SECURING POSTERITY: THE RIGHT TO POSTMORTEM GRANDPARENTHOOD AND THE PROBLEM FOR LAW.

Author:Gan-Or, Nofar Yakovi
 
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INTRODUCTION

On November 27, 2013, a baby girl came into the world. After she was weighed and thoroughly wrapped, the nurses handed her to her grandmother, standing just steps away. Minutes later, the baby was introduced to the rest of her father's family. This happy scene took place eleven years after her nineteen-year-old father was killed by a sniper during his military service. (1) Following his death, his parents had posted an advertisement in a newspaper that led them to the woman, chosen over 200 other applicants, who eventually carried and gave birth to their granddaughter that November day. (2)

In December 2015, another middle-aged couple made their way to the hospital to meet their granddaughter for the first time. It had taken them four years since their son died of cancer to find the woman they thought should bear their future grandchild. (3) After almost three years of failed in vitro fertilization (IVF) attempts, they finally became grandparents for the third time.

And on December 25, 2016, two other women entered a hospital delivery room together: a bereaved mother, who fifteen years before lost her twenty-five-year-old son during a military operation, and the woman she chose to give birth to her granddaughter. The two women were holding hands and breathing together throughout the labor. Upon birth, the baby was named after her deceased father, whom neither she nor her birth mother would ever meet. (4)

These are the reproductive stories of some of the many families that are being formed these days with the help of assisted reproductive technologies (ART). Common to all these newly-formed families is a decision made by the parents of a deceased man (5) to use their son's sperm in order to bring a grandchild into the world--after his death. This novel practice, known as postmortem grandparenthood (PMG), is at the center of this article. It is the latest development in the general practice of postmortem reproduction (PMR), a term used to describe a variety of circumstances under which gametes of deceased persons are used for reproduction. (6)

The normative discourse over the moral, ethical, and legal issues raised by postmortem reproduction in its various forms has until now largely focused on the interests and rights of the deceased man (the future genetic father) as the primary stakeholder in this reproductive practice. Specifically, concerns about acting against his wishes regarding the postmortem use of his genetic materials--wishes that in most cases remain unknown--are central to almost every debate over the regulation of PMR. (7) These concerns raise separate and complex questions about both the retrieval of the sperm from the decedent and its subsequent use for the purpose of conceiving a child. The rights at stake are argued to include the rights to dignity, individual autonomy, and procreation. (8) A second principal stakeholder identified in the normative discourse over PMR is the spouse, understood to have an interest in reproducing with the deceased man, and to proceed with their joint reproductive project. Finally, there is the future child, whose emotional, psychological, and physical well-being are considered to be at stake if brought into the world under such circumstances.

As for postmortem grandparenthood, the prevailing normative view has been that bereaved parents should have no say when it comes to postmortem reproduction, and that their desires do not "give them any ethical claim to their child's gametes." (9) Although this normative stance has persisted over the years, in more and more cases of PMG, parents are successfully claiming the right to use their dead child's sperm in order to become grandparents. (10)

The purpose of this article is to begin conceptualizing the interests and motivations of bereaved parents, or would-be grandparents, who wish to produce a grandchild following the death of an adult son. It argues that two characteristics of this reproductive practice--the experience of loss that precedes it and the familial relationship that lies between its consumers (the would-be grandparents) and its subjects (the deceased sons)--provide the social context in which parents' personal motivations to pursue PMG can be understood.

Drawing on death studies, this article considers how PMG may facilitate the bereavement process by providing emotional comfort to parents who engage with it. PMG appeals to bereaved persons who wish to maintain a bond with the deceased and hope for continuity, in this case, through the form of a genetically-related grandchild. Focusing on the perspective and experience of bereaved parents, this analysis also accounts for ways in which producing genetic progeny is conceptualized by those pursuing it as a commemorative act. As part of this narrative, fatherhood is put forward as the deceased's long-standing wish and a key feature of his personality, and PMG as the only way to make this wish come true.

