Presuming consent to posthumous reproduction.

• Author: Young, Hilary
• Position: Legal and Ethical Implications of Posthumous Reproduction

1. INTRODUCTION II. TERMINOLOGY AND SCOPE A. Posthumous Reproduction B. Presumed Consent to Posthumous Reproduction C. Methodology: An Interests-Based Approach D. Scope III. THE INTERESTS AT STAKE A. Interest of the Posthumous Parent B. The Surviving Parent's Reproductive Interests i. Conceived Preembryos ii. Inability to Reproduce with Anyone Else iii. Expectations and Reliance D. Interests of Family Members E. The Public Interest F. INTERESTS OF THE CHILD IV. BALANCING THE INTERESTS: CAN PRESUMED CONSENT BE JUSTIFIED? V. WHY IS PRESUMED CONSENT (SOMETIMES) JUSTIFIABLE FOR POSTHUMOUS REPRODUCTION WHEN WE HAVE REJECTED IT FOR ORGAN DONATION? A. We Should Presume Consent to Cadaveric Organ Donation B. In Any Event, Posthumous Reproduction is Different VI. CONCLUSION I. INTRODUCTION

   Almost twenty years ago John Robertson made the compelling argument that a claim of autonomy marks the beginning, not the end, of the inquiry into the permissibility of posthumous reproduction. (1) Despite this claim, most scholarly articles dealing with posthumous reproduction assume that the deceased's wishes should be determinative. (2) More specifically, the prevailing view is that people's wish not to procreate posthumously must be respected. (No one argues that a person should be able to force someone to bear his child after he has died.) This view is reflected in Batzer et aPs article, which states: "[Reproductive decisions are so primal that it is imperative to safeguard the deceased's right to determine his own reproductive fate." (3) Similarly, Katheryn Katz asserts that "the importance of the decision to reproduce is of such moment and has such a deeply personal nature that procreative autonomy survives death." (4)

   Further, the implicit and unjustified assumption is that the absence of information about the deceased's prior wishes should be treated as a refusal of consent: that is, refusal should be presumed. This can be inferred from arguments, law and policy that posthumous reproduction should not be permitted without the deceased's prior explicit (or sometimes implied) consent to posthumous reproduction. (5) In the absence of such consent, posthumous reproduction should not be allowed. These policies and scholarship implicitly rely on the following view: people have a sufficient interest in not reproducing posthumously to justify not only making their refusal determinative, but also to justify interpreting their silence as refusal.

   This article starts from the premise that this is too simplistic a view. The interests at stake in posthumous reproduction vary considerably depending on a number of variables such as whether gametes or embryos are at issue, whether posthumous reproduction would require interference with the deceased's body, and whether there is a certain kind of relationship between the deceased and the person who seeks to procreate with him. Thus, where an embryo has been created, for reproductive purposes, the living genetic contributor to that embryo has a greater claim to deciding the fate of that embryo, even against the deceased's prior explicit wishes, than she would have to accessing the deceased's sperm for reproduction against his wishes. (6) Her interest might even be sufficient to justify her right to override the deceased contributor's express refusal to reproduce posthumously.

   My goal, however, is not to argue that individuals should have no power to veto posthumous reproduction where preembryos are concerned--I leave that issue for another day. Rather, I examine the interests at stake and conclude that presuming consent to some kinds of posthumous reproduction sufficiently protects individuals' interest in reproducing (or not reproducing) posthumously while better protecting the interests of the surviving parent than a model of presumed refusal does. Those who do not wish to reproduce posthumously may avoid that outcome while not unduly limiting surviving partners' ability to reproduce with their partner of choice.

