FILLING&THE&VOID:&AN&ANALYSIS&OF&THEÐICSOF&POSTMORTEM&AND...
Transcript of FILLING&THE&VOID:&AN&ANALYSIS&OF&THEÐICSOF&POSTMORTEM&AND...
FILLING THE VOID: AN ANALYSIS OF THE ETHICS OF POSTMORTEM AND PERSISTENT VEGETATIVE STATE GAMETE RETRIEVALS
BY
T.J. HOOKER
A Thesis Submitted to the Graduate Faculty of
WAKE FOREST UNIVERSITY GRADUATE SCHOOL OF ARTS AND SCIENCES
in Partial Fulfillment of the Requirements
for the Degree of
MASTER OF ARTS
Bioethics
December 2012
Winston-‐Salem, North Carolina
Approved By:
Nancy King, J.D., Advisor
John Moskop, Ph.D., Chair
Liz Johnson, J.D., M.L.S.
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DEDICATION
I would like to dedicate this thesis to my wife. Without her loving support, I
would never have written a word.
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ACKNOWLEDGMENTS
First and foremost, I would like to thank my advisor Nancy King for her
patience, support, wisdom, and knowledge. She has been my candle in the darkness.
I cannot thank her enough. Second, I would like to thank both John Moskop and Liz
Johnson. Both have supported me tremendously over the years and have influenced
my thesis.
Also, I would like to thank the following: everyone at Wake Forest Center for
Bioethics, Health, and Society, Michael Hyde, Ana Iltis, Jay Foster, Louise Winstanly,
Pat Corn, Brad Tharpe, and Angie Hobbs. All of these people have encouraged me to
become a better student and writer.
Finally, I would like to thank my wife and my family for their support. They
have always been there for me and have encouraged me to finish what I start.
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TABLE OF CONTENTS
Abstract v
Introduction vi
Chapter 1 Initial PMGR and PVSGR Distinctions and Concerns 1
Chapter 2 Ethical Considerations 12
Chapter 3 Legal Considerations 38
Chapter 4 Social Policy and Practical Considerations 48
Chapter 5 Hospital PMGR and PVSGR Policies 57
Chapter 6 Alternatives To Hospital Policy 78
Conclusion 84
References 87
Appendix I Table of Hospital Exclusionary Criteria 93
Curriculum Vitae 95
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ABSTRACT In 1978, Dr. Cappy Rothman performed the world's first postmortem gamete
retrieval. Since this time, postmortem gamete requests and retrievals have been
increasing. Due to the lack of both regulation and professional guidance, hospitals
have begun implementing their own Postmortem Gamete Retrieval (PMGR) and
Persistent Vegetative State Gamete Retrieval (PVSGR) policies.
This thesis addresses the difficult ethical, legal, social policy, and practical
concerns arising from PMGR and PVSGR. In the first chapter, PMGR and PVSGR are
introduced. In the second, third, and fourth chapters the ethical, legal, social, and
practical concerns are identified. This thesis argues that the basic right to reproduce
may extend to procreating after death or in PVS. The key ethical consideration is the
reproductive autonomy of the deceased or PVS patient and the type of consent
needed to protect the patient's autonomy. This autonomy can only be sufficiently
protected by requiring the patient's pre-‐mortem or pre-‐PVS written explicit consent
for PMGR and PVSGR. Therefore, hospital PMGR and PVSGR policies should not
honor surrogate decision maker's gamete retrieval requests unless they have the
patient's explicit written consent. In the fifth chapter, this thesis compares the
similarities and differences between various hospital PMGR and PVSGR policies and
approaches. The chapter concludes with an analysis of key concerns that hospital
PMGR and PVSGR policies must address. This thesis in the sixth chapter presents
alternative ways that PMGR and PVSGR can be regulated and identifies potential
problems these alternatives may cause.
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INTRODUCTION
Developing ways to ensure the survival of one's own legacy past death has
occupied the minds of physicians, attorneys, politicians, and people worldwide for
centuries. We have enacted laws to control and disseminate our possessions after
our death. We use medicine to increase our longevity. However, despite these
efforts, death still looms with a finality that is often hard to accept. Possibly in an
attempt to accept death, we have developed new ways to ensure our genetic
survival after death. Although procreation after death has only recently become
medically possible, the thought has occupied minds of many throughout history. In
1866, Paolo Montegazza, the Italian professor and scientist who discovered that
sperm could be frozen, quite prophetically envisioned a world where "a husband
who has died on a battle-‐field could [impregnate] his own wife after he has been
reduced to a corpse and produce legitimate children after his death."1 It is doubtful
that Monetgazza could have anticipated how far we would expand on his idea of
procreating after death, much less the complex issues that would arise from his idea.
In 1790, a Scottish anatomist and surgeon, Dr. John Hunter, reported that he
had successfully retrieved a husband's sperm and impregnated the husband's wife
using the sperm.2 For over a century, there were no other reported cases of sperm
retrieval and inseminations. Then, in 1884, Dr. William Pancoast performed the first
human donor insemination at the Jefferson Medical College in Philadelphia.
However, freezing the retrieved sperm, while maintaining viability, did not become 1 Clarke, 2006, at 1649. 2 Fader.
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a possibility until 1949. The first successful human pregnancy with frozen sperm
was reported in 1953.
In the 1970's, Doctors Cappy Rothman, a male fertility specialist and
urologist, and Charles Sims, a pathologist, were looking to provide a way to lessen
the traumatic effect sterilization, resulting from cancer treatment, has on men. Both
men believed that a man's loss of his ability to continue his family name often
triggers crisis in his identity and negatively impacts his self-‐esteem. They
recognized sperm retrieval and cryogenic preservation as a solution to this crisis
and, in 1977, opened a sperm bank in California.
From 1949 to 1977, gamete retrievals were only requested by and
performed on males anticipating their own infertility or death. However, in 1978, a
new possibility emerged when Dr. Rothman received a unique request from the
family of a 30-‐year old brain dead patient: they wanted Dr. Rothman to preserve the
dead man's sperm. Dr. Rothman honored the family's request and performed the
world's first successful post-‐mortem gamete retrieval. But Dr. Rothman was not
done.
From 1978 to 1994, Dr. Rothman alone performed post-‐mortem gamete
retrievals on at least a dozen men.3 The sperm retrieved from these deceased
patients "were of poor quality."4 So "the families simply [kept] the sperm as a
memento, rather than [using] it."5 This changed in 1995, when Gabrielle Vernoff
3 Arthur, 1998. 4 Rothman, 1999. 5 Arthur, 1998.
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asked Dr. Rothman to retrieve her dead husband's sperm.6 The sperm was retrieved
and promptly cryopreserved. Then in 1998, Gabrielle Vernoff used the sperm to
become pregnant. In 1999, her daughter, Brandalynn Vernoff, became the first U.S.
child born using sperm retrieved from a deceased father.7
The impact of Dr. Rothman's discovery cannot be overstated. Since the early
1990's, postmortem gamete retrieval procedures have expanded to include patients
in permanently unconscious states. Also, the procedures can now be performed on
female patients. Dr. Rothman's discovery has created a world where death and
permanent incapacity no longer prevent people from having children; a world
where people's heirs can be born years after their death; a world where spouses and
parents can take the reproductive materials out of their deceased partner's or
child's body and use the materials to create a child. We are now living in a world
where we can cheat death and tragedy by creating life from death and tragedy.
Postmortem gamete retrieval (PMGR) and persistent vegetative state gamete
retrieval (PVSGR) generally refer to surgical procedures where deceased or PVS
patients' gametes are extracted for the purpose of procreation. However, PMGR and
PVSGR extend beyond the surgical procedure. PMGR and PVSGR occur in two
stages.8 In the first stage, patients' gametes are retrieved and stored. In the second
stage, patients' gametes are used to create a child using Assisted Reproductive
Technologies (ART). These two stages are distinct because different specialists
perform the retrieval from those who perform the ART. A third party must request
6 Radford, 2009. 7News Summary, California Baby Born Using Sperm From Dead Father. 8 Personal Communications.
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PMGR or PVSGR. The deceased or PVS patient's spouse, intimate partner, or family
member usually makes these requests.9 Various extraction methods exist, including
surgical excision, irrigation or aspiration, and rectal probe ejaculations.10 These
gametes are then frozen for future use.
From 1980 to 1995, PMGR requests increased only sporadically.11 A 1997
survey of 40 fertility facilities reported that only 82 requests were made during this
15-‐year period.12 Of these 82 requests, more than half were made between 1994
and 1995.13 Only 25 of the 82 PMGR requests were honored.14
Many commentators agree that gamete retrieval procedures are on the rise.15
Increasing public awareness is probably driving the increase of requests. Not only
are more procedures being developed and reported, but also more success stories
are being reported. Headlines intended to “shock the mind” of the reader grab the
attention of people previously unaware that PMGR and PVSGR were medically
possible. 16 Headlines such as “Mother Creates Life After Death” 17 and “The
Sperminator”18 are published in newspapers and are reaching more people. As a
result, more PMGR and PVSGR requests may be on the horizon. Already there is a
growing concern that the procedures have outpaced law and ethics, and that social
boundaries that should not be crossed are being crossed.
9 Brock, 2005, at 269; Kahan, 1999. 10 Strong et al., 2000. 11 Id. 12 Brock, 2005, at 273. 13 Id. 14 Kerr et al., 1997. 15 Brock, 2005. 16 Williams, 2011. 17 James, 2010. 18 Andrews, 1999.
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Although many countries have addressed these concerns by passing laws
limiting or prohibiting PMGR and PVSGR, the United States historically has not
regulated the area of reproductive medicine.19 In addition, there is no professional
universal prohibition of PMGR or PVSGR in the United States. Several guidelines
have been released by medical societies and organizations, but these guidelines lack
specificity, leaving most medical providers and specialists to their own professional
discretion on the matter.20
Quite possibly because of the lack of professional guidelines and the ethical,
legal, societal, and practical complexity of PMGR and PVSGR, hospitals have been
“forced to draft their own rules” on the procedure.21 The result is a patchwork of
different PMGR or PVSGR policies. Also, it is unclear how accurately hospitals track
and monitor their own PMGR and PVSGR requests and their responses.22 Currently,
there are only a few published studies reporting the prevalence of the requests and
how many of the requests are honored. Most of these reports are dated or limited to
a small sample size. At least one commentator has concluded that most of the
requests do not produce children.23 It may be that as few as one out of every five
hundred requests produces children.24
This thesis presents some of the key ethical, legal, social policy, and practical
concerns raised by PMGR and PVSGR procedures. This thesis strongly encourages
hospitals to develop and implement PMGR and PVSGR policies that address the key
19 Bahadur, 2002. 20 James, 2010; Orr, 2002. 21 Williams, 2011, at 182. 22 Personal Communications. 23 Strong et al., 2000; James, 2010; Orr, 2002. 24 James, 2010.
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concerns raised by these procedures.
In this thesis I argue that only the deceased or PVS patient's previous written
explicit consent to PMGR or PVSGR sufficiently protects the interests of that patient.
Therefore, PMGR and PVSGR should not be performed unless the medical team has a
patient's written explicit consent authorizing them to perform the procedure and to
use the retrieved gametes to create a child. I argue that a well drafted hospital PMGR
and PVSGR policy plays a crucial role in regulating, controlling, and defining the
institutional parameters of PMGR and PVSGR. I argue that hospital gamete retrieval
policies addressing the key concerns raised in this thesis are currently better than
two alternatives: legislation and professional medical organizations.
This thesis is divided into six chapters. In Chapter 1, I identify three ways life
can be created after death, analyze the differences between PMGR and PVSGR, and
explain the medical procedures commonly used to retrieve gametes from deceased
or PVS individuals. I also identify some key differences between male and female
gamete retrievals and identify eight individuals or groups who may have an interest
in the procedure.
In Chapter 2, I explain the ethical concerns raised by PMGR and PVSGR. I
start the ethical discussion by asking whether the procedures should ever be
performed. I analyze whether reasons given for creating a child through traditional
methods can also be used to explain why an individual may want to create a child
after death or while in PVS. I then use the bioethics principles of autonomy,
nonmaleficence, and beneficence, as elucidated by Beauchamp and Childress, to
analyze the complex ethical issues raised by PMGR and PVSGR.
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In Chapter 3, I explain how the legal problems associated with PMGR and
PVSGR arise from lack of precedent on the issue. The legal issues may be separated
into those that arise before PMGR and PVSGR and those that arise from the use of
the retrieved gametes. This chapter explains how honoring a PMGR or PVSGR
request can affect inheritance, Social Security survivor benefits, and the legal status
of a posthumously born child.
In Chapter 4, I address the social policy and the practical concerns arising
from PMGR and PVSGR. These policy concerns include respect for the dead and the
welfare of the child. This chapter also discusses how PMGR and PVSGR procedures
are different from organ donation. Finally, practical concerns, such as the need for
institutional consistency and the costs and storage issues created by PMGR and
PVSGR, are addressed.
In Chapter 5, I introduce eleven hospital PMGR and PVSGR policies and
drafts. This chapter analyzes how the selected hospital policies restrict PMGR and
PVSGR procedures. I then analyze whether these hospital policies address the
ethical, legal, social, and practical concerns raised in this thesis.
In Chapter 6, I argue that hospital policies are currently the best way to
address PMGR and PVSGR. I identify some alternatives to hospital policies and
provide arguments for and against these alternatives. I conclude that these
alternatives are currently unable to properly address the concerns arising from
PMGR and PVSGR.
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CHAPTER 1: INITIAL PMGR AND PVSGR DISTINCTIONS AND CONCERNS
The following three hypothetical cases can help illuminate the complex and
often abstract discussion of the ethical, legal, and social issues of PMGR and PVSGR
procedures.
Case 1: Tim and Jane are married. Although they have been married for
several years, they do not have any children. They have only recently felt financially
secure enough to entertain the thought of children. They both intend to draft wills
and advance directives, but can never get around to it. They are organ donors. By
law, Tim and Jane are each other's surrogate decision maker. One day, Tim
tragically suffers a horrific accident and dies in the hospital. Jane is distraught over
losing the love of her life. In her grief Jane tells the nurse that she has no one left in
her life now that Tim is gone. She tells the nurse how Tim wanted to have children
to share the child raising experience with her and to carry on his genes. Jane is
inconsolable now that the possibility of having Tim's child has died with him. The
nurse, wanting to help Jane, mentions one possibility still left open for Jane: The
medical team could retrieve Tim's sperm and Jane could use that sperm to create
Tim's offspring. The nurse tells Jane that time is of the essence because the sperm
can only be retrieved 24 to 36 hours after Tim's death.
Case 2: Tim and Jane’s relationship is the same as in Scenario 1. Instead of
dying in the hospital, however, Tim's accident puts him into a persistent vegetative
state. Although Tim is still alive, he is not conscious. Jane is distraught with grief and
is offered the opportunity to request that Tim's sperm be retrieved.
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Case 3: Tim and Jane's relationship is different than the previous two
scenarios. Here, Tim is nineteen, in college, and not in a relationship. Jane is Tim's
mother. Tim has told Jane that he wants to have kids one day. One night, Tim is
beaten up outside a bar and suffers a traumatic brain injury. He dies shortly after
suffering the injury. Since Tim is Jane's only child, she is inconsolable. Jane requests
the medical team to retrieve her son's sperm to preserve his legacy and help
alleviate her own grief.
In the three hypothetical cases, Jane makes the request believing that Tim
wanted to have children. How should the medical team respond? Some relevant
questions include: Should PMGR and PVSGR ever be performed? Is there some value
in honoring PMGR and PVSGR requests? Should PMGR and PVSGR be handled
differently? What framework is needed to analyze the issues of PMGR and PVSGR?
What does the law tell us about the procedures? Should the hospital have a policy
that guides decisions to honor or deny such requests? What social policies are
involved in the decision? If PMGR and PVSGR are allowed, should the patient's
consent be required? If consent is required, is the patient's explicit written consent
needed? Can the patient's surrogate decision maker consent to the procedure using
either the patient's previous unwritten explicit consent or by using substituted
judgment? Can the medical team rely on the surrogate decision maker if the
surrogate decision maker is related to the deceased or PVS individual? Can the
medical team rely on the surrogate decision maker if he or she is not related to the
patient? Are PMGR and PVSGR different from organ donation and if so, how are the
procedures different? Is grief relief a valid reason to perform the procedures?
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A. How Life Is Created After Death or PVS
To understand the ethical, legal, social, and practical complexities caused by
PMGR and PVSGR it is important to first understand the differences among three
possible life after death and PVS scenarios: post-‐mortem births, post-‐mortem
conception, and post-‐mortem and PVS gamete retrievals.
Post-‐mortem births: The post-‐mortem birth scenario is the most common of
the three scenarios. Post-‐mortem birth is the result of voluntary pre-‐mortem
conception followed by the death of at least one parent before the birth of the
conceived child. Post-‐mortem births have occurred since the beginning of human
existence. Any time a rock crushed the pre-‐historic man and that man left behind a
pregnant partner, the birth of the child is designated as a post-‐mortem birth. War,
disease, and sudden death are all key contributors to post-‐mortem births. Any time
a man goes to war, leaving behind his pregnant partner, there is the possibility that
he will leave behind a child born after his death. Similarly, a man can suddenly die
from disease before he ever sees his child's birth. Although the post-‐mortem birth
scenario is tragic, it does not require much ethical analysis.
