the past. To extend that one generation to genetic grandchildren maybe is not that farfetched.”

Of course, it’s possible to challenge Mr. Ravitsky’s interpretation of the zeitgeist.  Not all that long ago, the language of “right to parenthood” would have indeed seemed farfetched to many people, or at least as farfetched as “right to grandparenthood” may seem to some people now.  Before John Robertson’s influential 1994 book, Children of Choice: Freedom and the New Reproductive Technologies, there was an equally influential 1987 statement from the Congregation for the Doctrine of the Faith:

Every human being is always to be accepted as a gift and blessing of God.  …[H]uman procreation has specific characteristics by virtue of the personal dignity of the parents and the children: the procreation of a new person, whereby the man and the woman collaborate with the power of the Creator, must be the fruit and the sign of the mutual self-giving of the spouses, of their love and of their fidelity.  The fidelity of the spouses in the unit of marriage involves the reciprocal respect of their right to become a father and a mother only through each other.

Although arguably out of step with the 21st century on reproductive rights, the Catholic Church has remained steadfast over several decades in its refusal to recognize an individual’s right to become a parent outside the context of marriage.  Reproduction is not understood to be a “right” so much as it is a “gift,” and it is always undertaken in “collaboration” with the Creator.

Robertson’s rights language and his philosophical understanding of individual freedom could not be more different.  So which is more culturally ascendant?  Certainly the numbers of people using assisted reproductive technologies, egg and sperm donors, and yes, even posthumous conception, would suggest that we are indeed more comfortable with the idea of a “right to parenthood.”

Posthumous conception has become acceptable in the U.S. and abroad when it can be demonstrated that the deceased spouse gave his explicit permission for his gametes to be used posthumously.  As of 2003 in Israel, it is permissible to use gametes posthumously so long as the individual did not leave explicit instructions to the contrary. Soldiers going off to war leave frozen sperm behind for their wives.  Widows may make use of the sperm to become pregnant, either raising the child alone or choosing later to remarry.  It happens.

But the Israeli couple, the Ben-Yaakovs, did not have any particular instructions from their son regarding his reproductive wishes. He was unmarried, so there is no widow desiring children.  It’s a very sad case of aging parents mourning the loss of their son and the possibility of future grandchildren.

If there are new degrees of discomfort in posthumous conception by prospective grandparents, what is the source?  What does this particular use of reproductive technologies stir up that may not have been fully settled after all?

Here are a few suggestions.  If the morality of posthumous reproduction rests on the concept of a “right to parenthood,” it may be a stretch to apply that same justification to a prospective grandparent. After all, the Ben-Yaakovs already experienced reproduction and all the joys and sorrows of parenthood.  They had a son.  Unless the “right to parenthood” is so expansive that it includes the right to have a particular kind of child, the kind of child that would produce grandchildren, the “right to parenthood” does not seem to justify using a deceased son’s sperm, without his permission, to create a grandchild.

The absence of the son’s permission is problematic, especially to an American mindset, because it runs counter to our deep valuing of individual autonomy in reproductive decision-making.  But the absence of a couple that wanted to have a child in the first place is also problematic because it raises concerns about the subtle commodification of human life.

According to philosopher Stephen Wilkinson, to treat something as a commodity is to treat it as if 1) it has a price; 2) it is fungible (interchangeable with other things); and 3) it has only instrumental value. It’s really only the last of these that interests me here because I believe fears of instrumentalization lie at the heart of any residual discomfort about posthumous conception.

Let me put it this way: even if the Ben-Yaakovs get permission to use their son’s sperm, they will still need the rest of the raw material needed to make a baby: an egg. They are not looking for a wife for their son, as he is deceased.  They are not even looking necessarily for a mother who would raise their grandchild.  They just need the gamete, the missing part, to create the missing grandchild.  I think we at least have to ask whether such a quest does in fact do damage to human dignity because it so completely removes reproduction from the context of a relationship between the child’s living parents.  In their quest for consolation, for compensation, to fulfill an obligation to continue their family line, would they be “instrumentalizing” the surrogate mother, using her as a “mere means,” as Kant put it, rather than as an end in herself?  Would they be instrumentalizing the child?

The usual response—at least to the last question—is that all sorts of parents procreate for all sorts of selfish reasons: to improve a marriage, to vicariously pursue dreams, etc.  Yet these baser motivations need not represent the sum total of parental (or grandparental) attitudes toward the child.  Conceiving the child for instrumental reasons can co-exist with loving the child “as an end in himself,” and often the latter overtakes and triumphs over the former.  Why couldn’t it be possible for the Ben-Yaakovs to love and care for their grandchild, as good parents would?  Perhaps it is.

I think what we can learn from the discomfort over posthumous conception is that our initial feelings about a new case always need to be investigated. It is right and good to resist the commodification of human life and to resist the instrumentalization of persons, including especially women, who seem perennially vulnerable to instrumentalization in reproductive projects.   We should of course pursue worthy ideals of what makes a good parent or grandparent.

At the same time, we shouldn’t overestimate our own power.  No matter how a child arrives, no matter how unsettling his origin story, he is always his own new person, beyond and apart from all prior expectations.  Perhaps it’s not such a bad idea to be reminded, every now and again, that every child is truly a gift.

Karey Harwood is associate professor of philosophy and religion at North Carolina State University. She is author of The Infertility Treadmill: Feminist Ethics, Personal Choice, and the Use of Reproductive Technologies. Read her previous blog posts about the California octuplets case and about the film The Kids Are Alright, archived here.