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Submission to ACART on Posthumous Reproduction: A review of the current Guidelines

Staff of The Nathaniel Centre

In July 2018 the Advisory Committee on Assisted Reproductive Technology (ACART) sought public feedback on significant policy issues about whether and in what circumstances posthumous reproduction is acceptable. A summary of the Nathaniel Centre’s submission to ACART is printed below.

 

Introductory Comments:

1. A Catholic-Christian approach to the moral/ethical issues associated with posthumous reproduction rests on a number of core values and principles. Those that are particularly relevant to this Consultation Document are listed below in no particular order:

1. Respect for the dead
   The bodies of the dead must be treated with respect and charity. A person’s identity is always an embodied one and respect for a person involves respect for their bodies, something which holds true in both life and in death.

   While enduring respect for a deceased person includes the duty to uphold their previously expressed wishes, this does not mean acceding to all their wishes. Just as a person’s wishes are not treated as absolute in life but remain subject to the considerations of others, including the common good of society, so the wishes of a deceased person must be weighed up against the demands and impacts on others.
   

2. Unconditional respect for human life at all stages of its development
   Catholic teaching holds that, without exception, the living embryo has, from the moment of fertilisation, an absolute right to life. A unique human life is begun - it is already the human being it will always be and will only grow in size and complexity. On that basis, all embryos are entitled to be treated with the same respect as persons and each has its own ‘intrinsic dignity’ which is independent of the wishes and desires of any related adults. By virtue of the fact that embryos already possess an inherent right to life, we submit that the posthumous use of gametes involves different ethical and legal considerations from the posthumous use of embryos.
   

3. The rights and well-being of the child
   This implies a commitment to reflect on the ethical issues from a perspective that actively considers and gives primacy to the rights and well-being of the child that is to be conceived. The voice and interests of children are routinely overshadowed in our society, characterised as it is by a neo-liberal framework which privileges autonomy and, de-facto, privileges the rights and choices of adults, in many cases to the detriment of children.
   

4. Upholding the genetic, gestational and social dimensions of parenting
   Catholic teaching on the transmission of human life reflects a commitment to holding together the genetic, gestational and social dimensions of family and parenting. This commitment is demanded by our status as relational beings. It is also demanded by the nature of parenthood which, we argue, brings with it a responsibility to ‘parent’ a child. Within the Catholic tradition of moral teaching, upholding this principle rules out the use of third parties in assisted reproduction. The posthumous use of gametes involves knowingly disconnecting genetic parenting from social parenting; there is the deliberate conception of a child who will be denied the prospect of ever knowing or being cared for by the deceased mother/father.
   

2. We have argued in previous submissions to ACART that to set out to deliberately deprive children of their genetic or social parent, for the sake and needs of the adults involved, constitutes an injustice to the child concerned. When, as sometimes happens, a man dies after conceiving a child but before that child is born, this is rightly considered a tragic event. While such children can and do grow up well-adjusted, it is ethically speaking quite something else to allow the inherent relational integrity that characterises natural human procreation to be intentionally fractured.
   

3. We have also argued that no-one has an absolute ‘right’ to have a child. To the extent that there is a right to have a child, we would argue that it exists as a ‘negative right’ⁱ rather than a ‘positive right’. The 1994 Report on Assisted Human Reproduction concurs, noting, in addition, that “Any right to found a family must not be seen in proprietary terms. It is not a right to have or own a child, whom many see as a gift.”ⁱⁱ

4. In our considered view, proper respect for the dignity of any child who might be conceived, for the deceased person and for the nature of human procreation precludes the use of posthumous conception. Thus, we oppose posthumous conception in all its forms.

5. We use the term ‘conception’ very carefully and deliberately to reflect what is an important metaphysical distinction between the moral status of embryos and that of gametes (as noted above). In line with our belief that every embryo represents a unique human life already begun, we argue, drawing on an ethic of care, that embryos (presumably created with the consent of a deceased spouse/partner) already possess a right to be implanted by a surviving spouse or partner without the need for further explicit consent.