Post-‐mortem conception: The post-‐mortem conception scenario is different
from the post-‐mortem birth scenario. Post-‐mortem conception has been occurring
in the U.S. since the 1950's and involves a purposeful act of gamete retrieval and
storage while alive that results in conception after death.25 Post-‐mortem conception
results from pre-‐mortem voluntarily retrieved and stored gametes. The post-‐
25 Gottenger, 1999.
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mortem conception scenario requires individuals to plan for their own infertility or
death and willingly deposit their gametes for safekeeping. Conception then occurs
when the stored gametes are used. For example, most post-‐mortem conception
scenarios occur in cancer treatment situations involving men. Some cancer
treatments leave men sterile. These men may choose to have their sperm
cryogenically frozen to preserve the possibility of having a child in the future,
should they become sterile from the cancer treatment. If the treatment does not
work and the man dies, then his intimate partner, if designated as a recipient of the
stored gametes, might choose to use the man's deposited sperm to conceive a child.
It is worth noting, that this practice is no longer provided only to men, as women
now have the option of freezing their gametes to preserve the possibility of future
children. Also, the post-‐mortem conception analysis can be used to analyze PVS
conception. The main difference is that instead of a child conceived after the
person's death from their stored gametes, a child is born after a person enters PVS
and leaves behind stored gametes.
The key ethical question to ask in the post-‐mortem and PVS scenario is
whether a deceased or PVS person, who leaves behind his or her stored gametes,
wanted or would have wanted his or her gametes to be used to create a PM or PVS
child. To answer this question another one must be asked: Can the willful and
intentional pre-‐mortem or pre-‐PVS act of preserving gametes be construed as intent
to have those gametes used posthumously or while in PVS to create a PM or PVS
child? Most people would probably agree that unless the donor's wishes were
explicitly stated, it is not clear whether the donor intended the gametes to be used
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after his or her death. Individuals wishing to deposit their gametes for later use
often sign contracts that designate the recipients of the deposited gametes. So in PM
and PVS conception situations there is some evidence in writing that strongly
indicates the deceased or PVS patient's desire or prior intent to procreate. Often this
evidence is missing in PM gamete retrieval scenarios.
PM and PVS gamete retrieval: At first glance, PM conception and PM and PVS
retrieval scenarios "seem only a small step apart" because PM and PVS gamete
retrieval scenarios require answering some of the same questions raised by PM
conception.26 However, PM and PVS retrieval scenarios are the most controversial of
the three life after death scenarios.27 In the PM retrieval scenario, there could be
little or no evidence that the individual wanted to procreate, much less considered
the possibility that his or her gametes can be retrieved and used to create a PM or
PVS child.28 In these scenarios, death or PVS often come suddenly and unexpectedly.
The suddenness and unexpectedness of the death or PVS denies the individual the
opportunity to create a will or advance directive indicating how his or her gametes
are to be used.29 The only evidence of the individual's procreative wishes come from
statements he or she made in the past.
26 Orr, 2010, at 299. 27 PVS also needs to be considered in the PM gamete retrieval scenario. 28 The mere fact that a person does not embody his or her wishes in a written document does not necessarily mean that he or she did not consider PMGR and PVSGR. A person can consider PMGR and PVSGR and reject the procedures through their silence, or can have considered and desired these options, but neglected to express that desire. 29 In some situations, such as when individuals are diagnosed with a disease or cancer, the individual may have the opportunity to consider PMGR or PVSGR before dying. They can embody their wishes in a will or an advanced directive. This opportunity is denied to individuals who die suddenly or unexpectedly.
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B. PMGR and PVSGR: Definitions and Differences
An individual who lacks decision-‐making capacity may be the subject of a
gamete retrieval request while in two states: PM30 (right after death) or in a
permanent unconscious state (PVS.) Individuals in PVS are in a condition of
complete unawareness of the self and the environment.31 PVS is a vegetative state
present after acute brain injury (traumatic or non-‐traumatic) or in patients with
degenerative or metabolic disorders or developmental malformations.32
Although there is some evidence that PMGR procedures may be performed
beyond 32 hours after a patient's death, the general consensus is that PMGR must
take place within 24 to 32 hours after death.33 The retrieval time limit is not
applicable in PVSGR situations. The patient may not be at or near death in PVS, so
the patient may continue to live after the procedure has occurred.
C. Key Differences Between Male and Female Gamete Retrievals
A gamete is a cell that fuses with another cell during fertilization and forms a
new organism. So by definition, "gamete" includes the male sperm and female ovum.
PMGR and PVSGR have, to date, only been performed on male patients. However,
30 Some of the literature uses the terms perimortem or postmortem when describing the procedures. I have determined that these two types of gamete retrievals require similar ethical analysis. In perimortem cases the patient is medically determined to be near death. In these cases there is no chance that the patient will recover. So, the sole distinction between perimortem and postmortem is whether there is a difference between retrieving gametes from those that are legally still considered alive and incidents where the patient is dead. Because of this similarity and the reality that surgeons may wait until the patient is deceased before performing the surgery, I have combined the two states into one for ease of ethical and legal analysis. For ease of discussion, I will call this combined category PMGR and will separate the two states only if an important distinction needs to be made. The other category I will refer to as PVSGR. 31 The Multi-‐Society Task Force on PVS, 1994. 32 Id. 33 Shefi, 2006.
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recently it has become medically possible to successfully retrieve viable ova from
female patients. 34 Therefore, discussion about gamete retrievals should also
consider the possibility that a husband may request his deceased wife's ova to be
removed.
There are some key distinctions between male and female gamete retrievals.
These distinctions may require different ethical, legal, societal, and practical
analysis. The first key distinction involves the ease of access to the gametes. Male
sperm are easier to access and not all sperm retrieval procedures require surgery.
In contrast, female ovarian tissue is difficult to access and the retrieval methods
always involve surgery.35 The second key distinction is the difference in viability of
male and female gametes retrieved after death. Male sperm are easier to preserve
because the window of sperm viability after death is larger.36 In contrast, female
ovarian tissue remains viable for only a few hours.37 The third key distinction is that
different medical specialists are needed to perform male and female gamete
retrievals. Typically, urologists perform most male gamete retrievals, while
obstetricians and gynecologists perform most female gamete retrievals.38 Finally,
once gamete retrievals are performed, there may be differences in how pregnancy is
achieved. In male PMGR and PVSGR situations, the retrieved gametes may require a
gestational carrier other than the requestor only if the requestor is unable to carry
34 Brock, 2005. 35 Id. at 271. 36 Id. 37 Id. 38 Id.
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the child or is infertile.39 However, in female PMGR and PVSGR situations, the
requestor, if male, will always require a gestational surrogate for the pregnancy.40
There has, as of yet, been no reported successful PMGR from females.41
However, at least one request has been made and denied.42 A full comparison of the
similarities and differences between male and female gamete retrievals is outside
the scope of this thesis. The following discussion will primarily address the issues
present in male gamete retrievals. The reader only needs to be aware that it is
medically possible to retrieve female ovarian tissue and that that majority of the
following overarching discussion could also be relevant in female PMGR and PVSGR
situations.
D. The Procedures
Sperm can be retrieved from deceased males whose hearts irreversibly stop
beating and from deceased males whose heartbeat and breathing are maintained by
machines but are dead by neurological criteria.43 Ideally, sperm is retrieved from
brain dead individuals within a 24-‐36 hour window from the time of death by
neurological criteria. It may be possible to successfully retrieve sperm up to forty-‐
eight hours after brain death by neurological criteria.44 When a male patient suffers
39 Id. 40 Id. 41 Knaplund, 2012, at 922. 42 Greer, et al., 2010. 43 Strong, 1999. 44 Tash et al., 2003, at 1923.
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irreversible loss of heartbeat, the viability of the sperm decreases. Sperm retrieval
must then occur within 24 hours to obtain viable sperm.45
A variety of procedures exist to obtain sperm from deceased or PVS patients.
When Dr. Rothman conducted the first PMGR procedure, he performed a bilateral
vasoseminal vesiculectomy during a midline incision at the time of organ donor
surgery.46 Sperm has also been retrieved by rectal probe electroejaculation47 and by
orchiectomy.48 Some minimally invasive techniques exist such as: vasal aspiration,
microsurgical epididymal sperm aspiration and testicular sperm extraction.49 The
techniques of vasotomy and vasal aspiration are the preferred treatment because
they are less intrusive to the dead.50 If these methods do not produce enough viable
sperm, then microsurgical epididymal sperm aspiration or testicular sperm
extraction can be used.51 The medical team honoring a PVSGR request must worry
about the impact the gamete retrieval will have on the overall health of the PVS
patient. Therefore, the electroejaculation procedure should always be used on PVS
men because it is the only nonsurgical procedure available and it is less invasive
than the surgical options.52
45 Strong, 1999. 46 Tash et al., 2003, at 1923. 47 Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Brock, 2005, at 272.
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E. Identifying PMGR and PVSGR Interested Parties
In every PMGR and PVSGR request there are at least eight identifiable
individuals or groups whose interests need to be considered: (1) the PVS or recently
deceased patient; (2) the PMGR or PVSGR requestor/recipient; (3) the possible
future child; (4) the medical team caring for the patient; (5) the medical retrieval
team; (6) the team that will later provide assisted reproductive services to the
recipient; (7) the deceased individual's family; and (8) the hospital. Deciding
whether or not to honor a gamete retrieval request requires defining and
considering these interests.
The PVS or deceased individual has an interest in his or her own body and
how his or her body is to be used. I believe that the deceased or PVS individual's
interests are primary and should usually override any competing interest. The
person making the request also has an interest in the gamete process because the
requestor usually has a reproductive interest at stake. The future child has an
interest in the process because the decisions made before the birth of the child may
affect the future interests of that child.53 The deceased or PVS individual's family has
an interest in PMGR and PVSGR because children born one or more years after the
individual's death may affect the individual's family adversely or positively. The
individual's family also may have a moral responsibility to protect the deceased or
PVS individual's interest and wishes.
53 It may be incorrect to say that a child yet to be conceived has an interest in PMGR and PVSGR. In this instance, I use interest only to indicate that the future child needs to be considered when analyzing PMGR and PVSGR.
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The medical care team has an interest in PMGR and PVSGR because they
usually receive PMGR or PVSGR requests. The medical care team is composed of the
attending physicians, surgeons, and nurses who provided pre-‐mortem care of the
recently deceased patient or continue to provide care to the PVS patient. The
medical retrieval team has an interest in PMGR and PVSGR because they are in
charge of performing PMGR or PVSGR. The medical retrieval team is composed of
medical specialists and gamete storage specialists. The ART team has an interest in
the procedure because they will eventually be using the retrieved gametes to assist
in the conception of a PM child. Finally, the hospital has an interest in the retrievals
because the hospital is responsible for providing safe, efficient, and, if feasible,
economically sound services to hospital patients.
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CHAPTER 2: ETHICAL CONSIDERATIONS
In PMGR and PVSGR situations, the medical team must consider the interests
of all parties and make a decision whether to perform PMGR or PVSGR within hours
of receiving a request. However, the ethical issues arising from PMGR and PVSGR
are difficult, especially when hospitals are considering their first PMGR or PVSGR
request. When hospitals are faced with a PMGR or PVSGR request and they have not
considered the ethical issues involved, hospitals risks making "ad hoc decisions that
may result in actions that are not grounded in solid principled reasoning."54
The complexity of ethics involved in PMGR and PVSGR is a major reason why
hospitals are adopting PMGR and PVSGR. There is a great need to analyze exactly
what ethical concerns should be considered.55 Debate and discussion can help
alleviate some of the complexity.
A. Should PMGR and PVSGR Procedures Be Performed?
The ethical discussion of PMGR and PVSGR should always start by asking the
overarching ethical question whether PMGR and PVSGR should ever be performed.
Just because the technology exists to perform PMGR and PVSGR does not necessarily
mean that the retrievals should be performed. Even in instances of clear written
explicit evidence of patients' authorization of PMGR or PVSGR, a determination must
be made whether such authorizations should be recognized and honored. For
example, suppose that Paul indicates in his advance directive or written will that he 54 Brock, 2005, at 268; Strong at 739. 55 Strong, 2000, at 741, 42.
13
would like his gametes to be retrieved and used by his wife for procreative purposes
in the event of his death or PVS. Paul dies. Should society recognize Paul's choice to
procreate after death? After all, if procreating after death is determined to be always
inappropriate, then PMGR and PVSGR procedures may not be "worthy
of...consideration."56 Just because patients authorize PMGR and PVSGR procedures
does not necessarily mean that PMGR and PVSGR should be honored because
honoring a "choice for choice's sake is not a compelling principle for ethical, legal, or
social decision-‐making."57
Procreative liberty is widely considered a fundamental right in the U.S.
Procreative liberty is a broad term that is protected by the Constitutional right to
privacy and includes the right to procreate and the right not to procreate.58 The
right to procreate is realized when couples engage in "traditional" acts of
procreation. 59 Also, implicit in the right to procreate is an assumption that
"traditional" forms of procreating are morally permissible ways to procreate.
However, PMGR and PVSGR do not fall in the "traditional" definition of procreation.
In order to determine the moral permissibility of PMGR and PVSGR, we are required
to explore how PMGR and PVSGR procreation relates to "traditional" procreation.
To establish a connection between traditional procreation and PMGR and
PVSGR, some reasons given by people wanting to procreate in the "traditional" way
must be identified. These reasons give procreation value. These reasons must then
be applied to PMGR and PVSGR situations. If some of the reasons why people want
56 Katz, 2006, at 294. 57 Robertson, 1994, at 1033. 58 These rights are discussed in more detail in the next chapter. 59 By traditional, I mean coital reproduction before the advent of medical non-‐coital reproduction.
14
to procreate in the "traditional" way can also be used to explain why people may
want to procreate after death or while in PVS, then there are some reasons for
procreating after death or while in PVS. Therefore, in at least some instances,
procreating after death or while in PVS is afforded some value.
To determine procreative value we must ask why the choice to procreate in
the "traditional" way is important to people.60 Some common reasons individuals
provide for choosing to procreate include: the desire to participate in creating
another person; affirmation of mutual love; contribution to sexual intimacy; the
experiences of pregnancy and birth; and the experiences of child rearing.61 Also,
procreating connects individuals with future generations and provides personal, if
not selfish, experiences through contact with their offspring. These reasons have
some value to the individuals involved because they provide definition and
fulfillment to their own lives. If these reasons had no value then no one would
procreate.
Once reasons for traditional procreation are identified, these reasons need to
be applied to PMGR and PVSGR situations. As stated above, some people desire to
reproduce because of the genetic, gestational, and child-‐rearing experiences
involved.62 However, someone choosing to reproduce after dying or in a PVS can
share only some of the traditional reasons given for why people choose to
reproduce. These are the desire to participate in creating another person and
affirmation of mutual love.
60 Strong, 1999, at 254. 61 Id. at 255. 62 Robertson, 1994, at 1031.
15
Another important question to ask at this point is whether it is a meaningful
reproductive experience to know in advance that one's gametes might be used to
produce offspring after one's death.63 In PM and PVS situations, a person may be
comforted while alive by the fact that he or she may produce offspring after death or
while in PVS. In addition, PMGR and PVSGR individuals while living and competent
may be comforted by the ability to control their legacy.
In the "traditional" procreation situation, an individual has the right to
reproduce and can directly control the disposition of his or her gametes. For
example, individuals exercise this right by choosing who they want to have sexual
intercourse with. However, deceased and PVS individuals can no longer choose
whom they have sexual intercourse with. They no longer have the ability to directly
control the disposition of their gametes. Instead, these individuals can only make a
choice if their pre-‐mortem or pre-‐incapacity control over disposition of their
gametes is extended past their death or incapacity. So, even though there may be
reasons to procreate after death or in PVS, it must be determined whether
individuals' pre-‐mortem or pre-‐incapacity authority to control the disposition of
their gametes extends past their death or incapacity.64
Society has recognized individuals' right (or interest) to control their own
bodies. These interests may be tied to our personhood or because of our property
interest in the parts.65 For example, individuals are permitted to "utilize [their]
63 Id. 64 Although this issue has been, for the most part, settled in the courts, it is an issue that still warrants a brief analysis. See Chapter 3 for further discussion of the issue. 65 Schiff, 1997, at 909.
16
body parts for a variety of purposes."66 Blood, organs, and tissues can be donated
from deceased or living patients. Similarly, individuals are permitted to anticipate
their own future infertility (and in some cases death) and have their gametes
removed and frozen. This is allowed because society not only recognizes the
importance of procreation, but also recognizes that procreation is a personal choice
that should be respected. The method people use to procreate should also be
respected. This recognized respect of reproductive choice permits people depositing
their gametes in a storage facility to designate the recipient of those gametes. It is
not a leap to extend the same type respect to individuals who want to procreate
after death or in PVS.
There are identifiable reasons why individuals procreate in the "traditional"
way. These reasons give traditional procreation value. Some of these reasons can be
used to explain why some individuals may want to procreate after death or in PVS.
So, PMGR and PVSGR have some value. Furthermore, individuals have the authority
to control how their gametes are to be used in the event of their death or PVS.
Therefore, the choice to use PMGR or PVSGR to procreate should be respected in
some instances.
B. Respecting Autonomy and The Issue Of Consent
In the section above, I argued that PMGR and PVSGR should be performed in
some instances. Analysis now shifts away from determining whether PMGR and
66 Id. at 908.
17
PVSGR should ever be performed to determining in what situations it is permissible
to perform PMGR or PVSGR.
