Consent to sperm retrieval and insemination after death or persistent vegetative state.

• Author: Strong, Carson

1. INTRODUCTION

   Removal of sperm from a man's body after death was first reported in 1980, in a case involving a 30-year-old man who died following a motor vehicle accident and whose family requested that his sperm be extracted and frozen. (2) Since that time, more than ninety cases have been reported in which family members requested sperm retrieval from men who died (3) or entered a persistent vegetative state (4) (PVS), for the purpose of artificially inseminating a wife, girlfriend, or other woman. (5) Several medical techniques for retrieving sperm have been described. (6) In at least one case, such retrieval and insemination resulted in pregnancy and childbirth. (7) Media coverage of this birth has raised public awareness of such sperm retrieval, and additional requests for it in the future seem likely. Although sperm retrieval could be performed for nonprocreative purposes, such as medical research, this paper focuses on cases in which the intent is procreative.

   In these cases, death or PVS typically is caused by sudden illnesses, such as head trauma, rapidly-progressing infections, or asphyxiation. Because the illnesses are unanticipated, a typical feature of these cases has been the absence of the man's prior consent to sperm retrieval and artificial insemination. Despite the lack of such consent, sperm has been extracted in a number of cases in which requests have been made. (8) Thus, these situations raise a number of ethical issues: Should procreation by means of sperm retrieval and artificial insemination after death or PVS be allowed? If so, is the man's consent ethically required? Should we value the freedom of wives or others to have sperm retrieved in these circumstances? In addition, a number of legal issues arise: What is the legal status of a man's prior consent to sperm retrieval and insemination after death or PVS? What is the legal status of consent by the spouse or other next of kin for such procedures? Should the man's consent to sperm retrieval and insemination after death or PVS be legally required?

   Although a number of additional legal questions can be raised, including issues of paternity and inheritance, this paper focuses on the legal issues pertaining to consent, as well as the ethical questions raised above, which need to be discussed in order to address adequately the legal consent issues. The paper is organized as follows: first, the current law of consent to sperm retrieval and insemination after death or PVS is discussed in order to identify gaps in the law--areas that the law does not address or concerning which it is unclear; second, ethical issues are discussed that are relevant to deciding what the law should be; and third, based on the analysis of ethical issues, legal approaches are proposed that attempt to fill the gaps identified.

   We shall see that the law of consent differs in some respects, depending on whether a patient is alive or dead. Because patients in PVS are legally alive, (9) it will be necessary to consider separately cases involving PVS and those involving death. Specifically, Part II examines the current legal status of consent to retrieval and insemination in cases involving patients in PVS. Part III explores the current legal status of consent to retrieve sperm from dead patients. Part IV discusses the current law of consent in regard to artificial insemination using the sperm of dead patients. Part V puts forward and defends views concerning several ethical questions, including the following: Should sperm retrieval and insemination following death or PVS be permitted? Is the man's consent necessary? Part VI sets forth proposed legal approaches to cases involving patients in PVS, and Part VII states proposed legal approaches for cases involving dead patients.

2. THE LEGAL STATUS OF CONSENT TO SPERM RETRIEVAL AND INSEMINATION IN CASES OF PERSISTENT VEGETATIVE STATE

   An analysis of the current law of consent, as applied to sperm extraction and insemination in PVS cases, can be divided into three areas: statutory law; the common law of consent to medical treatment; and the right to consent to (or refuse) medical treatment implied by the constitutional right to privacy.

   Two types of statutes might initially seem to be relevant to the consent situation in question: laws that establish the legal validity of Living Wills; and laws that establish Durable Power of Attorney for Health Care (DPAHC). These statutes establish two types of advance directives that enable patients to express their wishes concerning medical treatment in the event they become mentally incompetent to participate in decisions. Living Wills allow patients to specify those life-sustaining medical procedures they would want provided and those they would want withheld, should they become terminally ill. (10) A signed and valid living will constitutes evidence of a patient's wishes, and it provides a legal basis for physicians to withhold or withdraw treatment in accordance with those wishes. DPAHC enables patients to appoint persons legally authorized to make decisions for them concerning medical treatment when the patients become mentally incompetent. (11) The consent to (or refusal of) medical treatment by such a surrogate is legally valid when given in accordance with statutes establishing DPAHC.

   However, the wording of these statutes restricts the range of situations in which they are applicable. Living Will statutes usually are worded to apply specifically to decisions about life-preserving treatment. For example, the Uniform Rights of the Terminally Ill Act, which is the model act for living wills, is restricted in this manner, as explained in the Act's prefatory note:

   The Rights of the Terminally Ill Act authorizes an adult person to control decisions regarding administration of life-preserving treatment in the event the person is in a terminal condition and is unable to participate in medical treatment decisions. As the preceding sentence indicates, the scope of the Act is narrow ... It's impact is limited to treatment that is merely life-prolonging ... Beyond its narrow scope, the Act is not intended to affect any existing rights and responsibilities of persons to make medical treatment decisions. (12) Although DPAHC statutes usually are not restricted to decisions about life-preserving treatment, typically they are limited to decisions about treatment and diagnostic procedures. (13) For example, the person appointed to act on the patient's behalf (the attorney-in-fact) might be authorized by statute to make health care decisions, where "health care" is defined in the statute as "any care, treatment, service, or procedure to maintain, diagnose, or treat an individual's physical or mental condition." (14) Removing sperm in order to inseminate the wife is not a diagnostic procedure, and it is not treatment for the man in PVS. Because of their wording, Living Will and DPAHC statutes cannot reasonably be interpreted as applying to sperm retrieval or artificial insemination.

   It might be asked whether the more general Durable Power of Attorney (DPA) statutes could be used to create an authority to consent to sperm retrieval and insemination after PVS. After all, courts have recognized DPA statutes as a device for appointing surrogate decision makers for health care. (15) In reply, we should keep in mind a precept of the law of agency, according to which an agent cannot do what the principal is not authorized to do. (16) A question that needs to be explored is whether a patient is authorized under current law to consent (in advance) to sperm retrieval and insemination after onset of PVS. This will be discussed in the following sections.

   1. Common Law of Informed Consent and Advance Directives

      In addition to advance directives that are given validity by statute, advance directives are recognized in common law. These nonstatutory advance directives generally fall into two categories: living wills executed by patients in states that lack living will statutes; and conversations between patients and others, in which patients express their wishes concerning future treatment. (17) The basis of these nonstatutory directives is the common law doctrine of informed consent, which recognizes the right of mentally competent persons to decide what medical procedures will be performed upon their bodies. (18) As stated by Justice Cardozo, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." (19) Courts have recognized that a logical corollary of the right to informed consent is the right to refuse treatment. (20) Moreover, courts have held that the onset of mental incompetence does not negate a person's interest in refusing medical treatment. (21) Thus, a number of courts have held that life-preserving medical treatment may be withheld or withdrawn from mentally incompetent patients when there is sufficient evidence, in the form of written or verbal statements by the patient when previously competent, that such withholding is in accordance with the patient's wishes. (22) In light of these rulings, the American Medical Association has recommended that requests by competent patients not to receive life-prolonging treatment in the event they enter a terminal state be documented in the patient's chart. (23)

      Although prior verbal or written statements by patients have provided the basis for medical decisions under the informed consent doctrine, one should note the limited range of factual situations in which courts have applied such advance directives. Virtually all the cases have involved decisions about withholding or withdrawing life-prolonging treatment for patients who were terminally ill or in PVS. No court has been asked to rule on whether advance directives are applicable to sperm retrieval or insemination...