   I begin by explaining what presuming consent to posthumous reproduction would mean, then justify a presumed consent policy in some circumstances by considering the relevant interests at stake. Specifically, I distinguish between a person's interest, while alive, in not being made a genetic parent after his death, and a dead person's interest in not being made a genetic parent. I then examine the nature of the surviving partner's interest in reproducing with her deceased partner. Each of these interests varies depending on the type of posthumous reproduction at stake. For example, all things being equal, reproduction involving interferences with a corpse are harder to justify on the basis of presumed consent than those that do not. Similarly, presuming consent to posthumous reproduction where the genetic parents were long-term romantic partners is easier to justify than if the genetic parents were strangers. Finally, since presumed consent is often discussed in the context of organ donation and is controversial in that context, I compare the situation of presumed consent to posthumous reproduction to presumed consent to organ donation. I demonstrate that there are important differences, such that even if presumed consent to organ donation should be rejected, that does not mean that presumed consent should be rejected in the context of posthumous reproduction.

2. TERMINOLOGY AND SCOPE

   1. Posthumous Reproduction

      Posthumous reproduction is the birth of a baby after the death of at least one genetic parent. However, we may exclude the age-old situation in which a child is conceived through sexual intercourse, but where the father dies before his child is born. That scenario raises no new moral or legal issues. I consider posthumous reproduction to include maintaining pregnant women on life support to allow a fetus to continue gestating, implanting cryopreserved preembryos after one genetic parent's death, and using a deceased person's gametes (sperm or ova) to conceive after death. This last example could involve previously stored gametes or removing gametes from the recently deceased.

   2. Presumed Consent to Posthumous Reproduction

      As in the organ donation context, a policy of presumed consent to posthumous reproduction would permit an individual to opt out of posthumous reproduction. However, in the absence of a refusal in some recognized form, individuals would be presumed to have consented to posthumous reproduction, and that reproduction would be permitted on the basis of that presumed consent.

      A refusal could take a range of forms. Individuals could opt out explicitly, by signing a contract or other sufficiently reliable document declaring a desire not to be made a posthumous parent. Such contractual terms already exist in most agreements for storing preembryos. (7) Alternately, an expressed desire not to be made a posthumous parent might be respected, despite its not being reduced to writing. This would be analogous to anatomical gift legislation that precludes donation, regardless of whether a refusal was registered, if there is evidence that the deceased would not have wanted to be a donor. (8) A further possibility is that implicit refusals of consent might be recognized. For example, a person who had had a vasectomy or who said he thought people should not have children (for environmental reasons, perhaps) might be inferred to refuse consent to being a posthumous parent. For the purposes of this article I am agnostic about what kind of evidence would be sufficient to defeat the presumption of consent. Clearly signing a legal document would suffice, but whether oral or implied refusals should be recognized will not be discussed further.

      It is important to note that presumed consent is a presumption in the legal sense: that is, in the absence of sufficient evidence to rebut the presumption of consent, the law considers there to have been consent. There need not be any affirmative evidence of consent in order to trigger the presumption. Nor need there be any reason to believe that the deceased would have consented had he turned his mind to the question. A presumed consent policy is therefore synonymous with an opt-out policy.

   3. Methodology: An Interests-Based Approach

      In arguing for presumed consent to some kinds of posthumous reproduction, I employ an interests-based approach. That is, I consider the interests at stake and balance them to determine the benefits and detriments of presuming consent versus presuming refusal to posthumous reproduction. There are different interests-based theories of rights, but their differences will largely be ignored for the purposes of this article. (9) I focus on what it means for a person to have an interest in events that happen after his own death, since this gets at the crux of the matter: the extent of a person's autonomy interest in posthumous procreation. However, I also discuss the important competing interests of living people, such as the surviving parent, family members and the public at large in whether posthumous reproduction takes place.

   4. Scope

      I assume throughout that posthumous reproduction should be permitted if there is consent. The only issue I discuss is whether and when it is appropriate to presume consent to posthumous reproduction. As a result, I do not deeply engage with issues such as the best interests of the child and what benefits posthumously conceived children should receive. Although these are both extremely important issues at the core of posthumous reproduction policy, they have relatively little bearing on whether consent versus refusal should be presumed. If we consider it not in a child's best interests to be conceived posthumously, then posthumous reproduction should perhaps not be permitted, regardless of whether we presume consent or refusal. Similarly, whether consent is presumed would seem irrelevant to whether posthumously conceived children are entitled to Social Security and other benefits...