Editorial

Posthumous conception and the need for consent

We should require prior consent to safeguard the interests of the deceased

MJA 1999; 170: 53-54

Any attempt to formulate a coherent ethical framework in this area must be sensitive to the many interests at stake. In addition to considering the grieving family member's desire to produce a child, policymakers must identify and evaluate other important interests. For example, protecting the psychological well-being of the resulting child should receive serious attention. Might the child be adversely affected by being knowingly denied access to one biological parent? Also, the interests of the deceased's family are important, as posthumous conception of a child will probably have enduring emotional, psychological and financial implications for the family. However, the issue most easily overlooked, as the dead have no voice, concerns the interests of the deceased. Specifically, what significance ought to be afforded the deceased's interests when we have little or no evidence regarding his or her wishes for, or objections to, posthumous procreation?

Some may claim that we cannot speak sensibly of the dead as having "interests" which can be "harmed" by the conduct of surviving parties because, once a person dies, that individual no longer has any interests and therefore concepts of "harm" or "benefit" are inapposite.¹ It is clear, though, that certain acts committed after a person's death can either harm or promote that individual's interests. For example, a posthumous event that destroys a deceased person's reputation harms his or her interests because it adversely affects the way that individual is remembered after death.²

Posthumous conception likewise affects the deceased's interests, because it recasts the content and contours of the deceased's life. When it occurs without the person's consent, it deprives an individual of the opportunity to be the conclusive author of a highly significant chapter in his or her life. Indeed, this is one of the reasons why any attempted analogy between posthumous conception and organ donation fails. Controlling the fate of gametes is different from -- and more significant than -- controlling the fate of cadaveric organs, because procreation is central to an individual's identity in a way that organ donation is not. As the consequences of posthumous conception profoundly affect core values held by the deceased while alive, respect for autonomy requires that this procedure should not be permitted unless the deceased's consent is clear.

The interests of the living can also be adversely affected by permitting the harvesting of a deceased person's gametes without his or her consent. As a society, we recognise that most people find it important to attempt to control certain postmortem events.³ Consequently, we have developed procedures that allow us to control certain matters after death, such as the transfer of property, the nomination of beneficiaries, or the transplantation of organs.^1,3 Given that it is important to individuals that their wishes be respected after death, it is also important that they have the assurance that their bodies will not be used in a manner inconsistent with their expectations.

In our culture today, most people do not expect that their gametes will be used for procreation after death. As this possibility is rarely contemplated, people generally do not make their views regarding this practice explicit. In the vast majority of cases, then, considerable uncertainty exists concerning the deceased's wishes in this regard. The claim might be made that, as it is possible that using the deceased's gametes for procreation would have been consistent with that person's wishes, a request to do so should be granted. However, it is both unfair and undesirable to place the onus upon individuals to state their opposition to posthumous conception. As posthumous conception is not the norm in our society, there is no reason to expect people who might be opposed to the practice to make their objections known.

When the living can only speculate about the deceased's wishes, posthumous conception should not be permitted. Even if there is evidence that the deceased desired parenthood in life, it is a considerable leap to assume that he or she would have wished to become a parent posthumously. Evidence indicating a desire for the former does not necessarily support a conclusion that the latter was also desired.

If the deceased person's wishes are to be safeguarded adequately in posthumous reproduction, clear evidence of intent to reproduce after death should be required. The strong procreative interest of family members seeking posthumous conception may tempt them to portray the deceased's values and desires in ways that are not necessarily compatible with the interests of the deceased. Given that posthumous procreation, unlike organ donation, entails significant and permanent implications for the deceased's family, the potential for a serious conflict of interest justifies a far more limited decision-making role for the family.

Despite the finality of death, the relationship of the living to the dead does not altogether cease with the grave. To some extent, it continues through the actions of the living as they carry out the last wishes of the dead. A presumption against the unauthorised use of gametes after death represents an important statement about the value of bodily integrity and self-determination. We should approach posthumous procreation with great caution, even when the deceased's wishes are known. When these wishes are unknown, respect for individual autonomy and dignity requires that the deceased's body should not be used in a way that, in all probability, was never contemplated in life.

Anne Reichman Schiff
Associate Professor of Law
University of Pittsburgh School of Law, Pittsburgh, PA, USA

1. Partridge E. Posthumous interests and posthumous respect. Ethics 1981; 91: 244-247, 259-261.
2. Feinberg J. Harm and self-interest. In: Hacker PMS, Raz J, editors. Law, morality, and society: essays in honour of HLA Hart. Oxford: Clarendon Press; 1977: 304-308.
3. Feinberg J. The rights of animals and unborn generations. In: Blackstone WT, editor. Philosophy & environmental crisis. Athens: University of Georgia Press; 1974: 57. Reprints: Associate Professor A R Schiff, University of Pittsburgh School of Law, 3900 Forbes Avenue, Pittsburgh PA, 15260 USA.

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