6. We note that the Consultation Document employs rather loose language in a number of places. For example, n.25 refers to a person having “agreed that in the event of their death they wanted to become a parent.” Philosophically and socially speaking, we would argue that it is nonsensical to speak in such a way given that, in common parlance, parenting implies a commitment to be an active part of the child’s life, something that a deceased person cannot do. At best, a person can only give advance consent to become a ‘biological father or mother’ to a child conceived after their death in the sense of contributing their gametes. The inability of a deceased person to be a parent in the fullest and normal sense of that notion goes to the heart of the issue when considering the implications of posthumous reproduction for the welfare of any child.

7. Posthumous conception is not simply an extension of the normal experience of deciding to have a child made possible by developments in technology. The normal experience of proceeding to have a child involves genetic and social parenting in the case of a male and a female and gestational parenting for the female partner. Thus, posthumous conception is most accurately described as a significant deviation from normal human reproduction, and the legal and ethical processes surrounding such decisions should reflect that, including the need for explicit consent and an external review process.

8. In ethics, attention to language includes recognising that the way in which practices are described shapes one’s ethical analysis of the issue at hand. With respect to assisted human reproduction, the legal issues associated with the storage of gametes and embryos and their use often revert to arguments around ownership and control. We regard this as inadequate for a number of reasons, in particular because a ‘property-based’ approach that leans heavily on rights and consent fails to adequately acknowledge critical relational notions such as attachment and care. These notions are critical because we are dealing with the creation of ‘persons’ whose well-being and identity is intrinsically connected to existential issues that include a sense of belonging and the need to be loved unconditionally.

9. Notwithstanding the foregoing, we understand that the current state of regulations in New Zealand already allows for the posthumous retrieval of gametes for the creation of embryos in a limited number of instances. Accepting this is the case, we wish to emphasise three key points in our submission:

1. There must be explicit consent on the part of the deceased or permanently incapacitated and imminently dying person from whom the gametes are to be retrieved before the case for posthumous conception can even be considered.

2. The well-being of children must be given greater precedence in guidelines concerning the use of posthumous reproduction than is currently evident in the Consultation Document. In line with the first principle in the HART Act, respect for the consent of the deceased or imminently dying person should be independently weighed against concern for the dignity and well-being of the children who will potentially be conceived posthumously. This should be considered by ECART on a case-by-case basis.

3. In line with the principle that the genetic, gestational and social aspects of parenting need to be held together, we submit that case by caseconsideration of the merits ofposthumous conception must be limited to surviving spouses or partners to whom a deceased person was married or in some other type of permanent long-term relationship akin to the committed nature of marriage.

 

Autonomy and Reproductive Choices:

10. Belinda Bennettⁱⁱⁱ has argued for autonomy to be seen as “in connections and relationships with others” (p. 300). She further argues for autonomy to be understood to mean “self-governing moral agency, rather than independent or self-contained decision-making. Self-governing in an ethic of care does not mean governing alone by abstract reasoning and distant observations, but means choosing options with respect to responsibilities, relationships, conversations, and dialogues with others”.^iv

11. In Bennett’s words, individualised autonomy “provides us with [nothing] other than a basis for competing rights which must then be mediated with reference to some other principle”.^v Accepting her ‘ethic of care’ model for autonomy enables a more adequate consideration of the relational aspects of posthumous reproduction. Then it can be seen that “… posthumous reproduction changes the shape of the deceased individual’s life and the relationships of that individual with others.”^vi

12. There are justifiable limits to carrying out a person’s wishes after their death. Because the conception of a child rightly takes place within a relationship, there must be willingness and consent on the part of both partners (‘gamete providers’). Thus, even if explicit written consent exists on the part of the deceased person for their gametes to be used for posthumous reproduction, no-one would argue that the surviving partner has no choice in the matter.