In PMGR and PVSGR situations, the deceased or PVS individual's autonomy is
at stake. But what is autonomy? If the dead do have autonomy, is that autonomy as
strong as when the individual was living? Can another's autonomy trump a deceased
or PVS individual's autonomy?
Personal autonomy can be defined as "self rule that is free from both
controlling interference by others and from certain limitations...that prevent
meaningful choice."67 To be autonomous an individual must have "independence
from controlling influences" and have "the capacity for intentional action." 68
However, individuals rarely, if ever, make meaningful choices completely
intentionally and without influence. Therefore, a choice only needs to substantially
adhere to the two components of autonomy.69 In gamete retrieval procedures, a
recently deceased or PVS individual can be said to have made an autonomous
decision when that individual independently and intentionally decided to have his
or her gametes retrieved and used after death or in PVS.
The principle of autonomy requires others to recognize and respect personal
autonomy. This may require others to enable an individual to act in an autonomous
way. 70 To respect another person's autonomy may require honoring an
incapacitated individual's previous autonomous choice or rendering that individual
able to make a choice.
67 Beauchamp and Childress, 2009, at 99. 68 Id. at 100. 69 Id. 70 Id. at 103.
18
Most of the concerns arising from PMGR and PVSGR involve determining
how to respect the deceased or PVS individual's personal autonomy. Since
individuals in gamete retrieval situations are either deceased or permanently
incapacitated they cannot make a clear contemporaneous choice; the choice must
have been made before dying or suffering the trauma. This previous choice may be
referred to as consent.71
To properly respect a deceased or PVS patient's autonomy after receiving a
PMGR or PVSGR request, the medical team must ask two questions: (1) Did the
patient consent to the gamete retrieval procedure? (2) Did the patient consent to
having his or her gametes used to create a PM or PVS child? I think a PMGR or
PVSGR should not be performed unless the answer to both questions is yes.
Both PMGR and PVSGR situations require analyzing whether the deceased or
PVS individual consented to the retrieval procedure before asking whether the
individual consented to having his or her gametes used to create a PM child. So in
PMGR and PVSGR situations the first question to ask should always be whether the
individual consented to the gamete retrieval procedure. Only after consent to the
procedure is determined can consent to use those gametes be determined. The
answer to these two questions depends on determining what type of consent
sufficiently protects the deceased or PVS patient's wishes in PMGR and PVSGR.
71 Consent in PMGR and PVSGR is not necessarily synonymous with typical informed medical consent. Medical consent occurs after an exchange of information between the doctor and the patient, where the doctor offers a service, and the patient consents (or agrees) to the offered services. Instead, consent in PMGR and PVSGR situations is defined as "pre-‐mortem [and pre-‐PVS] permission" for the procedures and subsequent use. However, to avoid possible confusion and to remain consistent with the literature discussing PMGR and PVSGR, I will use the word consent. See Katz, 2006, at 309.
19
There are four distinct ways deceased and PVS patients can consent to PMGR
or PVSGR. The first way patients can consent to PMGR and PVSGR is through their
written explicit consent. For example, the medical team may decide to rely on Kurt's
written explicit consent if he has executed a living will that reads, "In the event of
my death or PVS, I want my sperm to be retrieved and used to create a PM child."
The second way patients can consent is through their surrogate decision maker and
what the patient said he or she wanted but not in writing. Generally, surrogate
decision makers may make choices for patients, such as consent to PMGR or PVSGR,
based on what the patient said he or she wanted. For example, the medical team
may decide to rely on Kurt's verbal consent if Kurt told several people that he would
like his sperm to be retrieved in the event of his death or PVS.
The third way patients can consent to PMGR or PVSGR is through their
surrogate decision maker who determines what the patient would have wanted. If
the surrogate decision maker is unclear what the patient wanted, then he or she
may make medical decisions using the substituted judgment standard. Substituted
judgment allows surrogate decision makers to make a decision for patients based on
what the patient would have wanted. A fourth way consent can be given is through
the surrogate who determines what is in the best interest of the patient. If the
surrogate decision maker is unsure of what the patient would have wanted, then the
surrogate may consent to the procedures by determining what is in the best interest
of the deceased or PVS patient. For example, if Kurt's mother is Kurt's surrogate
decision maker, then Kurt's mother may look at Kurt's previous statements about
wanting to start a family to determine if PMGR or PVSGR is something that Kurt
20
wanted, would have wanted, or whether it is in Kurt's best interest. As I describe
later, the best interest standard should never be relied on in PMGR and PVSGR.
Determining what type of consent sufficiently protects patients' reproductive
autonomy is crucial to determining whether PMGR and PVSGR procedures should
be performed in any given situation. So what type of consent sufficiently protects a
deceased or PVS patient's autonomous wishes? Can only the individual undergoing
the procedure consent? If so, does the individual's consent need to be explicit
consent or can the individual's consent be inferred from their actions? What
evidence can a surrogate decision maker rely on to reach a consent decision for
another individual's behalf? How can the surrogate decision maker determine
another individual's wishes? If a surrogate decision maker is allowed to consent on
the individual's behalf, what problems arise?
Explicit Written Consent
When hospitals receive PMGR and PVSGR requests, the medical teams may
be presented with a wide variety of evidence that is claimed to indicate a deceased
or PVS patient's consent for PMGR or PVSGR. Many commentators agree that
patients' written explicit consent is the best evidence of patient consent to PMGR
and PVSGR procedures. In reality, however, explicit written consent in PMGR and
PVSGR situations is rare.72 Most of the retrieval requests involve patients who have
not expressed a desire specifically for PMGR or PVSGR. So requests for PMGR and
PVSGR will most likely be accompanied with non-‐written evidence, which the
72 Brock, 2005, at 275.
21
requestor claims indicates the patient's desire for children even in the event of
death or PVS.
I think that written explicit consent is the only acceptable type of consent
that can indicate a patient's desire for PMGR or PVSGR. There are several reasons
why explicit written consent is desirable over the other types of consent. First, if
consent indicates state of mind, then patients' written express consent is the best
evidence of patients' choice while in that state of mind.73 Second, patients' written
explicit consent for PMGR and PVSGR protects patients' reproductive autonomy
because it provides "clear and unequivocal" evidence of pre-‐mortem intent for
PMGR and PVSGR and indicates "a desire to parent posthumously."74 As discussed
below, this kind of assurance is not possible with the other types of consent. Third,
written explicit consent takes reproductive decision making out of the medical
teams' hands because the medical team can accept the written consent and are not
required to weigh evidence of patients' intent. Instead the patient makes the choice.
If medical teams honor only PMGR and PVSGR requests accompanied by written
express consent then there is less of a question what the patient's wishes are. This
evidence prevents the medical team having to question what may be best for the
patient. Fourth, written express consent places the burden for indicating PMGR and
PVSGR wishes on those who want the procedure instead of placing the burden on
those patients who may not want the procedure. Evidence suggests that substantial
73 Id. 74 Williams, 2011, at FN. 39.
22
portion of the population may not want PMGR or PVSGR to be performed upon
death or PVS.75
Some, but not all, of the types of documents that may satisfy the written
express consent requirements for PMGR and PVSGR include: wills, advance
directives, health care power of attorney forms, and medical file amendments or
notations.
One problem with written explicit consent involves determining whether the
written document accurately reflects deceased or PVS patients' wishes. For example,
a will executed by a patient ten years ago authorizing PMGR and PVSGR may not
accurately reflect the patient's current wishes. This problem is inherent in all
documents. Even with this problem, written explicit consent for PMGR and PVSGR is
still the best type of consent medical teams have, because the writings may be less
likely to be misunderstood than previous statements or actions.
Another problem with relying on written explicit consent to indicate
patients' wishes for PMGR and PVSGR arises from the language and format of the
current forms used by patients to inform their medical providers of their choices.
For example, advance directives and health care power of attorney forms usually do
not state or provide a place to indicate patients' desire for or against PMGR or
PVSGR. However, some advance directive forms, such as North Carolina's health
care power of attorney form, contain a place where an individual may limit his or
her agent's power to decide the disposition of his or her remains, including a place
75 Barton, 2012, at 737 (Half of the respondents did not want their partner to be able to retrieve their gametes in the event of their death).
23
to specify these powers.76 It is unclear whether indicating on the form special
instructions on how the patient's gametes are to be treated is the proper place to
indicate such instructions.
One possible way around the problems involving statutory advance directive
forms may be to amend a health care power of attorney form to indicate special
instructions for gamete retrieval and use on that form. Another possible alternative
individuals may have is to draft an organ donation card and expressly indicate
PMGR and PVSGR wishes on that card. I address some of the ways legislation can
address this confusion in my discussion of legislation in Chapter 6.
Non-‐written Explicit Consent
A natural question to ask at this point is whether explicit non-‐written
consent can be used to indicate a patient's wishes for PMGR and PVSGR? Several
situations can be imagined where a patient's prior explicit non-‐written consent may
just as strongly indicate a patient's desire for PMGR or PVSGR as explicit written
consent. For example, suppose that Johnny tells his wife that he is completely open
to PMGR or PVSGR and would love to procreate after his death or PVS. In this
example, Johnny has uttered his explicit verbal consent to the procedures. However,
Johnny depends on another person, his wife, to inform the medical team of Johnny's
desire. There is a lot of room for the wife to interpret Johnny's explicit statements.
If the goal is to protect Johnny's choice to procreate or not procreate (I argue
this should be the goal of PMGR and PVSGR hospital policies), then relying on
76 North Carolina Health Care Power of Attorney Form
24
another person to convey Johnny's choice falls short of the goal. In addition, if
explicit non-‐written consent is determined to sufficiently indicate a patient's desire
for PMGR and PVSGR, then hospitals and medical teams must weigh the evidence to
determine the strength of the evidence. This type of consent incorrectly places the
medical team in charge of the patient's reproductive choice; a choice hospital and
medical teams usually have no authority over in traditional procreation situations. If
explicit non-‐written consent is allowed then the problems of determining the
sufficiency of that consent are analogous to the problems that arise if surrogate
decision makers are allowed to consent to PMGR and PVSGR.
Problems of Surrogate Decision Makers
Usually, a family member serves as a deceased or PVS individual's surrogate
decision maker. Surrogate decision makers are generally required to make decisions
consistent with the best interests and wishes of the deceased or PVS individual. As
discussed at the beginning of this section, a patient's surrogate decision maker may
use (1) prior statements made by the patient concerning PMGR, (2) a substituted
judgment standard to determine what the patient would have wanted, or (3) a best
interest standard to determine whether PMGR and PVSGR are in the patient's best
interest.
If the surrogate decision maker is making a decision for a deceased or PVS
individual using the substituted judgment standard, she or he is required to make a
decision the deceased or PVS individual would have made if he were able to.77
77 Beauchamp and Childress, 2009, at 136.
25
According to Beauchamp and Childress, this standard should only be used "if reason
exists to believe that the surrogate decision maker can make a judgment as the
patient would have made it."78 The surrogate decision maker would need to offer
reasons why the individual would have wanted PMGR and PVSGR. This may be
indicated by certain actions or patterns the deceased or PVS patient exhibited while
alive. Also, according to the standard, general statements about wanting to have
children in the future may be used as evidence of the deceased or PVS patient's wish
for PMGR and PVSGR.
As a last resort and when medical decisions must be made, surrogate
decision makers sometimes use the best interest standard to make that decision.
According to Beauchamp and Childress, the best interest standard should only be
used when the individual's wishes are not known, and the surrogate has no
knowledge of the person’s beliefs, values, or goals on which to base a substituted
judgment.79 The surrogate has an obligation to pick a choice that maximizes the
benefit of the deceased or PVS patient. Also, the medical team also has an obligation
to help choose what is in the patient's best interest. However, the best interest
standard is used to address medical decisionmaking relating to the patient's health,
thus using the best interest standard in the PMGR and PVSGR context does not apply
here.
One problem with relying on a substituted judgment standard or best
interest standard is that if past statements or writings do not anticipate and address
the specific choices at issue, they cannot reflect what the individual would have 78 Id. 79 Beauchamp and Childress, 2009, at 138.
26
wanted. For example, Bob tells his wife Gloria several years before he dies that he
would like to start a family. He also writes a poem expressing his desire to have kids.
When he dies, Gloria makes a gamete retrieval request and uses Bob's past
statements as evidence proving that Bob wanted to have a gamete retrieval
performed. But the statements or writings make no mention of having PM children.
Bob may or may not have entertained the thought.
A serious problem with relying on surrogate decision makers to provide
patient consent for PMGR and PVSGR procedures is that the surrogate decision
makers are usually an interested party standing to benefit from the procedures. The
patient's intimate partner or family members usually make PMGR and PVSGR
requests. These parties are also usually patients' surrogate decision makers.
Therefore, patients' intimate partners and family members will always appear to
have a conflict of interest because they stand to directly benefit from the gametes.80
For example, Gloria is Bob's surrogate decision maker. She has always wanted a
child and questions her ability to find another husband. Gloria requests Bob's
gametes so she can have his child. Since she is requesting the gametes so she can
become pregnant, it is reasonable to question whether Gloria is doing what Bob
wanted, or would have wanted, or has Bob's best interests in mind.
The medical team is morally required to respect their patient's autonomy
whenever reasonably possible, but if they do not have explicit consent the team
would need to rely on other evidence indicating whether the patient wanted to have
his or her gametes acquired and used after death or in PVS. While this evidence may
80 Batzer at 1266.
27
exist, the evidence is usually conveyed by others and may be inaccurate. For
example, Gloria is overcome with grief and is looking for a way to replace the hole
Bob's death has left in her life. Her grief may actually prevent her from viewing
Bob's past actions in the correct light. There is some question whether Gloria can be
relied on to accurately convey Bob's wishes.
Performing PMGR or PVSGR procedures based on past statements uttered by
the patient and filtered through an interested party, based on the belief that the
patient would have wanted the procedure, or based on the belief that PMGR and
PVSGR is in the best interest of the patient, is questionable. It is usually
impermissible to take reproductive materials from individuals (or insert
reproductive materials into individuals) unless the individuals have clearly
consented to such actions. In this regard Lori Andrews is correct in asserting that
PMGR and PVSGR procedures are morally akin to rape when unaccompanied by
clear patient consent.81 The rape victim's loss of control over her own reproductive
autonomy (as well as the usual presence of violence) makes rape a morally
deplorable action. A rapist cannot defend his actions by asserting that his
incapacitated victim would have wanted to have sex, or that his victim generally
expressed the desire to have sex before becoming incapacitated, or that the victim's
silence on the issue indicates her willingness to be raped. If a rapist cannot use these
justifications for rape, why should PMGR and PVSGR requestors, hiding behind a veil
of medical procedures, be able to use them?
81 Andrews, 1999.
28
Due to the inherent conflict of interest, potential for inaccuracy, and the
alarming resemblance to rape, using substituted judgment or best interest evidence
should not be used to construe patients' consent for PMGR and PVSGR procedures.
Furthermore, it is unreasonable to construe a patient's silence on PMGR and PVSGR
as the patient's consent to have the procedures performed. Any attempt to
determine what is meant by the patient's silence quickly descends into a guessing
game. Any evidence brought in to support the contention that the silence somehow
indicates the patient's approval is circumstantial. Therefore, only written explicit
consent sufficiently protects patients' choice over reproductive matters and should
be relied on when deciding whether to perform a retrieval procedure.
Balancing Competing Claims Of Reproductive Autonomy
In discussing reproductive autonomy, we must also determine whose
reproductive autonomy should be given priority.82 The right to procreate and the
right not to procreate are fundamental and personal decisions and implicate "liberty
and privacy rights under the law."83 Both the deceased or PVS individual and the
individual's spouse have legitimate reproductive autonomy claims. Should a
spouse's reproductive autonomy be able to trump the deceased's reproductive
autonomy? Should parental PMGR and PVSGR requests for their son's or their
daughter's gametes be honored?
Most PMGR and PVSGR situations involve the reproductive autonomy
interests of two individuals, the patient and the patient's intimate partner. These 82 Katz, 2006, at 311. 83 Brock, 2005, at 274.
29
two interests may be in harmony or come in conflict when the patient dies or is in
PVS. For example, a patient's wife may feel that her husband's gametes should be
retrieved because the marriage relationship entitles her to his gametes. But is it
necessarily true that the marriage relationship (or any other intimate relationship)
alone entitles one partner to the reproductive materials of the other partner?
There are four distinct situations where the interests of the patient and the
patient's intimate partner need to be considered together. The first occurs when the
patient and the intimate partner both want to procreate after death. The second
situation occurs when the patient wishes to procreate in the event of incapacity or
death, but the intimate partner does not want to procreate. The third situation
occurs when the patient does not want to procreate or has not expressed an explicit
desire to procreate, but the intimate partner wants to procreate. The fourth
situation occurs when both the patient and the intimate partner do not want to
procreate.
The first situation requires determining whether there are reasons and
interests to allow post-‐mortem conception, which I have done in the first part of this
chapter. Assuming that the patient made his or her wishes explicitly known in
writing before death or PVS, then the couple's wishes should be granted. The second
situation does not require the medical teams to weigh reproductive autonomy. If the
intimate partner does not make a gamete retrieval request, then those gametes will
not be retrieved. To force the intimate partner to retrieve and conceive would most
certainly infringe on his or her reproductive autonomy. The last category does not
even need to be considered. If the patient makes it known that they do not want
30
children after death or is silent, and the other party does not make a request, then
no gamete retrieval will be performed. The most difficult situation and the one most
commentators are concerned with is the third situation. In the third situation, the
intimate partner may try to convince the medical team that his or her reproductive
autonomous choice should be substituted for the patient's. In this situation, written
express consent from the deceased or PVS patient should be required before
granting the intimate partner's request.
