Fertility-treatment innovations mean that all sorts of people who would not have been able to have a baby a generation ago are now able to bring life into the world. Now, some are arguing the ranks of the newly fertile should include dead people.
In Australia, a woman was granted permission last month to use her dead husband's sperm in an in-vitro fertilization (IVF) attempt to create a child. In Israel, grieving grandparents are petitioning a court to allow them to use their dead son's sperm to conceive a grandchild. And in California, a woman is due in three months with her husband's child — even though her husband died not long before she got pregnant.
(More on Time.com: Could Lab-Grown Sperm Help Infertile Men?)
The rules of post-humous baby-making are only now being written, but it's a dicey undertaking because individual situations vary so widely. It's not uncommon for soldiers on the brink of a dangerous deployment to freeze sperm so that their wives can have a child should they die. And patients diagnosed with cancer are increasingly turning to fertility preservation to ensure they can become parents. But what happens when the patient dies, as in the California case in which the husband froze sperm prior to cancer treatment and indicated his desire for his wife to bear his child? And how to rule on the Israeli grandparents' quest for a grandchild from their son who was injured last year and died after two weeks in a coma?
“That's much less straightforward,” says Theresa Erickson, the San Diego attorney for the pregnant California woman. “Creating a grandchild is much different than creating a child. Imagine what the child will think: My dad's dead and he never even knew I existed. It's a pretty sticky ethical and moral dilemma.”
Erickson's client had little problem gaining access to her husband's sperm; a California law governing the posthumous use of sperm requires a fetus be in utero within two years of the death, assuming the donor gave consent before he died. Erickson is petitioning for her client's husband's name to be listed on the birth certificate.
(More on Time.com: First Comes Cancer, Then Come Children: The New World of Oncofertility)
In Israel, 27-year-old Ohad Ben-Yaakov wasn't married or in a committed relationship. But his parents, Mali and Dudi Ben-Yaakov, had his sperm extracted and are waiting for a ruling from the country's attorney general to find out whether they can use IVF to impregnate a surrogate with his child. “If we were entitled to donate the organs of our son why are we not entitled to make use of his sperm in order to bring offspring to the world?” they asked in Haaretz, an Israeli newspaper.
Israel is already IVF-crazy; health insurance pays for as many IVF cycles as needed to achieve the birth of up to two babies. In 2003, it codified guidelines surrounding posthumous reproduction that allow a spouse or partner to use a dead man's sperm unless he had specified that was unacceptable.
According to Tablet Magazine:
“This notion of presumed consent, that we can assume that a man would want to have genetic children after his death, that was really pushing the envelope at the time in comparison with other countries,” says Vardit Ravitsky, an Israeli-born assistant professor in the Bioethics Programs at the Université de Montréal Faculty of Medicine. But the ministry refused to allow a man's mother or father similar access, concluding that parents have no legal standing regarding their children's fertility, “[n]ot in their lifetime, and certainly not when they are dead.”
(More on Time.com: Want to Freeze Your Biological Clock? One Doc Says, Go for It)
In Australia, Jocelyn Edwards and her husband, Mark, were on the brink of signing the paperwork to commence fertility treatment when he was killed last year in a work accident. Although it's illegal to use sperm without donor consent in New South Wales, where they lived, a judge ruled in favor of Edwards, who had the support of her late husband's parents and siblings.
“Mark would be so happy,” Edwards said outside the court, according to the Daily Telegraph. “We're going to have our baby.”
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