13. In considering the merits of posthumous reproduction, an ethic of care demands that the wishes of the adults involved must always be balanced by what is in the best interests of the child being conceived and for whom the ‘gamete providers’ have a duty of care demanded by the commonly accepted understanding of what is involved in responsible parenting. As Atkin and Reid noted in 1994: “… individual [adult] rights can be limited when the aim is to protect important societal interests … that different people’s rights overlap, that rights are subject to various limitations ...”.^vii Our analysis of the Consultation Document is that the ‘responses options’ defaults to a narrow legal framework focusing on the need for ‘consent’ and ‘authorisation’, and ultimately fails to give adequate recognition to the well-being of any future children. As Atkin and Reid argue: “… an ethic of care holds, broadly speaking, that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests … the priority … is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community.”^viii

14. There is, in other words, a need for a consideration of issues that goes wider than ‘consent’ and ‘authorisation’.

15. The obvious benefits of collecting and using gametes from a deceased person for their family or partner, and the less obvious and tenuous nature of the philosophically thin arguments that the conception of a child ‘after death’ is potentially in the interests of the deceased gamete provider, mean that the starting point for each and every such case should involve a hermeneutic of suspicion. What is required is a careful deliberation that takes into account a range of factors concerning not just the decedent’s wishes. For this reason, we argue that each and every case for posthumous conception can only be properly investigated by an accredited ethics committee such as ECART.

16. There would also need to be separate consideration of the legal status and inheritance rights as well as the possible psychological impact on any child-to-be conceived and on other family members, including other children.

 

Consent:

17. The notion of ‘consent’ in the case of posthumous reproduction is complex. The fact that a person wanted to have children is not a clear indication of their wish to have a child after they have died.

18. Therefore, it must never be presumed that consent given by a person to have their gametes stored while undergoing treatment, in the hope they could still become a parent at some time in the future, i.e. post-treatment, implies a consent to have their gametes used to have a child in a situation when they can never parent that child.

19. The consent process and forms used by Fertility Providers must be very specific in this regard. Even then, it is arguably very difficult to anticipate a situation where one does not survive and to make a truly informed decision that one’s gametes can be used posthumously to conceive a child.

20. Accordingly, regarding the question of inferred consent, we reject the adequacy of ‘substituted judgement’ on behalf of a deceased person (Consultation Document, n. 99). We admit that this could (unfairly) rule out some cases where a person might well have wanted their gametes to be used by their partner in order to conceive a child posthumously. However, as Bennett notes: “… it is difficult to see why it is any more fair to presume consent on the part of those who have contemplated posthumous conception but who decided against it while omitting to record their objections for posterity.”^ix

21. We are aware that New Zealand guidelines allow for families to give consent to the posthumous removal and donation of organs from a loved one in the absence of explicit consent. We also note that analogies are sometimes drawn between posthumous retrieval of gametes for reproduction and the posthumous donation of organs as an argument in support of substituted consent. However, we consider that there are significant differences between the two situations which ultimately override any similarities, differences that are grounded, once again, in the very different outcomes sought – one being “life-sustaining” for one or more anonymous recipients and the other “life-creating”.

22. Orr and Siegler offer a valuable insight into the difference between posthumous organ donation and the retrieval and use of posthumous gametes:

In our view, there is a difference in kind between autopsy and organ retrieval on the one hand, and sperm retrieval. Giving consent for autopsy or for organ retrieval for transplantation is giving to benefit others. But requesting sperm retrieval after death without the consent of the dead man is not the same; in fact it is not giving at all—it is instead taking, because its aim is to benefit the person making the request. While retrieval of organs after death without the explicit consent of the decedent is likewise taking, it is different in that the family who is giving consent is altruistically giving the organs for someone else’s benefit. The parents or woman who request sperm retrieval after death without the explicit consent of the dead man are making a request for their own benefit. Thus, proxy “consent” in this situation is not consent at all.^x

23. As the Consultation Document itself notes with reference to the Code of Health and Disability Services Consumers’ Rights: “It is not legally permissible to carry out procedures on … people just because those procedures will benefit someone else” (n. 19). This principle, closely aligned as it is with the notion of informed consent, underpins the whole approach to healthcare and research in New Zealand.