At this point, it is necessary to discuss the proper role patients' parents and
other family members play in the PMGR and PVSGR process. The results of one
study suggest that a majority of people may oppose parents having access to their
child's gamete for the purpose of reproduction.84 I also think that parental or family
member PMGR and PVSGR requests should never be honored. First, if the goal of
PMGR and PVSGR is the subsequent procreation, then the intimate partner can
probably achieve this goal quicker than parents. The subsequent procreation from
the retrieved gametes is probably less likely to occur when parents obtain the
gametes. Second, allowing parents to make PMGR and PVSGR requests puts them in
charge of their children's reproductive autonomy. It allows them to have a direct
and active interest in their children's reproduction, when parents usually do not
have this interest.
Some may ask how PMGR and PVSGR cases where parents request their
deceased or PVS child's gametes are different from cases where parents request
their child's gametes before their child goes through cancer treatment. Arguably the
84 Barton, 2012, at 737.
31
goals and benefits are different. In cases of cancer, parents presumably are making
the choice for the benefit of the child should the child survive the cancer and want
children later in life. The parents are not making the assumption that their child
would have wanted future children. Instead, the parents are consenting to the
procedure in the event their child does want future children. This still leaves the
ultimate decision whether to use the previously retrieved gametes in the child's
hand and preserves the child's reproductive choice. Parents should only make this
choice if it is in their child's best interest and only until their child becomes mature
enough to consent to gamete retrievals on his or her own. If parents consent to
having their child's gametes retrieved and their child dies or enters PVS, then
parents should not be allowed to use their child's previously retrieved gametes to
create a child.
C. The Principle Of Nonmaleficence
The principle of nonmaleficence requires that we should not harm others. It
is the negative side of beneficence.85 The principle of nonmaleficence supports
moral rules such as: do not kill, do not cause pain and suffering, do not incapacitate,
do not cause offense, and do not deprive others of the goods of life.86 The obligations
of nonmaleficence also include the obligation to not impose risks of harm.87
The principle of nonmaleficence is central to the question whether PMGR and
PVSGR should be permitted in any given situation. The goal of protocols or policy
85 Beauchamp and Childress, 2009. 86 Id. at 153. 87 Id.
32
involving incapacitated patients is to "determine the best system for protecting
patients from negligence and harm."88 Generally, families are in the best position to
decide what is best for their incapacitated loved ones, although not all have their
loved one's best interest in mind. The principle of nonmaleficence can be seen as
advocating the development of a "system that will shield" deceased and PVS
individuals from family members and others.89
The principle of nonmaleficence requires identifying what is meant by
"harm" in PMGR and PVSGR situations. The term harm is defined as "significant
bodily harms and other setbacks to significant interests."90 This definition of harm
does not require the existence of pain but an actual or potential ill effect. Both the
dead and living persons in PVS are in danger of being harmed because their
interests may be overlooked and they cannot personally protect their interests.91
Much like the issue of consent, PMGR and PVSGR patient harms can be divided into
two questions: (1) How is the patient harmed from PMGR and PVSGR procedures?
(2) How is the individual harmed by the use of the retrieved gametes?
The retrieval procedure can physically harm the deceased or PVS individual.
Of course deceased individuals cannot feel the harm, but they can experience the
harm if the body is unnecessarily violated or mutilated. Some commentators have
compared the harm caused to individuals from PMGR procedures to the harm
caused to individuals from autopsies. However, the procedures are different. The
harm inflicted on the deceased during an autopsy may have societal and policy
88 Id. at 185. 89 Id. at 186. 90 Beauchamp and Childress, 2009, at 152. 91 Bahadur, 2002, at 2773.
33
justifications. Harm caused to deceased individuals from autopsies is justified on the
grounds that investigating the cause of death can prevent similar future deaths. In
contrast, the harm inflicted on a deceased patient during a PMGR does not have an
overarching societal or policy justification. The harm from surgery inflicted on the
deceased during PMGR is not a benefit to the patient, unless the patient clearly
indicated a desire for PMGR while alive. While PMGR patients may not be able to feel
harm, PVSGR patients may be able to feel pain.92 Therefore, care must be taken
when retrieving gametes from PVS patients.
The families of deceased or PVS patients can also experience harm. Certain
family members may view PMGR as corpse desecration. This desecration may
violate laws and policy designed to ensure the respectful treatment of the dead. In
addition, some family members may view the electroejaculation method used to
retrieve sperm from PVS men as rape.
Both the deceased patient and the PVS patient can be harmed by
unauthorized use of his or her gametes. For example, becoming a parent against
one's wishes may constitute a harm. The patient is harmed not merely because
someone who carries his or her genetic code, but is harmed by "attribution of
parenthood.”93 If a living person is considered a parent by society, by the child, or by
the person himself, that attribution can cause harm by damaging the parent’s
reputation and creating unintended economic consequences.94 Furthermore, a child
resulting from PMGR and PVSGR can "redefine the content and outlines of the
92 Coghlan, 2008. 93 Cohen, 2008, at 1128. 94 Knaplund, 2012, at 926; Bahadur, 2002, at 2773.
34
deceased's life" and "deprive the individual the opportunity to be the conclusive
author of...his or her life."95
Also the decedent's estate and preexisting heirs may be harmed when the
decedent's gametes are used to create a PM child. For example, the decedent’s estate
may be obligated to provide for that child as an intestate or as an heir yet to be
born.96 This may harm decedent's existing heirs, who now have to split their share
of the estate with a posthumously conceived sibling. This type of harm is discussed
in the next chapter.
D. The Principle of Beneficence
The principle of beneficence may require medical providers to contribute to
other people's welfare. 97 The principle of beneficence can be split into two
principles: positive beneficence and utility.98 The principle of positive beneficence
requires agents to provide benefit to others.99 The principle of utility requires that
agents weigh benefits, risks, and costs to produce the best result.100
The accepted understanding of beneficence is that we are morally permitted
to help or benefit those with whom we have a special relationship, but not required
to help those with whom we do not have a special relationship.101 The principle of
beneficence in PMGR and PVSGR situations is implicated in the medical team's
relationship with the deceased or PVS individual and the individual's family. One of 95 Bahadur, 2002, at 2773. 96 Knaplund, 2012, at 926. 97 Beauchamp and Childress, 2009, at 197. 98 Id. 99 Id. 100 Id. 101 Id. at 199.
35
the health care professional's primary obligations is to act in the patient's medical
benefit. Beneficence often appears to be in conflict with the principle of autonomy,
but beneficence may be defined to include an individual's preference when
determining what counts as a medical benefit.102
The medical team may have an obligation to provide only beneficial
procedures to their patients.103 It may be a stretch to argue that PMGR and PVSGR
procedures benefit deceased or PVS patients. The procedures harm patients because
they require surgery or are invasive. However, the medical team may provide a
benefit in performing PMGR and PVSGR by helping patients realize their pre-‐
mortem or pre-‐PVS wishes. The best way medical teams can determine whether
PMGR and PVSGR procedures benefit their patients is through patients' written
express consent for the procedures.
If physicians have an obligation to provide only beneficial procedures then
there may be some confusion as to whom the procedure is supposed to benefit.104
Some may argue that the medical teams owe beneficence not only to patients, but
also to patients' families. This argument extends the medical team's professional
role as healer to include a role as counselor. Dr. Rothman, the physician who
performed the first PM gamete retrieval, has defended his actions by saying that "it
could actually be unethical to deny the hope and help available through [gamete
retrieval] to a grief-‐stricken [spouse]..."105 Dr. Rothman has even retrieved the
102 Beauchamp and Childress, 2009, at 207. 103 Orr, 2010, at 299-‐303. 104 Id. 105 Rothman, 1999, at 456
36
gametes from a unmarried man without a fiancée and reported that the "man's
father was greatly consoled."106
As mentioned above, Dr. Rothman and other physicians may view their role
as healer to include consolation at a time of grief and tragedy.107 Physicians who
share Dr. Rothman's view see PMGR and PVSGR as a way to alleviate suffering of
family members. This may include performing gamete retrievals not only for the
patient's intimate partner, but also for the family members making PMGR and
PVSGR requests.108 Physicians who hold the principle of beneficence in high regard
may see their role not as "deciding whose rights to [gametes] should prevail", but as
"lessening grief and offering alternatives."109
I question Dr. Rothman's justifications for performing PMGR and PVSGR
procedures on his patients. Physicians like doctor Rothman in an understandable
"attempt to sympathize" with intimate partners (or families) may "automatically
trust their motives" behind making retrieval requests.110 But I think that grief can
cloud the deceased's partner's judgment. Grief may cause the patient's "[partner or]
family to begin to feel more like the patient than the individual whose gametes are
being requested."111 This grief could cause the intimate partner to improperly "use
the [deceased or PVS patient] as a means to [the partner's] own end." 112
Furthermore, doctors catering to these emotionally charged requests may
experience a "shift of patient perception," rendering them unable to properly 106 Id. 107 Id. 108 Id. 109 Id. at 457. 110 Cannold, 2004. 111 Brock, 2005, at 271. 112 Cannold, 2004.
37
"appreciate the risk of [retrieving the gametes] without the deceased or [PVS]
person's consent."113 Using the principle of beneficence to treat the patient's
family's grief can cause the medical team to ignore their deceased or PVS patient's
autonomy. Therefore, PMGR and PVSGR should not be undertaken solely to treat a
patient's family's grief.
113 Brock, 2005, at 271.
38
CHAPTER 3: LEGAL CONSIDERATIONS
In a way, the answer to the question whether PMGR or PVSGR is "legal" to
perform is the low hanging fruit on the gamete retrieval tree of problems. There is
currently no legislation or case law that directly addresses whether PMGR and
PVSGR procedures are "legal" to perform. Instead there is a tacit recognition in
current legislation and case law that PMGR and PVSGR should be allowed in some
instances. However, what is legal is not always ethical and many people are
uncomfortable with a tacit yes to such a controversial, and sometimes unsettling,
procedure.114 Even some courts recognize that the issues arising from PMGR and
PVSGR "cry out for a lengthy, careful examination outside the adversary process."115
Currently PMGR and PVSGR are occurring in what may be called "a legal
void."116 Assisted reproduction in the U.S is largely unregulated and not extensively
litigated. All gamete retrievals that have been performed so far are done "without a
legal backbone."117 PMGR and PVSGR procedures are not legally prohibited and a
limited body of case law deals with the problems caused by posthumous
procreation. These problems involve either the right an individual has over his or
her own reproductive materials or the rights of post-‐mortem born children.118
114 Andrews, 1999. 115 Woodward at 556-‐57. 116 Katz , 2006, at 299. 117 Williams, 2011, at 182. 118 Sutton at 859.
39
A. Constitutional Rights and Bodily Integrity Rights
The U.S. Constitution does not contain a fundamental right to procreate and
to not procreate. 119 However, the courts have established "constitutional
safeguards" that have historically protected this right.120 The Supreme Court has not
formally recognized a fundamental right to procreate, but has ruled on several cases
that imply the right exists. 121 For example, the Supreme Court has recognized that a
person's decision to bear children is covered by the constitutional right to
privacy.122 The Supreme Court has yet to determine whether this fundamental right
extends to individuals who wish to reproduce posthumously. The Court also has not
directly addressed PM born children's rights. Therefore, PM born children's rights
are determined at the state level and vary from state to state.
Although there is not a constitutional right to procreate (or not procreate)
posthumously, legislation and courts have afforded the dead certain rights over
their bodies and how their bodies are to be treated. These "bodily integrity rights"
include the right to control disposition of one's own body, such as burial
instructions and organ donation.123 However, bodily integrity rights are only "rights
in a qualified sense", and the deceased cannot defend violations of these rights.124
Instead the decedent's family members or an interested third party must bring the
cause of action. What this means is that any "assertion that a cadaver has a right to
119 Elliot, 2004, at 55. 120 Id. 121 Griswold v. Connecticut; Eisenstadt v. Baird. 122 Elliot, 2004, at 56. 123 Knaplund, 2012, at 924. 124 Pierce v. Proprietors of Swan Point Cemetery, at 239.
40
bodily integrity, and thus a cause of action if his or her gametes are retrieved
without pre-‐mortem consent, is tenuous at best."125
B. Property Rights in Gametes
An individual's right to control his or gametes is a central issue in PMGR and
PVSGR. The question is whether an individual can give his or her gametes to another
individual for the purpose of procreation after death. After struggling with
classification of reproductive materials, the general consensus reached by the courts
is that gametes are not property in strictest term, but "occupy an interim category
that entitles them to special respect because of their potential for human life."126
The leading case addressing PM conception and property rights is Hecht v. Superior
Court.127
In Hecht, William Kane committed suicide after depositing his sperm into a
sperm bank. Before his death, Kane had signed a release form to have his sperm
released to his girlfriend, Deborah Hecht. Kane also executed a will that further
stated his sperm should be released to Hecht. Kane's previous children contested
the will and release form.
In Hecht, the court's analysis centered on what property interests an
individual has over his or her own body. The court recognized sperm as a "unique
type of property" due to sperm’s ability to create another life.128 The court held that
Kane had ownership interest in his gametes and could use his "decision making
125 Knaplund, 2012, at 925. 126 Davis v. Davis at 597. 127 Hecht v. Superior Court. 128 Id. at 283.
41
authority" while alive to control how his gametes were to be used after his death.
Perhaps more importantly, the court also held that post mortem conception was not
against public policy. In addition, the court determined that the judiciary's role does
not include inhibiting the use of reproductive technology "when the legislation is
silent on the issue."129 The court reasoned that doing so would raise questions of the
"fundamental nature of procreation and privacy."130
In A.Z. v. B.Z., a Massachusetts case considering certain issues surrounding
the disposition of frozen pre-‐embryos, the court recognized that individuals have a
protected right to control the use of their gametes.131 The court, recognizing the
value of bodily and reproductive integrity, refused to force a husband to become a
parent and held that "forced procreation is not an area amenable to judicial
enforcement."132
C. Social Security Survivor Benefits
If any area of the law involving PM conception (thus relevant to PMGR) can
be perceived as extensively litigated, it is the area of Social Security survivor
benefits. Most of the cases in this area involve the surviving parent suing on behalf
of his or her child so the posthumously conceived child can receive his or her
deceased biological parent's Social Security survivor benefits.
129 Hecht v. Superior Court at 290. 130 Id. 131 A.Z. v. B.Z. 132 Id. at 160.
42
In one case, a prolonged court battle was avoided and the PM child received
survivor benefits.133 Shortly after marrying Nancy Hart, Ed Hart developed cancer.
Ed, anticipating the possibility that the cancer treatment would render him sterile
or simply not work, chose to have some of his sperm stored in a sperm bank. In
1990, Ed passed away and Nancy used the frozen sperm to become pregnant. In
1991, their daughter Judith was born. Nancy then tried to receive Social Security
survivor benefits for Judith. The Social Security Administration (SSA) denied
Nancy's claim because Louisiana law did not recognize a child born after death
through artificial insemination as a legal heir of the deceased individual. Nancy
appealed the decision and the SSA settled the case, awarding her child survivor
benefits.
After the Harts’ case, Social Security survivor benefit cases end up going the
other way. In Woodward v. Commissioner of Social Security, Woodward was denied
benefits for her twin daughters conceived from her husband's sperm two years after
his death.134 In Woodward, the sperm was frozen before the husband's death. The
Massachusetts Supreme Court recognized that PM children could enjoy the same
inheritance rights as children not created posthumously. To do so, the court
required Woodward to prove three things: 1) the genetic relationship between the
father and daughters, 2) that the father consented before his death to have his
frozen sperm used by his wife for the creation of PM children, and 3) that the father
had consented to support all PM children before his death. Woodward could not
133 Elliot, 2004, at 60-‐62. 134 Woodward v. Commissioner of Social Security.
43
prove that her husband had consented to support his PM children before his death
and her children were denied the survivor benefits.
