In 2010 21-year-old Niklas Evans was assaulted outside a bar in Texas. He ended up in a coma and died after 10 days. His heartbroken mother, Missy Evans, requested the hospital to retrieve her son’s sperm so that she could create a grandchild with a surrogate mother. The case was too controversial for American fertility clinics so she ended up travelling to South Africa.
Did Missy and her doctors act ethically in removing sperm from Niklas’s dead body without his consent? This is the question that Anna Smajdor, of the University of East Anglia, tackles in the Journal of Medical Ethics, based on a discussion of some cases which have occurred in England. Like many other bioethicists, she opposes it.
The dead still have interests. The logic of post-mortem sperm retrieval without explicit consent could be extended to many other issues, like organ extraction, exhibition of the body, probate law and so on. Legally speaking, much more than a child is at stake.
The validity of inferred consent is a dangerous principle. “In medicine generally, consent for procedure X cannot be inferred from someone’s previous beliefs about situation Y,” she writes. If men knew what was involved in electro-ejaculation, they might well refuse their consent, even if they did express a wish to have children.
Proxy consent for one’s own benefit is a dangerous principle. She writes:
Relatives can agree to donate a loved one’s tissue, but they cannot demand access to that tissue for themselves. The reasons for this are straightforward. Human tissues and organs are valuable commodities. This means that the bodies of dead and dying patients are vulnerable to exploitation. If the person testifying as to the patient’s wishes and providing proxy consent is alsothe one who stands to gain from the tissue that is made available, there is a clear conflict of interest.
The desire for offspring is not sufficient reason. From a woman’s ardent desire for a child one cannot infer consent. “Couples’ reproductive decisions are not necessarily based on symmetrical and equally held desires … It is risky and unjust to assume that one partner’s reproductive desires can be inferred from those of the other. And if this is the case in the living, it is still more so in the case of the dead or dying, who cannot articulate their dissent.”
Smajdor makes two specific recommendations. First, that the rules for posthumous gamete donation be tightened. Second, that the discretionary authority of the UK’s fertility watchdog, the Human Fertilisation and Embryology Authority, be rescinded so that it cannot permit the export of gametes obtained without consent.
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