24. Consent from both partners is also consistent with viewing children as a ‘gift’ rather than a ‘right’. That being so, then the means used to conceive a child must be synonymous with a gifting paradigm. This in turn means that human conception must be an intentional act by both parties, something that is best measured by the presence of explicit consent.
    

25. While explicit consent for one’s gametes to be used by a surviving partner for the purposes of conceiving a child is a sine qua non, it is not of itself adequate for the purposes of assessing the merits of posthumous conception. We submit that every application for posthumous conception must, in addition be subject to independent consideration by the ECART Committee which can then reflect on and review the broader range of issues that are of relevance from a perspective that favours a care-based guardianship approach (which gives primacy to the best interests of children) rather than a property-based ownership/rights approach.^xi

     

Best interests of children:

26. The Consultation Document asks for responses on the issues of: consent, authorisation for removal of gametes or tissue, the best interests of the deceased, who should be permitted to use the material, and ethics review. This is entirely ‘adult-centred’ and does not consider the impact of a posthumous reproduction policy on the position of children in our society.
    

27. While it is difficult to consider the ‘rights’ or ‘dignity’ of a child who would not be born but for the posthumous use and/or retrieval of gametes, it is nevertheless possible to consider the rights and dignity of children in general when considering policies that govern these practices.
    

28. We note the Document discusses the particular effects on the ‘resulting child’, such as inheritance rights or the potential negative effects on the child depending on the motivations of the parents. However, there is a broader effect on ‘children in general’ of prioritising the ‘rights’ of a parent to create a child using posthumous gametes, that is not adequately considered.
    

29. Posthumous reproduction potentially springs from and supports a view of children as desired ‘products’, that can satisfy the wishes and needs of a surviving parent, and even a deceased parent.
    

30. This positioning of the child as a ‘desired product’ for the parent/s not only contravenes the spirit of the Universal Declaration of Human Rights but also contravenes Article 3 of the United Nations Convention on the Rights of the Child: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.^xii
    

31. The Consultation Document (p.14) refers to research that indicates outcomes for children created from material retrieved posthumously “are not different from a child produced by other assisted reproductive technologies”. However, the paper cited discussed only four cases and focuses particularly on physical health. There is no evidence presented, positive or otherwise, of the psychological or emotional outcomes for children once they become aware of their origins and have reached an age where this is likely to be of significance to them.
    

32. As we stated in our submission to ACART on Proposed Donation Guidelines: for family gamete donation, embryo donation, use of donated eggs with donated sperm and surrogacy, “the rejection of certain means and situations for conceiving human life, … is most correctly viewed as the logical and ethical consequence of a positive and intentional commitment to the optimal flourishing of children.”

33. We recognise that parents routinely choose to have children for their own reasons and without the broader oversight of an ethics committee. However, given our argument that posthumous conception is a deviation from natural conception rather than simply an extension of it, we believe such scrutiny is warranted. Policies on posthumous reproduction must take account of the broader implications or ‘unintended consequences’ beyond the desires of intending parents.

     

Conclusion: Posthumous conception represents a significant deviation from normal human reproduction. To speak of a deceased person becoming a ‘parent’ has a qualitatively different meaning from ‘parenting’ understood in the normal sense, which implies the ability and willingness to enter into an ongoing relationship of care. The legal and ethical processes surrounding posthumous reproduction should reflect that fact, including the need for explicit consent and a case-by-case external review process.

We oppose posthumous conception in all its forms on the basis that it is precluded by proper respect for the dignity of any child who might be conceived, for the deceased person and for the nature of human procreation.

Staff of The Nathaniel Centre September 2018.