In Veroff v. Astrue, Brandalynn, the first child born in the U.S. by PMGR, was
required to establish that she was the natural child of her father or a dependent of
her father when he died. Brandalynn was required to show dependency, her father's
intent to father and support her, and her right to inherit from her father. Brandalynn
could not prove the first two requirements because she was born four years after
her father's death. So the court held that she could not inherit or obtain Social
Security survivor benefits.135
In May 2012, the Supreme Court finally ruled on the issue whether PM
children could receive Social Security survivor benefits of their deceased parent. In
Astrue v. Capato, the Court held that Social Security survivor benefits are
"[designed] to primarily benefit those supported by the deceased wage earner in his
or her lifetime."136 The Court ruled in favor of the SSA and required survivor
benefits to be determined by looking at each state's intestacy laws.137 This does not
bode well for PM conceived children living in some states. For example, in North
Carolina PM conceived and born children applying for their parent's Social Security
survivor benefits will probably be denied such benefits. North Carolina law does not
recognize children born ten months or more after their parent's death as the legal
heir of the deceased parent.138
135 Williams, 2010, at 188. 136 Astrue v. Capato at 2026. 137 Id. at 2027. 138 N.C. Gen. Stat. § 29-‐9
44
D. Estate Law
In cases of estate disbursement, the decedent’s heirs are likely to pursue
judicial remedies to prevent PMGR or PVGR procedures or subsequent use of the
retrieved gametes.139 In this area, there are tensions between a posthumous born
child's right to inherit from the deceased parent and the pre-‐existing heirs’ right to
receive their deceased parent's property. The courts are sympathetic to both
parties. The case law shows that the courts can be torn between recognizing that
posthumously born children deserve "all the love, respect, dignity, and legal
protection" that other children receive, and recognizing that estates cannot remain
open indefinitely.140
PMGR and PVSGR have the potential to destroy the thousands year old
process of determining one's heirs.141 Traditionally, the process to determine one's
heirs was fairly straightforward. The female's heirs were determined upon her
death and the male's were determined within a 10-‐month period after his death. But
gamete retrieval situations introduce the possibility that one's heirs may never fully
be determined. Some states have begun addressing this problem while others are
woefully lagging.142
For example, as noted above, North Carolina has a statute that "if read
strictly" would prevent PM conceived children from inheriting from their parent.143
The statute, written in 1959, reads "Lineal descendants and other relatives of an
139 Ohl, 1997. 140 In re Estate of Kolacy at 1263. 141 Carpenter, 2012. 142 Id. 143 Id.
45
intestate born within 10 lunar months after the death of the intestate, shall inherit
as if they had been born in the lifetime of the intestate and had survived him."144
Postmortem born children exist in a legal limbo between being classified as
illegitimate and being classified as the decedent's heir. This has led several
commentators to conclude that legislation directly addressing the rights of
posthumous born children needs to be enacted.145
E. Case Law Addressing the Issue of Consent
Most of the cases involving issues that are analogous those arising from
PMGR and PVSGR do not directly address the issue of how the decedent's consent to
procreate after death can be proven. However, some generalization can be made
from the current case law. The current case law addressing the broader issue of PM
conception suggests that most courts will strive to honor the reproductive choices
of the deceased individual. The courts will try to discern whether the deceased
individual intended or consented to procreate posthumously. If the decedent's
intent cannot be clearly discerned, the courts tend to not allow the posthumous
procreation.
Some of the case law supports that explicit written patient consent to PMGR
or PVSGR should be honored and that silence should not necessarily be construed as
intent. For example, in Hecht, the decedent had given his explicit consent through
multiple written documents expressing his intent for his girlfriend to use his sperm
after he died. If the Hecht case were used as the basis of implementing a hospital 144 N.C. Gen. Stat. § 29-‐9; 145 Elliot, 2004; Katz, 2006.
46
PMGR and PVSGR policy, then the policy would need to focus on the deceased
patient's intent to procreate posthumously.
Although the case law emphasizes the deceased's intent to procreate
posthumously, the case law does not clearly answer what type of consent
adequately shows the patient's intent, i.e. explicitly written, explicitly stated or what
the patient would have wanted. Instead, the cases require that the decedent's
"actual intention,"146 the decedent's “unequivocal intention"147 or the decedent's
"true intention"148 be proven before the deceased individual's gametes are to be
used. In Woodward v. Commissioner of Social Security, the court required the
deceased's pre-‐mortem consent to be "clear and unequivocal" and stated that
"silence or equivocal indications of a desire to parent posthumously" did not
constitute consent.149 While all of these intent requirements are vague standards for
determining consent, hospital policies requiring explicit written consent appear to
satisfy the intent standards used by the courts.
Current case law has provided some answers to the concerns arising from
PMGR and PVSGR. For example, the Court has determined that the U.S. Constitution
contains an implied right to procreate. In Hecht, the court determined that requests
to receive pre-‐mortem stored gametes did not violate public policy and that the
deceased have the right to control the disposition of their gametes. In Capato, the
Supreme Court held that the Social Security Administration may look at the state
intestacy laws of the deceased individual to determine survivor benefits.
146 Hecht v. Superior Court at 851. 147 Id at 857. 148 AZ v. BZ at 158-‐59. 149 Williams, 2011, at FN. 39.
47
Although case law has provided some answers, the courts can only do so
much. They are limited because they "can only address the specific circumstances of
each [PMGR and PVSGR] controversy that presents itself."150 Instead PMGR and
PVSGR concerns may be better addressed by "a comprehensive response reflecting
the considered will of the people."151 What this comprehensive response would look
like is largely outside the scope of this thesis, but I believe that hospital PMGR and
PVSGR policies play a crucial role in this response.
150 Woodward v. Commissioner of Social Security at 557. 151 Id.
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CHAPTER 4: SOCIAL POLICY AND PRACTICAL CONSIDERATIONS
There are at least three overarching social policies implicated by PMGR and
PVSGR. The first social policy encourages the respectful treatment of the dead. The
second social policy encourages the protection of children's welfare. The third social
policy encourages organ donation, from the deceased and living. In addition to social
considerations, the practical considerations of PMGR and PVSGR must be addressed.
A. Respect for the Dead
There appears to be a "near universal respect for the dead body" and a deep
"innate [human] drive to recover bodies so they may be given a proper burial."152
The courts in the U.S. have created special quasi property rights (discussed in the
previous chapter) in dead bodies. These special property rights recognize that
"indignities to the human body may violate the...well-‐being of the deceased's kin."153
In addition, quasi property rights grant the deceased's family the right to sue for any
unauthorized mutilation of the dead, any unauthorized autopsy, and a right to
control the deceased's remains when the deceased is silent on the matter.154
While "the dead are not usually thought of as having rights that survive
death...procreative rights" may be the exception. 155 Our society has placed
importance on honoring the wishes of the dead, often thinking of the dead as
152 Orr, 2002, at 300, 301. 153 Schiff, 1997, at 926. 154 Id. 155 Katz, 2006, at 311.
49
something other than a corpse.156 The argument against PMGR and PVSGR is that we
as a society respect the dead and should not violate this policy by allowing PM or
PVS retrievals. The deceased can be disrespected by PMGR in two ways. The first is
if the PMGR procedures result in unnecessary physical violation of the dead body.
For example, an unnecessary physical violation can occur if the body is
unnecessarily mutilated to retrieve the gametes. The chosen method of PMGR may
raise issues about the respectful treatment of deceased patients.157
Some argue that PMGR procedures should be allowed because they are
analogous to autopsies. Although it may be true that autopsies mutilate corpses
more than PMGR, the two procedures enjoy different levels of public approval.
Autopsies are widely accepted by society as a permissible violation of the human
body.158 We, as a society, allow autopsies to be performed because we recognize the
good that may result from the autopsy. Gamete retrievals, on the other hand, are
probably not widely accepted by society as a permissible violation of the dead.
Another way the dead can be disrespected is if PMGR is used to rush
procreation in an attempt to relieve an intimate partner's (or family member's)
grief. As discussed in Chapter 2, using PMGR to relieve grief should not be allowed
unless it is accompanied by the deceased's explicit consent. In at least one hospital,
evidence shows that many retrieved gametes are not used.159 The requestors may
think PMGR or PVSGR is a good idea at the time because the requestor may want to
use the gametes in the future to conceive a child. However, if the requestor "decides
156 Id. at 312. 157 Orr, 2010, at 299. 158 Id. at 300. 159 NY Hospital Guidelines .
50
not to use the [gametes] to conceive a child [the corpse] would have been violated
for no other reason than to give [the requestor] reproductive peace of mind."160
B. The Welfare of the Prospective Child
The policy argument that receives the most attention stems from concern for
the wellbeing of the resulting PM or PVS born child. In the U.S. there is an
"overriding legislative concern to promote the best interests of children."161 The
courts have a history of protecting minor children from harm.162 Many people have
argued that society is harming the child to be by allowing PMGR and PVSGR to
occur. According to this argument, posthumous and PVS procreation will harm the
child because the child will only have one parent. One commentator asserts that the
most important type of parents a child can have are "social parents."163 She argues
that children need parents who will be committed to raising the child. Therefore,
PMGR and PVSGR should not be allowed unless the individual's consent "meets the
test of absolute certainty" because PMGR and PVSGR ensures that the deceased or
PVS individual will "not be available to be an actual or social parent."164 While I do
believe that single parents can raise their children just as well as two parents, I
question whether a parent is fulfilling his or her role as a parent when he or she
agrees to PMGR or PVSGR, thereby intentionally choosing not to be a part of the
child's life. 160 Williams, 2010, at 197. 161 Woodward v. Commissioner of Social Security at 546. 162 Id. ("The protection of minor children, most especially those who may be stigmatized by their `illegitimate' status ... has been a hallmark of legislative action and of the jurisprudence of this court.") 163 White, 1999, at 360. 164 Id.
51
Another argument is that the PMGR or PVSGR born child is harmed because
he or she will suffer knowing that they were born through nontraditional methods.
While it is true that we may not fully understand the psychosocial effect PMGR and
PVSGR has on children, it is unreasonable to assume that all children born from
these methods suffer and are harmed. In addition, the argument is problematic
because without this type of procreation the child would never have been born, and
the life of the child is a net benefit, not a "harm". Furthermore, this argument fails to
take into consideration the benefits the child will experience.165 Whether classifying
the effect on the child as harm or not, the effect PMGR and PVSGR may have on the
child should be considered.
One child welfare argument I think should be considered and that is of
immediate concern is that a PMGR or PVSGR born child may be harmed by the
current ambiguity in the law. Although some state legislatures have insisted that all
children will be "entitled to the same rights and protections of the law" regardless of
the accidents of their birth, the reality (as discussed in the previous chapter) is that
PMGR and PVSGR born children may not be entitled to the "financial support from
their parents and their parents' estates."166 If a child is born into the world without
full protection and benefits of the law, then that child is unfairly being denied
opportunities that other children (conceived through traditional means)
automatically receive. This, at least on its face, seems unjust and an undesirable
policy to advocate. Legislation is probably needed to address this concern, although
what this legislation would look like is not within the scope of this thesis. 165 Strong, 2006, at 162. 166 Woodward v. Commissioner of Social Security at 546.
52
C. Comparing PMGR and PVSGR to Organ Donations
A tempting, and understandable, argument can be made that PMGR and
PVSGR is analogous to organ donations and, therefore, should be treated the same
way.167 According to this argument, if a deceased or PVS individual has previously
consented to being an organ donor then the individual can be said to have also
consented to PMGR and PVSGR. Some evidence does support that there is a
"significant association between supporting posthumous reproduction and being an
organ donors."168 It is unclear whether organ donors also support PMGR and PVSGR.
In some ways organ donations and gamete retrievals are very similar. Both
procedures are highly intrusive. Both procedures are performed on the living and
dead. Both procedures involve taking tissue from one person and giving it to
another person. However, just because organ donations and gamete retrievals may
appear analogous does not mean that the two procedures should be treated the
same way.
I think that it is a leap to assume that consent to organ donation can be
construed as consent to PMGR and PVSGR. There are some key differences that
separate gamete retrievals from organ donations. First, the tissue transferred in
organ donations is different from the tissue transferred in gamete retrievals. Organs
have already come into being and no longer have the potential of being something
167 Ohl, 1997, at 893. 168 Barton, 2012, at 739.
53
else. Gametes, in contrast, can be used to produce a new human being; they are
rudimentary building blocks that represent "the ultimate in...potentiality."169
Second, organ donation's goals are different from gamete retrieval's goals.
Some goals of organ donation are to extend a recipient’s life or to increase the
overall health of a recipient. In contrast, the goal of PMGR and PVSGR is to create a
new PM or PVS born child. Third, the level of responsibility owed to the retrieved
materials is different. Organ donors owe no legal or moral responsibility to their
donated organs. In contrast, "there is a...great responsibility" owed to children
created from PMGR and PVSGR.170 Fourth, the consequences of the organ donation
and gamete retrievals are different. An organ donation has "very little ongoing
consequence to deceased [individuals] or their family."171 In contrast, gamete
retrievals can have "major consequences" for deceased individuals and their
families. 172 Gamete retrieval and subsequent procreation "is central to an
individual's identity in a way that organ donation is not."173
D. Practical Considerations
So far, this thesis has only addressed the ethical, legal, and social policy
aspects of PMGR and PVSGR. However, there are also some important practical
considerations that arise from PMGR and PVSGR. The practical considerations, while
widespread, are best discussed in the hospital setting because hospitals are
169 Schiff, 1997, at 919 (quoting Kass v. Kass). 170 Ohl, 1996, at 893. 171 Orr, 2010, at 301. 172 Id. 173 Bahadur, 2002, at 2773.
54
organizations directly affected by PMGR and PVSGR. As hospitals have begun
implementing PMGR and PVSGR policies that address these concerns, they have
been forced to address the practical considerations of the PMGR and PVSGR.
The practical considerations include operational issues such as: feasibility of
the retrievals, the costs associated with the retrievals, managing the differing
medical team opinions, and the proper role hospitals should play in the procedures.
Hospitals are concerned with providing excellent health care services to the
public. This goal has two components: the medical component and the business
component. Both must be addressed if a hospital hopes to provide and continue
providing excellent care. Therefore, the pragmatic business side of PMGR and
PVSGR should not be dismissed.
As a business, hospitals strive to run a smooth and efficient health care
operation. For example, one of Wake Forest Baptist Medical Center's goals is to
promote "operational effectiveness." 174 Duke University Hospital emphasizes
teamwork to "achieve common goals."175 The University of North Carolina Hospitals
is dedicated to creating a "system of care that is efficient, of high quality, safe and
easy to navigate."176 To have these goals is one thing but to actually achieve them is
entirely different. Hospitals are extremely complex businesses. Policies can be used
to guide organizational behavior and alleviate some of the confusion and
inconsistencies that commonly plague hospitals.
174 WFBMC Mission Statement. 175 Duke Hospital Mission Statement. 176 UNC Hospital Mission Statement.
55
Hospitals employ large numbers of health care professionals, and these
professionals may have varying, or conflicting, opinions about the permissibility of
PMGR and PVSGR. Some physicians believe that the very idea of PMGR and PVSGR is
absurd; others believe that the procedures merit serious consideration. If the
ultimate decision whether to honor PMGR and PVSGR requests is left up to the
physicians receiving the requests, and the hospital has not issued any guidance on
how the physicians should decide, then factually identical PMGR and PVSGR
requests received on different days may be treated differently. This inconsistent
decision-‐making is inefficient because it leads to confusion among employees. In
addition, inconsistent decision-‐making may reflect poorly on the hospital if the
physicians' decisions are contrary to the hospital's general goals and image.
Furthermore, it may expose the hospital to unanticipated litigation.177
To avoid inconsistent responses to similar PMGR and PVSGR requests,
hospitals must ensure that their staff is fully informed as to how they expect PMGR
and PVSGR requests will be handled and decided. This goal can be accomplished by
implementing a PMGR and PVSGR hospital policy. Like most hospital policies, PMGR
and PVSGR policies should be designed to provide hospital employees with a
decision-‐making framework.
Another practical matter hospitals need to be concerned with is the costs
associated with PMGR and PVSGR, i.e., gamete retrieval costs, storage costs, and the
177 I am assuming here that hospital policies can be used to guide behavior, thus making it more predictable. The hospital can issue a policy and reasonably assume that their employees are following the guidelines contained in the policy. Hospitals can look at their policy and identify what part of that policy may lead to litigation. In contrast, when hospitals do not have a policy they may have no idea what certain employees are doing and cannot predict with reasonable certainty problem areas.
56
ART costs. This whole process can cost "several thousands of dollars."178 Insurance
will probably not cover these costs, so the requestor will pay out of pocket.179 The
hospital needs to make sure that it is able to secure reimbursement for the
procedures. Implementing a PMGR and PVSGR policy requiring the gamete retrieval
requestor to arrange for and pay for all the services ensures that the hospital does
have to pay for the services.
Hospitals must also determine whether they can feasibly comply with PMGR
and PVSGR requests. If a hospital does not have the technology or specialists to
perform a PMGR and PVSGR then they must deny all such requests or figure out a
way to honor future requests.180 In addition, hospitals must determine what medical
retrieval techniques will be used and if they can safely and effectively deliver the
retrieved gametes to a storage facility. PMGR and PVSGR are not easily performed
and require special equipment. Also, the hospital must determine whether they have
the appropriate staff to comply with requests. Often, the medical team is made up of
specialists. These specialists must be readily available because PMGR must occur
within a short window of time. Hospitals must design policies that take into account
all of these practical considerations.
178 Soules, 1999, at 363. 179 Id. 180 Id.
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CHAPTER 5: HOSPITAL PMGR AND PVSGR POLICIES
This chapter is intended to demonstrate how hospital policies respond to the
complex ethical, legal, social, and practical considerations arising from PMGR and
PVSGR. There are at least two ways hospital policies approach PMGR and PVSGR.
The policies can restrict PMGR and PVSGR or they can permit PMGR and PVSGR.
Restrictive policies make honoring PMGR and PVSGR requests and/or subsequent
use less likely, while permissive policies make honoring PMGR and PVSGR request
and/or subsequent use more likely.
Evidence shows that even permissive policies reduce the number of PMGR
and PVSGR requests honored.181 Therefore, the analysis between permissive and
restrictive approaches is not whether a policy reduces the likelihood of honoring
PMGR and PVSGR, but how likely a policy is to reduce PMGR and PVSGR as
compared to another policy. So, while permissive policies reduce PMGR and PVSGR,
restrictive policies most likely further reduce the number of requests.
Many PMGR and PVSGR policies may be considered restrictive if they require
the hospital to reject PMGR or PVSGR requests according to certain exclusion
criteria contained in the policy (e.g., requestor exclusions, recipient/requestor
exclusions, time exclusions, etc.) Permissive policies often contain some of these
exclusions, but these exclusions are either not as numerous or they are less
demanding than those contained in restrictive policies.