Moving beyond the context of loss, this article argues that bereaved parents' motivation in pursuing PMG is also embedded in their perception of their parental role. Bereaved parents in pursuit of PMG claim to have both knowledge of their child's reproductive preferences and the decisional authority to act based on this knowledge. In doing so, they challenge traditional notions about the role of parents in their adult children's reproductive lives, which would otherwise exclude them from dictating the use of their child's sperm.

A second purpose of this article is to consider the legal implications of allowing the practice of PMG to develop. The interests and rights of PMR's direct stakeholders, i.e., the deceased, his spouse, assuming there is one, and the future child, are certainly at stake in PMG--for example, when the deceased did not give his consent to such use or when the spouse objects to it. Yet there are other broader implications for this reproductive practice. These mostly overlooked legal concerns regard the practical consequences of this type of interaction between law and reproduction, and the theoretical consequences of using PMG's potentially therapeutic effect on bereaved parents as grounds for judicial decision making or as legislative objectives.

Finally, in countries where PMR is still unregulated by law, courts and/or individual physicians have been on the front lines of this reproductive practice. This exploration may inform their decisions, as well as those of legislators and policy makers contemplating the regulation of PMR, by providing theoretical and practical insights into postmortem grandparenthood as an underexplored, but increasingly pursued, use of ART.

This article proceeds in three parts. Part I provides the necessary background on PMR, its emergence as a technologically feasible reproductive practice, and its biological and legal basics. This overview is followed by a brief discussion outlining the interests of PMR's direct stakeholders. This section focuses particularly on the United States and Israel, two countries that are often regarded as "possessing two of the most ART-friendly environments in the world.... [They] stand at the epicenter of fertility-related research and practice and support the supply and demand sides of the ART market with avidity." (11) They therefore provide for a number of valuable case studies, specifically regarding the use of PMG, which I draw from throughout my analysis.

Part II begins by presenting the scenarios under which postmortem grandparenthood is commonly practiced and the challenges each scenario entails for those pursuing it. In light of these challenges, I offer three ways to conceptualize PMG. First, I show that both the critical timing in which parents must decide whether to pursue PMG and the emotional needs it gratifies suggest that PMG operates as a bereavement practice. Second, I consider these parents' efforts to conceptualize PMG as a work of legacy and how such an effort might also be viewed as part of the bereaved parents' process for managing loss. Third, I suggest that PMG may be conceptualized as an exercise of parental authority.

Part III introduces three concerns over the development of PMG as a reproductive practice. The first concern regards the way parents' bereavement is used to justify a court's ruling in their favor while raising questions about the desired limits of such compassionate uses of law. The second concern regards the prescriptive implications of legalizing PMG. Here, I analogize it with another reproductive practice that has gained a foothold in American law--Stillborn Birth Certificates, similarly understood to be tied in with a parent's bereavement process. The third concern addresses potential conflicts that may arise from the bereaved parents' attempt to claim greater involvement in their grandchild's life by virtue of their role in orchestrating her birth, and the challenges these conflicts pose for the law.

  1. Postmortem Reproduction 101

    1. The Biological Basics

      Postmortem reproduction refers to "the process of conceiving children using the gametes of men and women who are dead or in a vegetative state" (12) by "fertilizing the gametes of the dead person in order to produce a child." (13)

      Most cases of PMR begin with another procedure that has been available since 1980, (14) postmortem sperm retrieval (PMSR). In this process, "the sperm is surgically removed from the testes" of a deceased person and "then preserved in nitrogen vapor. In order for the sperm to be viable, it has to be retrieved within twenty-four to thirty-six hours of the man's death." (15) The retrieval procedure is performed by a medical team upon the request of family members, most commonly spouses of the deceased. These medical professionals were the first to confront the ethical and legal questions PMSR raised, which is why an overwhelming amount of the scholarly writing on PMSR, and PMR in general, comes from within the medical community.

      To...

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