Is it possible to leave any kind of posthumous gamete donation? Experts are sounding in, and the opinion is that from a legal perspective it should be handled similarly to an organ donation. But why would anyone be asking in the first place?
As with many interesting questions, the issue came up recently as a result of a tragic event here in Massachusetts. A young woman suffered from a severe heart attack and death was imminent. There was no hope for recovery of this young woman and her family chose to withdraw her life support. In fact, the breathing machine keeping her alive was disconnected only to be “plugged back in” a few hours later after the family had changed their mind. Dr. David Greer of Massachusetts General Hospital, one of the specialists treating the woman. was not the only one shocked by the reason. The medical and legal community took a step back as a result of the request. The family stated they wanted to keep this woman alive while they explored whether her eggs could be harvested and frozen so that later she should become a mother posthumously.
“What they asked us to do made us very uncomfortable,’’ said Dr. Greer, “and forced us to think about what is the right thing to do here, what is the ethical thing.’’
In that this young woman had no advance directives in place, the doctors weighed her wishes and the medical consequences of an experimental procedure with no guarantee of success. Through this process it was determined that this woman, who was taking oral contraceptives during her lifetime, had not previously expressed a decision to have children. The doctors determined there was no medical justification to put this woman through any egg retrieval procedure, and ultimately her husband accepted the decision.
However, the question remains: could the outcome have been different if the husband had pushed it? Maybe. If the analogy is made to the case of Marissa Evans, the mother of a man who died as a result of a criminal assault, who successfully petitioned a Texas judge to allow a posthumous sperm retrieval so that she could become a grandmother through a surrogate, then yes, maybe Massachusetts courts would have ordered otherwise. Or had this young woman had an advance directive regarding the harvesting of eggs, as unlikely as that may seem, and had she and her husband expressed clear desires to have a child during their lifetime, then the factors may have had an impact on the outcome.
In the above case, the medical decision was made as a result of various factors that did not indicate that this young woman wanted to procreate. Yet there are cases of people who take steps to ensure they can procreate later in life.
The well published story of Julie Garber comes to mind. Julie was a young woman who created embryos with her eggs and donor sperm so she would be able to have children later in life, after she fought her battle with leukemia. It did not work out that way, and Julie died before ever having children. Her parents inherited her embryos and decided they wanted to be grandparents, so they used a surrogate (unsuccessfully) to help them along. Experts debated this act on the part of the parents, and the Garbers had difficulty in finding professionals to work with them the experts felt ethically and morally that it was not right to create a child who would be born an orphan. However, legally, the Garbers had the right to try. Custody issues aside, should a child have been born? The grandparents did inherit the embryos and could use them as they saw fit.
Experts agree, there are circumstances where posthumous retrieval is not only legally appropriate but morally and ethically defensible. However they unanimously agree that a critical factor before a decision on posthumous retrieval can be made is whether there exists a prior manifestation of intent on the part of the deceased to procreate after death.
So what to do? If you are in a situation where health risks or medical conditions or circumstances make it likely that you may not be alive to procreate, despite your very strong desire to have children, set out your wishes in an advance directive and execute an estate plan that includes a Letter of Intent. The combination of these documents and the very clear and unequivocal statement that you desire to be a parent some day may sway the courts and the medical practitioners asked to perform the medical procedures. Just because we enjoy constitutionally protected reproductive freedoms, it does not mean that you will find professionals who are willing to perform the services.
Julie A. Dialessi-Lafley, Esq.