181 Tash et al., 2003.
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Different hospitals often take different approaches when drafting their
exclusion criteria. This chapter presents and analyzes the exclusion criteria used by
eleven hospitals.182 A table of the exclusion criteria of these eleven hospitals is
provided at the end of this thesis.183 The number of exclusion criteria and/or the
burden of these criteria clearly make some of these hospital PMGR and PVSGR
policies more restrictive than the other policies. These identified exclusion criteria
are then analyzed according to how they address the ethical, legal, social policy, and
practical considerations arising from PMGR and PVSGR.
A. Restrictive and Permissive Policy Approaches
Hospital policies addressing PMGR and PVSGR generally take one of two
approaches: a restrictive approach or a permissive approach. The terms
"restrictive" and "permissive" should not be understood as "unconditionally
restrictive" or "unconditionally permissive." An unconditionally restrictive policy
would never honor a gamete retrieval request. Unconditionally restrictive policies at
the hospital level are probably informal, unwritten, and therefore undocumented.184
Some countries have adopted nationwide these policies and completely prohibit
182 I have collected policies, draft policies or received responses about their policies from the following: Arkansas Children's Hospital ("Arkansas"), The University of Virginia ("Virginia"), The University of North Carolina Hospital ("UNC"), Duke, Tuft's Lahey Clinic ("Lahey Clinic"), East Carolina University's Brody School of Medicine and Pitt County Memorial Hospital ("ECU"), Northwestern Memorial Hospital ("Northwestern"), Oregon, Wake Forest Baptist Medical Center ("WFBMC"), Cornell's NY Hospital Guidelines ("New York Guidelines"), Oregon Health and Science University ("Oregon"), and the University of Washington Hospital ("Washington"). 183 See Appendix I. 184 I found no discussion of hospitals that have a completely restrictive policy. From my correspondence with various hospitals I have determined that a completely restrictive policy will probably be unwritten. I can only guess at the reasons but these policies may be unwritten to not draw attention to them.
59
PMGR and PVSGR.185 Unconditionally restrictive policies raise serious questions
about patients' autonomy and reproductive freedom. As addressed in Chapter 2,
there are valid reasons why PMGR and PVSGR procedures should be allowed in
specific circumstances.
In contrast, an unconditionally permissive policy would honor all requests
made. Few commentators have argued for a completely permissive approach.186
This approach also raises serious questions about the importance of patient
autonomy because it would allow another party to make PMGR and PVSGR requests
regardless of the deceased or PVS patient's wishes.
The restrictive approach and the permissive approach can be thought of as
existing along a sliding scale. On this sliding scale, a restrictive policy may decrease
the likelihood that PMGR or PVSGR procedures are performed while a permissive
policy may increase the likelihood that PMGR or PVSGR procedures are performed.
Even permissive PMGR or PVSGR policies may "dramatically reduce the number of
[procedures] performed."187 Many hospital policies will probably contain certain
types of exclusions that may reduce the number of honored requests or subsequent
use of retrieved gametes. Some common types of exclusions seen in hospital policies
are: consent exclusions, requestor exclusions, time exclusions, and economic
exclusions.188
Both restrictive policies and permissive policies claim to honor patient
185 Epker et al., 2012, at 1072. 186 Katz, 2006, at 302. 187 Id. at 301 188 See Appendix I.
60
autonomy by doing what the patient wanted. However, the two approaches disagree
over how patients' autonomy is sufficiently protected.
PMGR and PVSGR policies drafted using the restrictive approach often
require the patient to explicitly consent to PMGR and PVSGR before dying or
entering PVS. In addition, it is common for restrictive policies to require the patient
to identify who is authorized to use the retrieved gametes. Some restrictive policies
assert that the patient's autonomy is promoted through the patient's pre-‐death or
pre-‐PVS consent. The restrictive approach places the burden on the deceased or PVS
patient to opt in to the procedure by making his or her wishes to have PMGR or
PVSGR explicitly or clearly known.189 If the patient was silent on the matter, the
silence is construed as a choice to not have PMGR and PVSGR. Restrictive policies
may "give absolute preference" to the patient's explicit directions and limits the
surrogate decision maker's power to consent to PMGR or PVSGR.
Permissive policies recognize that some unwritten evidence may adequately
indicate the patient's wishes for PMGR and PVSGR. Permissive policies recognize
that relying on evidence presented by those who knew the patient's desires and
wishes could honor a patient's wish for PMGR or PVSGR, even though the patient
has not provided explicit written evidence of his or her wishes. If the patient was
silent on the matter, the silence does not necessarily indicate that the patient is
against the procedure and posthumous creation. Instead, some permissive policies
would allow the surrogate decision maker to consent using the substituted
judgment standard. The permissive approach places the burden on the individual
61
who does not desire posthumous reproduction to opt out of the procedure by
making his or her wishes not to have a PMGR or PVSGR clearly known. The
permissive approach usually gives the surrogate decision maker the ability to
interpret the patient's unwritten wishes or use substituted judgment.
I think that hospitals with permissive policies run the risk of engaging in "a
great deal of guesswork in determining what the decedent wanted."190 The medical
team may need to rely heavily on evidence of the patient's wishes that is "colored by
the interests, motivations, and purposes of those who are seeking to use the
[gametes]."191 In contrast, while a restrictive policy that requires patients' written
explicit patient consent to PMGR and PVSGR may "ignore the desire of others," the
approach is preferable because it "has the virtue of a bright line rule and avoids
speculation about the deceased's intentions."192 This bright line rule can "provide
clarity and certainty" to medical teams who receive PMGR or PVSGR requests.193 A
restrictive policy may be the only surefire way to respect the deceased or PVS
patient's autonomy because anything beyond the patient's explicit written consent
would "call for prescience [decision-‐making] beyond anyone's abilities."194
B. Comparing Hospital Policies Exclusion Criteria195
All the policies and responses I reviewed contain some type of exclusion that
may prohibit PMGR or PVSGR in certain instances. However, just because a policy
190 Katz, 2006, at 304. 191 White, 1999, at 359-‐60. 192 Katz, 2006, at 307. 193 Id. at 316. 194 Id. 195 See Appendix I.
62
contains a type of exclusion does not necessarily mean that the policy should be
viewed as restrictive. Several of the policies I collected are clearly more permissive
than the other policies even though they contain some exclusions. The most
common types of exclusions in the policies collected were: consent exclusions,
requestor exclusions, time exclusions, economic exclusions, gender exclusions,
medical team exclusions, and disease or viability exclusions. Some of the policies
had additional requirements that may affect whether a PMGR or PVSGR request is
honored and whether the gametes are used.
Consent Exclusions
The most obvious exclusions in hospital policies are the consent exclusions.
The policies range from requiring explicit written consent by the patient to allowing
a legally authorized individual to make treatment decisions on behalf of the patient.
The most common type of consent required by the policies was explicit written
patient consent. Six of the policies collected clearly indicated that only explicit
written patient consent for these procedures would be honored.196 Without this
consent, PMGR or PVSGR would not be performed absent a court order. One policy
generally requires explicit consent but did concede the possibility that other
evidence may be considered in rare cases.197 Finally, two policies give preference to
the patient's written consent, but allow other forms of consent to be used when the
196 The six policies are: Arkansas, Virginia, UNC, Lahey Clinic, ECU, and Washington. In addition, Duke may not even perform the procedures. 197 Personal communications (Email response from Northwestern concerning their draft policy).
63
patient's wishes are not written or unknown.198
Of all the hospital policies I analyzed, Tufts University's Lahey Clinic has the
strongest consent exclusion criteria. Lahey's policy consists of a two-‐step consent
exclusionary process. First, Lahey requires written and notarized patient consent to
PMGR and PVSGR. Second, Lahey requires another person to authorize the
retrievals. If the patient dies, the patient's next of kin must authorize the retrieval. If
the patient enters PVS, the patient's surrogate decision maker must authorize the
retrieval. This two-‐step consent is unique and probably further decreases the
likelihood that PMGR and PVSGR requests will be honored.
Some of the consent requirements are very demanding on the patient. Both
Arkansas Children's Hospital and the University of Virginia require prior written
patient consent that clearly indicates the patient's wishes. In addition, the consent
must be signed, witnessed by two non-‐interested adults, and notarized. The
University of Virginia's policy additionally requires the patient to state his or her
willingness or unwillingness to be recognized as a parent of the children born from
the retrieved gametes.
The University of North Carolina's gamete retrieval consent requirements
are less demanding. The patient must execute a written document that identifies
who is allowed to consent to a collection request and the document must authorize
the named individual to use the collected gametes. East Carolina has a similar, but
unwritten policy. East Carolina's unwritten policy is to not retrieve gametes unless
the patient has executed an advance directive allowing for the procedure after
198 The two policies are: Oregon and WFBMC.
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death. Duke Hospital does not have a policy and it is unclear whether the hospital
permits PMGR and PVSGR.
Northwestern University is currently drafting a gamete retrieval policy.
Northwestern's policy will define consent more broadly than the above policies. In
most cases, Northwestern will only allow PMGR if there is an advance written
authorization for the retrieval by the patient. However, in "only extremely rare
circumstances" Northwestern will look at "compelling non-‐written evidence of the
individual's wishes."199
The hospitals with the least exclusionary consent criteria are Oregon Health
and Sciences University, NY Hospital, and Wake Forest Baptist Medical Center.
OHSU's policy allows the deceased or PVS patient's domestic partner to request
PMGR if the partner has "clear and specific" evidence of the patient's intent
evidenced "by writing or verbal expression."200 The NY Hospital Guidelines allow
the patient's previous actions and expressions to be used as evidence of the
patient's intent to have PMGR.
Wake Forest Baptist Medical Center's draft policy appears to contain the
least restrictive consent exclusion criteria. Wake Forest's policy would let the
"patient's legally authorized representative" consent to PMGR or PVSGR.201 The
legal representative may consider the "previously expressed wishes of the patient"
to determine whether the patient wanted PMGR or PVSGR.202 If there are no known
previously expressed wishes, then the representative may "rely on [his or her own]
199 Personal communications (Quoting an email response I received from Northwestern). 200 OHSU Policy 201 Wake Forest Baptist Medical Center Policy. 202 Id.
65
knowledge of the patient's beliefs, values, and preferences" to determine whether
the representative should consent to the procedures.203
Requestor Exclusions
In addition to consent exclusions, most restrictive policies limit who may
make gamete retrieval requests or who may use the retrieved gametes. Many of the
policies that require explicit writing also require that the patient indicate in writing
the person who may request and receive their gametes. For example, Virginia,
Carolina, and Lahey all require the patient to name the individual who may request
and receive their gametes.
Some of the policies further limit the requestors to non-‐biologically related
individuals. For example, NY Hospital, the University of Virginia Health Systems,
Wake Forest Baptist Medical Center, and the University of North Carolina Hospital
all limit requestors to either the patient's wife or intimate partner.204
Other policies may allow patients' family members to make PMGR and
PVSGR requests. Lahey, East Carolina, and Oregon all permit patients' parents and
other family members to make a request. Lahey's policy allows the patient to name
anyone the patient wishes.205As long as the patient explicitly states who may receive
his or her gametes, Lahey does not judge the appropriateness of the chosen
203 Id. 204 Although, Virginia and UNC do not define partner, WFBMC's draft policy does. According the this policy an intimate partner is "a person who has a long term sexual or romantic relationship with the patient, including a spouse, "common law" spouse, fiancée, or partner in a long-‐term same sex relationship." 205 Lahey Policy (States that no judgment will be made as to who was named as the recipient identified by the patient).
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individual.206 ECU's unwritten policy is to allow "a wife, mother or girlfriend" to
make a PMGR request.207
Time Exclusions
Time exclusions are also commonly used in PMGR and PVSGR hospital
policies and may reduce the likelihood of the procedures. There are two different
types of time exclusions. The first denies PMGR requests made past a specified time.
Some hospital policies restrict how long after death a PMGR procedure may be
performed. For example, both Carolina and NY Hospital allow retrievals only within
a 24-‐hour period from the time of the patient's death. Restricting retrievals to this
window of opportunity may increase the viability of the retrieved gametes.
However, there is at least some evidence that sperm is viable beyond this 24-‐hour
window.208
The second time exclusion prevents the retrieved gametes from being used
until a certain time. Some policies may impose a mandatory waiting period before
the retrieved gametes may be used for procreative purposes. A commonly seen
required waiting time is one year. Both Virginia and Cornell all require a one-‐year
wait, while Carolina recommends a 1-‐year waiting period. Even Oregon's policy,
which is one of the more permissive policies, requires a 3-‐month waiting period
before the retrieved gametes may be used. In addition, a mandatory waiting period
may be imposed if there is a conflict between interested parties; some policies
206 Lahey Policy. 207 Personal Communications (Quoting an email response I received from ECU about whether they have a PMGR policy). 208 Shefi, 2006.
67
exclude any retrieved gametes from being used until the conflict is resolved. Lahey,
Virginia, and Oregon policies all have conflict resolution exclusion criteria.
Oregon's policy in directed donation situations is to retrieve the patient's
gametes and then hold the retrieved gametes for a maximum of 72 hours to allow
for the requestor to provide evidence of the written directed donation. If the
evidence cannot be provided, the hospital will destroy the gametes.
Economic and Other Exclusions
By far, the most prevalent exclusion among all the policies I collected is
economic exclusions. Almost all of the policies contain criteria requiring someone
other than the hospital to pay for the costs associated with the retrieval, storage,
and use of the gametes. This excludes individuals unable to afford the associated
costs from successfully requesting PMGR and PVSGR.
Some of the hospital policies either require or encourage the individual
making the request to go through counseling before using the retrieved gametes.
While this practice may not necessarily exclude a requestor from eventually using
the retrieved gametes, the end result may be to discourage the requestor from using
the retrieved gametes. For example, one hospital discovered that "appropriately
counseled women...rarely proceed with an attempt at pregnancy."209
At least one policy excludes the PMGR or PVSGR from being performed if the
physicians determine that the patient's condition may affect the viability of the
209 New York Guidelines.
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gametes.210 Several of the policies allow the retrieved gametes to be excluded from
being used if there is the possibility that some condition or disease will be passed on
to the subsequent child.211
Finally, some policies exclude PMGR and PVSGR performance based on
seemingly arbitrary criteria. At least one policy prohibits PMGR or PVSGR if the
patient was not the clinic's patient before dying or entering PVS.212 Another policy
prohibits PMGR or PVSGR if the patient is not a resident of the state.213 These may
have been included to address some valid concerns such as preventing PMGR and
PVSGR tourism across hospitals and states, but those concerns appear remote and
highly unlikely.
C. How Hospital Policies Address the Concerns of PMGR and PVSGR
An important question to ask is whether hospital policies are addressing the
concerns arising from PMGR and PVSGR. The analysis below is intended to show
how certain hospitals treat these key issues.
Autonomy
The hospital policies I reviewed all appear to be driven by the overarching
ethical issues. All of the policies, whether restrictive or permissive, are concerned
with patient autonomy, beneficence, and nonmaleficence. All of the policies appear
to indicate that there are some reasons to support procreation after death, because
210 UNC Policy. 211 UNC Policy; OHSU Policy. 212 Lahey Policy. 213 Arkansas Policy.
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they all allow PMGR and PVSGR in at least some instances.
Policies can address the issue of patient autonomy in different ways.
Restrictive policies take the fact finding out of the hospital's hands and may be less
burdensome on physicians, because they would not need to speculate whether
PMGR and PVSGR is something the patient wanted or would have wanted. In these
policies, the patient is the ultimate decision maker. However, the patient needs to
make that decision before dying or entering PVS because the restrictive policies
often prevent non-‐explicit evidence from being used to show the patient’s wishes to
have PMGR or PVSGR. Restrictive policies, like the University of North Carolina’s,
require explicit pre-‐mortem or pre-‐PVS directives permitting the procedure to be
performed and designating the recipient to use collected gametes gametes. Some of
the policies may impose additional consent requirements on the patients. For
example, Virginia's policy requires the patient to consent to the procedure in writing
and then have the writing witnessed and notarized. This may be asking a lot of an
individual who does not normally need to get a document witnessed and notarized
before choosing to procreate.
Permissive policies may encourage patient autonomy but in a different way.
Permissive policies allow others to consent to PMGR or PVSGR on behalf of the
patient. For example, Wake Forest's draft policy would allow the patient's legally
authorized representative to make the PMGR or PVSGR choice for the patient. Wake
Forest's policy appears to recognize that it may be unrealistic to require individuals
to draft written documents that explicitly make their wishes of PMGR and PVSGR
70
known. Instead, Wake Forest attempts to enable the patient’s spouse or intimate
partner to make a choice based on the patient's life statements and actions.
While it may be true that actions and past statements can show a person's
wishes, I question whether someone else can recognize the crucial past actions and
properly interpret those actions to reach the decision the patient wanted or would
have made. Evidence suggests that patients showing such a strong desire to
procreate while alive may lead their intimate partner to incorrectly assume the
patients wishes in the event of death or PVS.214
Some policies also appear conflicted over the proper treatment of patient
autonomy. For example, Lahey's policy appears to advocate a PMGR and PVSGR
patient's autonomous choice while also limiting his or her autonomous choices. In
PMGR and PVSGR situations, the Lahey Clinic requires explicit consent by the
patient before PMGR or PVSGR is performed. However, the policy also requires the
deceased's next of kin (in PMGR situations) or the surrogate decision maker (in
PVSGR situations) to authorize the procedures. As a result, it appears that, at least in
some situations (such as when the patient and partner are not married), the Lahey
Clinic takes away the patient and the patient's intimate partner's autonomous
decision to create a PM or PVS born child and places those wishes in the hands of
another individual.
