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Just
prior to ending his own life, Deborah Hecht’s live-in partner,
William Kane, bequeathed several vials of sperm to her. The
sperm were cryogenically preserved and stored at a sperm bank. By
the terms of Kane’s will, should she so desire, Deborah could
use the sperm to create his future children. After Kane’s
death, Deborah attempted to claim the sperm vials from the sperm
bank, but the bank refused to release them to her. A series
of litigations between Deborah and Kane’s adult children
ensued over the rightful ownership of the sperm. Kane’s
children wanted the sperm destroyed, but Hecht sought possession,
and argued that Kane’s will had legally left them exclusively
to her. One of the key issues in the dispute was over the
prospect of posthumous reproduction – when a child is conceived
after one or more of its biological parents have died.
Advances
in reproductive technologies have made it routine to freeze sperm,
eggs, and even embryos, and then later revive them in a completely
viable form. Technical competence in cryopreserving gametes has
provided greater reproductive opportunities. For example,
individuals who have reproductive disabilities, and need gametes
to produce their own babies, can go to sperm and egg repositories
where they can purchase gametes to meet their reproductive needs. Gamete
banks facilitate reproduction, providing easy access without the
hassle of having to procure fresh sperm and eggs from ready donors. A
health facility can make the collections, and put them on ice for
future use. By turning gametes into frozen products, the
distance between the donor and the recipient buyer is attenuated,
eliminating potential paternity and maternity disputes, and other
related problems that arise when the two parties know each other. Cryotechnology
also protects the reproductive rights of individuals receiving
medical treatments, or engaging in activities that have a chance
of damaging reproductive tissue, impairing the ability to produce
biological children in the future. By cryopreserving their
gametes, the right to a biological child is preserved even when
there is subsequent damage to the reproductive tissue.
Gametes
can survive many years at ultra-cold temperatures, creating the
opportunity to extend the reproductive lifespan beyond an individual’s
natural life. A stored vial of viable egg or sperm may still
be in the freezer when its donor’s life has come to an end. In
these circumstances, should we be allowed to thaw the donor gametes
to produce a posthumous child? When the donation is to be
anonymous, the decision may be less critical (but, see Johnson for
why we might want a donor to remain alive and available for questioning),
but when the intention is to conceive a child who recognizes the
donor as her posthumous parent, the procedure can reverberate with
controversy. Hecht is one such example. As
cloning and other new technologies for creating babies are developed
and perfected, we can expect these controversies to continue to
echo.
In Hecht,
and cases like it, the argument most often frequently cited in
favor of permitting posthumous reproduction and conception is centered
on privacy rights. Reproductive choices, so it goes, are
extremely private and intimate decisions that should be made without
the intrusion of the courts and legislatures. The decision
about whether to have a child, whether it be achieved during one’s
lifetime, or after it, should be left to the private parties, free
from interference from others. Both state and federal courts have
recognized procreative decisions as a sphere of activity that the
government should stay out.
Tied
to the privacy right is the right to procreate as enunciated in Skinner
v Oklahoma. Depriving an individual of the right to
procreate is an incursion into the most private zone of a person’s
existence. While most would recognize the importance of procreative
choice, defining its scope can be quite difficult. While
Supreme Court decisions have consistently upheld procreative liberties,
they have simultaneously kept their sights on so-called traditional
American notions of family values. See, e.g., Hardwick v.
Bowers. Thus, a court may acknowledge rights relating to
normal, biological reproductive strategy, but may stop short of
promoting all reproductive rights, especially those relating to
the newer and more controversial procreative technologies.
A
litany of complaints have been released by the nay-sayers to posthumous
reproduction. As far as personal space and procreative liberties,
a key question is whether such fundamental rights survive death. Even
assuming that the right to procreate is broader to protect reproduction
of any kind, should a dead person’s requests be permitted
to extend beyond his lifetime?
Another
problem with posthumous conception concerns beneficiaries of the
decedent’s estate. How do the decedent’s assess
get divvied up when there is a chance that an unborn child may
coming chasing after the estate many years after all has settled. The
finality of financial and inheritance proceedings (such as probate
and social security) that become available after death is another
thorny issue for post-mortem reproduction. Although the decedent
must have wanted his genetic offspring to have financial security,
if his rights are extinguished by death, the principles on which
this issue would be decided reside on very different grounds.
Another
concern is the effect of posthumous reproduction on the integrity
of the traditional family unit and the psychological well-being
of a child who is born an orphan. In asking the court to
prohibit Hecht from getting access to their father’s sperm,
Kane’s children, KatherineKane and William
Kane, Jr., claimed that its destruction would “help guard
the family unit in two different ways”:
First, such an order would prevent the birth of children who will
never know their father and “never even have the slightest
hope of being raised in a traditional family.” Second, such
an order would “prevent the disruption of existing families
by after-born children,” and would “prevent additional
emotional, psychological and financial stress on those family members
already in existence.” They characterized the desire to father
children after one's death as “egotistic and irresponsible,” and
stated that they “have lost their father to a tragic death
which Hecht could easily have prevented; they do not wish to suffer
any more at her hands. Further, they do not wish to be troubled
for the rest of their lives with worries about the fate of their
half-sibling(s).”
Given
that reproduction is so essential a behavior, how far should society
go in putting limits on it? Is it enough that a cryogenic
orphan could end up a cryogenic waif because its single-parent
in unable to adequately support her, or because the psychological
damage incurred by being born to a dead parent incapacitated her
ability to cope with the real world?
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