Respect for the Dead
The University of North Carolina's policy may indicate a greater concern with 214 Nakhuda, 2010, at 1463-‐64. (Female partners accurately predicted their male partners’ preferences 79% of the time, whereas the male's predictions where accurate 71% of the time.)
71
the respectful treatment of the dead than some of the other policies. The policy
states that any PMGR or PVSGR request may be rejected if the "circumstances...affect
the efficacy of gamete collection or use."215 It may be a stretch, but by allowing a
denial based on efficacy, the policy appears to be unwilling to unnecessarily disturb
the deceased or PVS patient's bodies.216
Wake Forest's draft policy appears to be concerned with how arbitrarily
performed PMGR and PVSGR procedures may show a lack of respect for the dead or
PVS patient. WFU's policy requires that a PMGR or PVSGR procedure to be
performed if the "purpose is to pursue conception."217 This suggests that WFU will
only perform the procedure if there is a reasonable indication that the requestor
will use the retrieved gametes to reproduce. By requiring a purpose before the
retrieval is performed, WFU appears to share Cornell's view that "retrievals without
likely use...could represent mutilation of the dead that may represent a lack of
respect."218
Treatment of Grief
Several of the policies acknowledge the effect that death or PVS has on loved
ones. Wake Forest recognizes that the death of a loved one may have "significant
physical, psychosocial, and spiritual" impact on the patient's intimate partner and
other family members. Wake Forest's policy would not require counseling but offer
215 University of North Carolina Policy. 216 Of course UNC's policy may instead be stressing beneficence by stressing that unnecessary, and potentially expensive treatment will not be performed unless UNC can reasonably predict a beneficial outcome. 217 Wake Forest Policy. 218 NY Guidelines.
72
support if needed. In stark contrast, Virginia's policy requires the intended recipient
of gametes to "[undergo] at least two sessions with a psychologist or
psychiatrist."219 These psychologist or psychiatrist will then need to provide "a
statement that the recipient is psychologically prepared to undergo [ART]
procedures."220
Instead of requiring counseling, some policies recommend or require a
waiting period. It is unclear how long it takes people to get over the loss of a loved
one. Often the grief is severe and clouds judgment. Evidence suggests that many
people are supportive of mandatory waiting periods, but are against ones lasting a
year or more. Possibly in an attempt to prevent grief-‐influenced gamete recipients
from immediately using their loved one's retrieved gametes, OHSU Health Care's
policy requires a three-‐month waiting period before a domestic partner can use
retrieved gametes. It is unclear why OHSU chose three months as an acceptable
waiting period, or how this requirement is enforced.
Organ Donation vs. Gamete Retrieval
As mentioned in Chapter 4, some evidence suggests that many people who
are organ donors are more likely to support PMGR or PVSGR.221 However, it would
be incorrect to assume that all organ donors support PMGR and PVSGR and believe
that consent to organ donation can be used in the absence of a deceased or PVS
patient's explicit written consent to PMGR or PVSGR. Only two of the collected
219 Finnerty, 2002, at 177. 220 Id. 221 Barton, 2012, at 739.
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policies directly address the issue of whether consent to organ donation is
indicative of the patient's desire for PMGR and PVSGR.
Oregon's policy directly addresses the comparison between organ donations
and gamete retrievals. Oregon's policy does not allow general organ donation cards
or registry to be used as proof that a deceased individual consents to a PMGR
procedure, unless the card or registry specifically allows the patient's gametes to be
retrieved. It is unclear why OHSU included this provision in their policy when most
of the policies collected do not address the issue. Oregon may be responding to a
recent court case where the court ruled that a man's consent to organ donation was
sufficient evidence to prove that he consented to PMGR.222
The New York Guidelines also directly addresses whether organ donation
can be expanded to include gamete retrievals. The guidelines recognize that PMGR
is "fundamentally different from organ donation."223 Therefore, consent to organ
donation alone cannot be used as proof that the patient wanted to procreate after
death.
The Child's Welfare
The concern for future children born from PMGR and PVSGR may be
addressed by the policies that contain a testing requirement. The University of
North Carolina's policy appears concerned that a patient's pre-‐existing disease or
condition may be passed through gamete use and may decline performing PMGR or
PVSGR on these grounds. It is unclear whether this restriction is due to general 222 Spielman, 2009. 223 New York Guidelines.
74
public safety concerns or out of concern for the resulting child.
None of the collected policies directly address concern for a child being
raised in a single household or the effect that not ever meeting one's genetic parent
may have on the child. This is understandable as these child welfare arguments are
highly speculative.
An interesting way that the child's welfare can be addressed is found in the
University of North Carolina's policy. UNC Hospitals will refer their PMGR and
PVSGR requestors to UNC's legal department for "legal advice about the status of
offspring conceived by [ART]" before the requestor is allowed to use retrieved
gametes.224 As previously mentioned, North Carolina's statute does not recognize a
child as being an heir of the deceased parent if that child is born more than ten
months after that parent's death.225 So sending the intimate partner to the legal
department may dissuade those determined to conceive their deceased or PVS
partner's child.
Potential Estate Conflicts
Several of the policies appear to contain provisions that could minimize the
estate problems stemming from PMGR and PVSGR. These policies state that if there
is a conflict between interested parties over the retrieved gametes, the gametes will
be stored until the conflict is resolved. The effect of having these criteria is threefold.
First, hospitals stay out of the legal mess (or at least do not make it worse).
Hospitals will hold the gametes until the courts tell them what they should do with 224 UNC policy. 225 N.C. Gen. Stat. § 29-‐9.
75
them. Second, requestors are comforted by the retrieval because they know that
they still have a chance to use them. Third, the living heirs have peace of mind
knowing that no future siblings will be born until the issue is resolved. All hospital
policies should consider including statements on how PMGR will be handled when
there is a conflict over the retrieval and use.
D. Key Concerns Hospital Policies Need to Address
I think the key concerns that all hospital PMGR and PVSGR policies must
address are deceased or PVS patients' autonomy and the type of consent needed for
PMGR and PVSGR. All of the other concerns are secondary to this one. I think that
policies that require patients' express written consent for PMGR and PVSGR are
superior at protecting patients' autonomy, because they better ensure that what the
patient wants is actually done. Without the patient's explicit written consent, "the
intentions of the decedent [and PVS patient] can only be the subject of
speculation." 226 Hospital policies that allow explicit non-‐written consent or
substituted judgment turn the medical team into a jury that must weigh the
evidence presented to them by the requestor. I think this result should be avoided.
The literature is rampant with questionable evidence some physicians (and
judges) accept as indicative of the deceased or PVS patient’s desire for PMGR or
PVSGR. For example, one physician performed a PMGR after the requestor
presented him with a tape of the deceased patient expressing a desire to have
children. This was the only evidence presented. I fail to see how this evidence shows
226 Nakhuda, 2011, at 1463.
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the patient’s desire to father children posthumously. In another case, PMGR was
performed after the deceased patient's mother presented evidence to a court that
indicated her now deceased 19-‐year-‐old son wanted to find a wife and start a family.
The evidence she used to support her claim was that her son had already named his
three future children. Once again, I fail to see how this type of evidence sufficiently
shows the patient's consent to PMGR or PVSGR.
At this point an argument is often made that surrogate decision makers are
allowed to make these decisions in other medical situations based on what the
patient wanted or based on substituted judgment, such as organ donation or end of
life decisions. But these decisions are different from PMGR and PVSGR.
The decision to pass on one's own genes is an intimate and deeply personal
decision. Although many people procreate by accident or without the intention to
create a child, they cannot claim that they did not know that consequences could
result from copulation. All competent mature people recognize, at least on some
level, that engaging in sex may result in the creation of a child. Whether people
accept the consequence is a different issue. In contrast, in PMGR and PVSGR, another
person is making reproductive decisions for the deceased or PVS patient. Without
express consent, the patient may or may not have recognized the consequences of
the act.
Besides the primary concerns, hospitals should address several other
concerns in their PMGR and PVSGR policies. I think that the following concerns
should be addressed, regardless of whether a hospital implements a permissive
policy or a restrictive policy. First, PMGR and PVSGR policies should address the
77
retrieval, storage, and subsequent use of gametes. The hospital must determine the
level of involvement it is willing to take. Each step in the process involves different
groups of individuals. The hospital must determine whether it has the duty to set up
and monitor the entire process or if that duty is delegated to the requestor. PMGR
and PVSGR policies are a good way to address these concerns. Second, every policy
should address the costs associated with PMGR and PVSGR. Third, until legislation
addresses the legal status of children born posthumously, PMGR and PVSGR policies,
should attempt to mitigate the harm caused to children born from PMGR and
PVSGR. I think this could be achieved by referring the gamete requestor or recipient
to the hospital's legal department so that the requestor is aware of the potential
consequences of using the retrieved gametes.
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CHAPTER 6: ALTERNATIVES TO HOSPITAL POLICY
So far this thesis has shown the complexity of the ethical, legal, social, and
practical concerns arising from PMGR and PVSGR procedures. I have argued that
hospital policies can be (and are) used to address the concerns arising from PMGR
and PVSGR. This thesis would be incomplete if I did not consider some alternatives
that could be used to address the ethical, legal, social, and practical concerns raised
by PMGR and PVSGR. The first alternative is to use legislation to regulate PMGR and
PVSGR. The second alternative is to use professional medical organizations to
impose guidelines on their members.
A. Government Legislation Alternative
PMGR and PVSGR are not just a concern in the U.S., but "appear on a
worldwide basis."227 Most of the issues raised by PMGR and PVSGR are universal.
Assisted reproduction is largely unregulated by the U.S. government. However, this
is not the case around the world. As a matter of fact, several countries around the
world have already used government legislation to ban or limit PMGR and PVSGR.
Several countries have prohibited PMGR and PVSGR outright through
legislation. Among these are Canada, Denmark, France, Germany, Hungary,
Netherlands, Norway, Slovenia, and Sweden.228 In Hungary, for example, the law
states that gametes coming from a dead body or dead fetus cannot be used for
227 Katz, 2006, at 294. 228 Epker et al., 2012, at 1072.
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assisted reproduction.229
Several countries have used legislation to limit PMGR and PVSGR requests. In
both the U.K. and the Czech Republic, the legislation requires that PMGR and PVSGR
patient must make their wishes known in writing.230 In the Czech Republic, PMGR is
allowed and practiced.231 However, children born from these means are not the
legal heirs of the decedent.232 In Australia, there is no government prohibition but a
court order must be obtained.233
I think that state legislation could address the concerns arising from PMRG
and PVSGR just as well as hospital policies. However, there are currently some
barriers and problems with using legislation that make hospital policies a more
suitable way to address the concerns. First, using state legislation to address the
concerns arising from PMGR and PVSGR procedures may be overkill. Some hospitals
receive a few requests a year, while other hospitals receive a few requests every
couple of years.234 Some hospitals do not even feel that the issue comes up enough
to draft policies on the matter.235 In addition, most of the general public is not even
aware that posthumous reproduction is a possibility, much less PMGR and
PVSGR.236 The concerns of PMGR and PVSGR are certainly important, but it is
unclear whether PMGR and PVSGR are common enough to warrant legislation.
229 Dotsal, 2005, at 2360. 230 Epker et al., 2012, at 1072. 231 Dotsal, 2005, at 2360. 232 Id. 233 Epker, 2012, at 1072. 234 Personal Communications with Northwestern Memorial Hospital, Wake Forest Baptist Medical Center, and the Brody School of Medicine. 235 Personal Communications with Duke and ECU. 236 Barton, 2012, at 739.
80
Second, allowing states to regulate PMGR and PVSGR procedures could be
inconsistent with the traditionally held (and judicially supported) belief that
individuals have the right to privacy, which includes the right to reproduce (and not
reproduce). State legislation on PMGR and PVSGR may unnecessarily intrude on this
right. Furthermore, Americans may be unwilling to let their states make their
reproductive decisions for them.237
Another problem with using government legislation is the complexity of
PMGR and PVSGR. This complexity may prevent state legislation from being enacted
for some time. Already at least one restrictive PMGR bill has been presented before
a state legislature and not made into a law.238 Adding to the complexity is the lack of
consensus in the literature on the type of consent needed for PMGR and PVSGR. It is
even unclear if there is a majority on the issue that can provide guidance to
lawmakers.
Although a complete analysis of how state legislatures can be used to address
the concerns arising from PMGR and PVSGR is not within the scope of this thesis,
there are a few ways that state legislation could, relatively easily, address some of
the concerns created by PMGR and PVSGR. First, a PMGR and PVSGR option can be
added as an option along with donor registration.239 This may help alleviate some of
the concerns of whether the deceased or PVS patient consented to PMGR or PVSGR.
237 Nakhuda, 2011, at 1464; Katz, 2006, at 299. 238 Cohen, 1998. 239 Nakhuda, 2011, at 1466.
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Second, state legislatures could amend their state's advance directive legislation to
include PMGR and PVSGR.240
Although it is not clear to me whether legislation specifically addressing
PMGR and PVSGR is necessary at this point in time, I do think that state legislation
could address the concerns arising from PMGR and PVSGR. Unfortunately, I do not
think that PMGR and PVSGR legislation will be implemented within the foreseeable
future. So, until such legislation shows promise, hospital PMGR and PVSGR policies
are the best option to sufficiently address the concerns arising from the procedures.
PMGR and PVSGR policies can then be used as stepping-‐stone if it is later
determined that we need a bigger and better solution to the problems of PMGR and
PVSGR.
B. Professional Medical Organization Alternative
A second alternative to using hospital policies to guide decision-‐making is to
use professional organizations to guide PMGR and PVSGR.
The first problem with this alternative is that it has already been done. Using
this alternative is one of the leading causes why hospitals have begun adopting their
own policies. In 1997, the American Society For Reproductive Medicine ("ASRM")
released their guidelines on the issue. Then in 2004, ASRM released another set of
guidelines. The guidelines allow PMGR, but note that if prior consent is not given or
the patient's wishes are not known then the medical team does not have to honor a
240 Spielman, 2009, at 339.
82
request.241 The guidelines essentially say that physicians should use their best
judgment and provide an "[answer] within the context of the individual
circumstances and applicable state laws."242 The ASRM guidelines seem to indicate
that physicians have "no ethical duty to honor the request, nor is denial required."243
It would be reasonable to assume that since urologists commonly receive
PMGR and PVSGR requests, their professional organization would have issues
guidelines on the subject. However, the American Urologist Association ("AUA") has
yet to produce guidelines for such requests and retrievals.244 Instead, members of
the AUA must turn to the AUA's general code of ethics, which require urologists to
consider the "best interests of the individual, of society, and unforeseen
consequences."245 The problem with the professional organizations is that they
provide little (ASRM) to no (AUA) guidance to the practicing physicians faced with
gamete retrieval requests.
Second, professional regulation can lead to inconsistent treatment of
identical cases. Not every physician is part of a professional organization. Therefore,
hospitals may have some of their physicians following the guidelines and other
physicians following their own guidelines. As mentioned in Chapter 5, hospitals
have an interest in providing their patients with consistent and predictable care. If
the medical teams do what they think is best, their opinions and beliefs may lead to
inconsistent treatment and reflect badly on the hospital.
241 ASRM, 2004, at S261. 242 Id. 243 Hill, 2003. 244 Brock, 2005, at 274. 245 Id.
83
If professional medical organizations drafted statements directly addressing
PMGR and PVSGR, then those statements would have great weight in the medical
community. Such statements could fill in the gaps between hospital policies and
"inform lawmakers about what the law should be." 246 However, the leading
professional organizations have not clearly addressed PMGR and PVSGR, even
though they are probably well aware of the concerns arising from PMGR and PVSGR
and aware that the procedures are becoming more common. This leads me to
conclude that stronger professional organization statements or guidelines are
unlikely to be drafted any time soon. So, until such statements are released and
evaluated, hospital PMGR and PVSGR policies are the best way to sufficiently
address the concerns arising from the procedures.
246 Id.
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CONCLUSION
For over thirty years, PMGR and PVSGR have raised serious ethical, legal,
social, and practical concerns. These concerns only grow as PMGR and PVSGR
become more common. So far, legislation and professional guidelines have failed to
properly address these concerns. This has left the medical community largely
without clear guidance as to how to respond to increasing PMGR and PVSGR
requests. Many physicians have called out for guidance on the issues and hospitals
have begun answering this call by implementing their own PMGR and PVSGR
policies to help guide decision-‐making.
In general, PMGR and PVSGR procedures should not be prohibited because
doing so may violate individuals' basic right to procreate. However, this does not
mean that every PMGR and PVSGR request citing reproductive autonomy should be
honored. Doing so may violate the patient's basic right not procreate. Therefore, the
key to determining whether PMGR and PVSGR requests should be honored is
whether the deceased or PVS patient wanted the procedure and wanted to create a
child born after the patient's death or while the patient is in PVS. In this thesis, I
have argued that only the patient's written explicit consent sufficiently protects his
or her autonomy because it is the only non-‐speculative way to determine the
patient's wishes regarding PMGR and PVSGR.
In the absence of the patient's explicit written consent to PMGR or PVSGR,
surrogate decision makers should not be allowed to determine whether the patient
wanted or would have wanted PMGR and PVSGR. I have argued that since surrogate
85
decision makers are usually the recipients of the requested gametes, they are an
interested party and may be influenced to present evidence that serves their own
interests instead of the interest of the patient. I have argued that PMGR and PVSGR
requests by non-‐intimate partners (e.g., parents) should not be honored. Also, the
treatment of grief is not a permissible reason, by itself, to perform PMGR or PVSGR. I
have argued that the welfare of the future child should be considered in every PMGR
and PVSGR situation. This should not necessarily prevent a PMGR or PVSGR from
occurring, but should encourage the medical team to refer the deceased or PVS
patient's intimate partner to their hospitals legal department so they can be
informed of the legal consequences the future child might experience as a result of
PMGR and PVSGR.
A lingering question I set out to answer in this thesis is whether hospital
policies can sufficiently address the legal, ethical, social, and practical concerns
arising from PMGR and PVSGR. After conducting interviews, reviewing PMGR and
PVSGR literature, and comparing numerous hospital policies, I believe that hospital
policies can and often do address the ethical, legal, social, and practical
considerations arising from PMGR and PVSGR, even though these policies vary
considerably in how they address these considerations. These considerations may
be addressed by alternatives, such as legislation or professional organization
guidelines, but these alternatives are either underdeveloped or severely inadequate
to sufficiently address PMGR and PVSGR.
Finally, due to the complexity of the issues arising from PMGR and PVSGR,
the emotions involved in the process, and the relatively small window of time when
86
gametes can be retrieved (in PMGR), I recommend that hospitals should adopt
PMGR and PVSGR policies before they receive their first PMGR or PVSGR request, or
as quickly as possible before more are received.
87
REFERENCES American Society For Reproductive Medicine, The Ethics Committee, Ethical Considerations Of Assisted Reproductive Technologies, 67 Fertility And Sterility 8S (1997). American Society For Reproductive Medicine, The Ethics Committee, Posthumous Reproduction, 82 Fertility And Sterility 260 (2004). Andrews, Lori B., The Sperminator, New York Times Magazine 62 (Mar 28, 1999). Arkansas Children's Hospital Policy, Retrieving Male or Female Gametes From Deceased, Comatose Persistent Vegetative State or Brain Dead Patients. Accessed at: http://www.pediatricethics.org/index.php?option=com_content&view=article&id=15&Itemid=17 Arthur, Charles, Woman Is Pregnant By Sperm Of Dead Man, The Independent (July 16, 1998) Available at http://findarticles.com/p/articles/mi_qn4158/is_19980716/ai_n14178686. Astrue v. Capato, 132 S.Ct. 2021 (2012). A.Z. v. B.Z., 431 Mass. 150 (2000). Bahadur, G., Death And Conception, 17 Human Reproduction 2769 (2002). Bahadur, G., Ethical Challenges In Reproductive Medicine: Posthumous Reproduction, 1266 International Congress Series 295 (2004). Barton, Sara E. et al., Population-‐Based Study of Attitudes Toward Posthumous Reproduction, 98 Fertility and Sterility 735 (2012). Batzer, Frances et al., Postmortem Parenthood And The Need For A Protocol With Posthumous Sperm Procurement, 79 Fertility And Sterility 1263 (2003). Beauchamp, Tom and James Childress, Principles of Biomedical Ethics, (New York: Oxford Press. 2009). Belker, Arnold, Live Birth After Sperm Retrieval From A Moribund Man, 76 Fertility And Sterility 841 (2001). Brock, Lisa V. & Anna C. Mastroianni, Sperm and Egg Retrieval for Posthumous Reproduction: Practical, Ethical, and Legal Considerations, Contemporary Endocrinology: Office Andrology (Human Press, 2005).
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Cannold, L, Who Owns a Dead Man's Sperm?, 30 J Med. Ethics 386 (2003). Carpenter, Benjamin, A Chip Off The Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts To Address The Issue Have Fallen Short, And How To Fix It, 21 Cornell J.L. & Pub. Pol'y # Clarke, Gary N., A.R.T. and history, 1678-‐1978, 21 Human Reproduction 1645 (2006). Coghlan, Andy, Some Coma Patients 'Feel Pain', New Scientist (Oct. 7, 2008). Available at: http://www.newscientist.com/article/dn14891-‐some-‐coma-‐patients-‐feel-‐pain.html Cohen, I. Glenn, The Right Not To Be A Parent?, 81 S. Cal. L. Rev. 1115 (2007). Cohen, Philip, Life After Death-‐New York State Moves To Keep Dead Men's Sperm In The Family, 2126 New Scientist 2323 (1998). Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992). Dotsal, J. et al., Post-‐mortem Sperm Retrieval In New European Union Countries: Case Report, 20 Human Reproduction 2359 (2005). Duke Hospital Mission Statement. Accessed at: <http://www.dukehealth.org/locations/duke_hospital/location_details/duke_university_hospital_mission> Duke University Hospital, Personal Communications (do not have a policy). East Carolina University's Vidant Medical Center, Personal Communications (unwritten policy). Eisenstadt v. Baird, 05 U.S. 438 (1972). Elliott, Michael K., Tales Of Parenthood From The Crypt: The Predicament Of The Posthumously Conceived Child, 39 Real Prop. Prob. & Tr. J. 47 (2004). Epker, J. L. et al., Ethical and Practical Considerations Concerning Perimortem Sperm Procurement In a Severe Neurologically Damaged Patient and the Apparent Discrepancy In Validation of Proxy Consent In Various Postmortem Procedures, 38 Intensive Care Med 1069 (2012). Fader, Sonia, Sperm Banking History: An Excerpt, Sperm Banking: A Reproductive Resource. Available at: http://www.cryobank.com/Learning-‐Center/Sperm-‐Banking-‐101/Sperm-‐Banking-‐History/
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Finnerty, James J. et al., Gamete Retrieval In Terminal Conditions, 185 American Journal of Obstetrics and Gynecology 300 (2001). Finnerty, James J. et al, Gamete Retrieval In Terminal Conditions: Is It Practical? What Are the Consequences? 2 Current Women's Health Reports 175 (2002). Fisher, Ian, Bill Would Govern Use of Dead Men's Sperm, NY Times B5 (Mar 7, 1998). Gottenger, E.E. & H.M. Nagler, The Quagmire Of Postmortem Sperm Acquisition, 20 J Andrology 458 (1999). Greer, David M., et al., Case 21-‐2010: A Request For Retrieval Of Oocytes From A 36-‐Year-‐Old Woman With Anoxic Brain Injury, 363 New. Eng. J. Med. 276 (2010). Griswold v. Connecticut, 381 U.S. 479 (1965). Hecht v. Superior Court, 20 Cal. Rptr. 2d 275 (Cal. Ct. App. 1993). Hill, Joal, Posthumous Sperm Retrieval, 361 The Lancet 1834 (2003). In re Estate of Kolacy, 753 A.2d 1257, 1263 (N.J. Super. Ct. Ch. Div. 2000). James, Susan Donaldson, Sperm Retrieval: Mother Creates Life After Death, ABC News (Feb. 2010). Kahan, Steven, Postmortem Sperm Procurement: A Legal Perspective, 161 Journal Of Urology 1840 (1999). Kass v. Kass, No. 19658/93, 1995 WL 110368 (N.Y. Sup. Ct. Jan. 18, 1995). Katz, Katheryn D., Parenthood From The Grave: Protocols For Retrieving And Utilizing Gametes From The Dead Or Dying, University Of Chicago Legal Forum 289 (2006). Kerr, Susan M. et al., Postmortem Sperm Procurement, 157 Journal Of Urology 2154 (1997). Knaplund, Kristine S., Children Of Assisted Reproduction, 45 Univ. Of Michigan Journal Of Law Reform 899 (2012). Knaplund, Kristine S., Postmortem Conception And A Father's Last Will, 46 Ariz. L. Rev. 91 (2004). Lahey Clinic Policy, 5166 Sperm Retrieval From Dead or Irreversibly Comatose Patients, Clinical and Administrative Policy and Procedure Manual 93-‐a, Available at:
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http://www.lahey.org/Education_and_Research/Medical_Ethics/Medical_Ethics_Policies.aspx. Accessed November 13, 2012. Louinn, Lota, Baby Born From Dead Man's Sperm. The Philadelphia Inquirer (1999). The Multi-‐Society Task Force On PVS, Medical Aspects of the Persistent Vegetative State, 330 N Engl J Med 1499 (1994). Murphy, Timothy & Gladys White, Dead Sperm Donors Or World Hunger: Are Bioethicists Studying The Right Stuff? 35 Hastings Center Report 2 (2005). Nakhuda, Gary S. et al., Posthumous Assisted Reproduction: A Survey Of Attitudes Of Couples Seeking Fertility Treatment And The Degree Of Agreement Between Intimate Partners, 96 Fertility and Sterility 1463 (2011). N.C. GEN. STAT. § 29-‐9 California Baby Born Using Sperm From Dead Father, Charleston Gazette (West Virginia) P2A (March 27, 1999). New York Hospital Guidelines for Consideration of Requests for Post-‐mortem Sperm Retrieval. Available at: https://www.cornellurology.com/resources/guidelines/ Accessed November 13, 2012. North Carolina Power of Attorney Form. Accessed at http://www.secretary.state.nc.us/ahcdr/Forms.aspx Northwestern Memorial Hospital, Personal Communications (currently drafting a policy). OHSU Health Care System Policy, Post-‐Mortem Sperm Retrieval, HC-‐CLN-‐EXP-‐P005 (Jan. 13, 2012). Ohl, Dana A. et al., Procreation After Death Or Mental Incompetence: Medical Advance Or Technology Gone Awry?, 66 Fertility And Sterility 889 (1996). Orr, R. D. & M. Siegler, Is Posthumous Semen Retrieval Ethically Permissible?, 28 J Med Ethics 299 (2002). Pennings, G. et al., ESHRE Task Force On Ethics And Law 11: Posthumous Assisted Reproduction, 21 Human Reproduction 3050 (2006). Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227 (1872). Radford, Mary F., Post-‐Mortem Sperm Retrieval And The Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows,
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Georgia State University College of Law, Legal Studies Research Paper. Available at: http://ssrn.com/abstract=1376402 Robertson, John A., Posthumous Reproduction, 69 Ind L J 1027 (1994). Rothman, Cappy Miles, Live Sperm, Dead Bodies, 20 J Andrology 456 (1999). Schiff, Ann Reichman, Arising From The Dead: Challenges Of Posthumous Procreation, 75 NC L Rev 901 (1997). Shefi, Shai et al., Posthumous Sperm Retrieval: Analysis Of Time Interval To Harvest Sperm, 21 Human Reproduction 2890 (2006). Soules, Michael R., Commentary: Posthumous Harvesting of Gametes A Physician's Perspective, 27 J L Med & Ethics 362, 363 (1999). Spielman, Bethany, Post Mortem Gamete Retrieval After Christy, 5 ABA Health Esource (October 2008). Spielman, Bethany, Pushing The Dead Into The Next Reproductive Frontier: Post Mortem Gamete Retrieval Under The Uniform Anatomical Gift Act, 37 Journal Of Law, Medicine & Ethics 331 (2009). Strong, Carson, Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegetative State, 14 J.L. & Health 243 (1999). Strong, Carson et al, Ethics Of Sperm Retrieval After Death Or Persistent Vegetative State, 15 Human Reproduction 739 (2000). Strong, Carson, Gamete Retrieval After Death Or Irreversible Unconsciousness: What Counts As Informed Consent? 15 Cambridge Quarterly Of Healthcare Ethics 161 (2006). Sutton, Stacey, The Real Sexual Revolution: Posthumously Conceived Children, 73 St. John's Law Rev. 857 (1999). Tash, Jennifer A. et al., Postmortem Sperm Retrieval: The Effect Of Instituting Guidelines, 170 J Urology 1922 (2003). University of North Carolina Health Care Policy, Gamete Collection For Permanently Unconscious or Deceased Patients, Admin 0210 (Sept. 2010). University of North Carolina Hospital Mission Statement. Accessed at: <http://www.unchealthcare.org/site/aboutus/mission.htm>
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University of Virginia Health System Policy, Policy For Retrieving Male or Female Gametes From Dead Subjects, Comatose Persons, Persons in Persistent Vegetative State or Brain Dead Subjects. See James J. Finnerty et al., Gamete Retrieval in Terminal Conditions: Is it Practical? What Are the Consequences?, 2 Current Women's Health Reports 175, 177 (2002). University of Washington Policy. See M. R. Soules, Posthumous Harvesting of Gametes -‐ A Physicians Perspective, 27 Journal of Law, Medicine & Ethics 362, 364 (1999). Wake Forest Baptist Medical Center Mission Statement. Accessed at: <http://www.wakehealth.edu/Mission-‐Statement.htm> Wake Forest Baptist Medical Center Policy, Gamete Recovery From Newly Dead or Irreversibly Unconscious Patients (4th draft, June 9, 2009). White, Gladys B., Commentary: Legal and Ethical Aspects of Sperm Retrieval, 27 J L Med & Ethics 359 (1999). Williams, Devon D., Over My Dead Body: The Legal Nightmare And Medical Phenomenon Of Posthumous Conception Through Postmortem Sperm Retrieval, 34 Campbell L Rev 181 (2011). Woodward v. Commissioner of Social Security, 760 N.E. 2d 257 (Mass. 2002).
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APPENDIX I: EXCLUSIONARY CRITERIA TABLE
Policy Policy Type Consent Recipient/
Requestor Retrieval Time Waiting Period Economic
Arkansas Children's Hospital
PMGR & PVSGR
Written Explicit Consent (signed and witnessed)
Patient Named Custodian (in charge of storing and distributing gametes according to patient's wishes)
-‐-‐ -‐-‐ Responsibility of the custodian.
Duke No Policy -‐-‐ -‐-‐ -‐-‐ -‐-‐ -‐-‐ The Lahey Clinic
PMGR & PVSGR
1. Written Explicit Consent (signed and notarized) or If HC provider can provide documentation in the patient's written records 2. Authorization by Patient's next of kin (deceased) or Surrogate Decision Maker (PVS).
Patient named recipient (anyone)
-‐-‐ -‐-‐ Responsibility of the individual authorizing the gamete retrieval
New York Hospital Guidelines
PMGR Explicit prior or reasonably inferred consent determined by actions and discussions prior to death
Wife only. Within 24 hrs. of death
Required 1-‐year (wife must undergo medical and psychological consultations
-‐-‐
Northwestern Memorial Hospital
PMGR (Draft)
Written Explicit Consent. In extremely rare circumstances compelling evidence of patient's wishes are considered without prior written explicit consent.
-‐-‐ -‐-‐ -‐-‐ -‐-‐
OHSU Health Care System
PMGR Written Explicit Consent or verbal consent If Directed Donation: Written Explicit Consent
Only surviving partner, unless directed donation. If directed donation then anyone the patient named in written explicit consent.
-‐-‐ Required 3-‐month
Responsibility of the surviving partner or directed donor recipient.
University of North Carolina Hospital
PMGR & PVSGR
Written Explicit Consent
Only patient identified intimate partner
Within 24-‐hours of death
Recommended 1-‐year
Responsibility of the intimate partner.
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Policy Policy Type Consent Recipient/
Requestor Retrieval Time Waiting Period Economic
University of Virginia Health System
PMGR & PVSGR
Written Explicit Consent (1. indicates consent to use retrieved gametes for procreation; 2. names the person intended to be both the recipient and user of gametes; 3. declares willingness, or unwillingness, to be recognized as the parent; 4. signed and witnessed.)
Named requestor who is not the parent, grandparent, child or first cousin of the patient; and, the requestor is also to be the partner in any attempt to procreate with the retrieved gametes.
-‐-‐ 2 sessions with a psychologist or psychiatrist, who must provide a statement that the named recipient is prepared to undergo procedures.
Responsibility of the named recipient.
The University of Washington
PMGR Written Explicit Consent
-‐-‐ -‐-‐ -‐-‐ -‐-‐
Vidant Medical Center (East Carolina University's Brody School of Medicine)
PMGR (unwritten)
Written Explicit Consent
Wife, girlfriend or mother.
-‐-‐ -‐-‐ -‐-‐
Wake Forest Baptist Medical Center
PMGR & PVSGR (Draft)
Consent provided by the patient's legally determined surrogate decision maker (guided by the patient's previously expressed wishes; If none then can use the substituted judgment standard.)
Patient's intimate partner.
-‐-‐ None, but should offer referral for support and bereavement counseling.
Responsibility of the intimate partner.
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CURRICULUM VITAE PERSONAL INFORMATION Name: Tyrel James Hooker Address: 500 Clarion Bridge Way Apt. 523 Morrisville, NC 27560 Telephone: (512) 670-‐6488 Email: [email protected] Date and Place of Birth: October 10, 1985 Odessa, Texas EDUCATION Graduate: Masters of Arts in Bioethics Wake Forest University Winston-‐Salem, North Carolina January 2011 – present Anticipated Date of Graduation – December 2012 Law School: Juris Doctorate of Law Wake Forest University Winston-‐Salem, North Carolina August 2009 -‐ present Anticipated Date of Graduation -‐ December 2012 Undergraduate: B.A. of Liberal Arts, History The University of Texas -‐ Austin Austin, Texas February 2006 -‐ December 2008
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ACADEMIC HONORS AND AWARDS Law Alumni Counsel Scholarship: Fall 2009 -‐ May 2012 CALI Award: Spring 2012 Business Foundations Certificate with "Highest Honors" University of Texas Honors: Fall 2007, Fall 2008 PUBLICATIONS Aragon, Stephen et. al., Patient-‐Centeredness: A Best Practice for HBCU Health Professional Education Programs?, forthcoming in The Journal of Best Practice in Health Professions Diversity: Research, Education & Policy.