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Solidarity as a Theoretical Framework for Posthumous Assisted Reproduction and the Case of Bereaved Parents

Abstract

Bioethicists, medical professionals and lawyers who support Posthumous Assisted Reproduction (PAR) as an ethical procedure in the case of the deceased’s spouse often oppose it in the case of the deceased’s parents. In addition, supporters of PAR usually rely on an individualistic version of liberalism, thus focusing on a personal rather than relational approach to autonomy. This article proposes an alternative and comprehensive theoretical framework for the practice of PAR, based on the concepts of solidarity and relational autonomy. By analyzing empirical data on people’s attitudes towards PAR, we reveal an important distinction between the deceased’s wish and the deceased’s consent. In addition, we show that in the majority of cases individuals report that the well-being of their relatives is paramount once they are dead. This finding, as will be demonstrated in the article, is not fully in line with Tremellen and Savulescu’s position who allow PAR in the case of the deceased’s spouse but not in the case of his parents. We also suggest that a relational autonomy perspective can be used to evaluate the choices and actions of the deceased, and to justify the requests for PAR by his spouse or parents. Furthermore, the discussion leads us to analyze both Sandel’s account of solidarity and the more recent account of Prainsack and Buyx. We conclude that PAR can be considered as a solidarity-based practice, both at the familial and societal level, an aspect that should be given more emphasis in the discourse surrounding PAR.

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Notes

  1. Although posthumous reproduction is possible through fertilization of sperm and egg, this paper will focus solely on the use of a deceased sperm. This is because the use of a deceased’s egg raises additional ethical concerns such as the need for surrogacy. These issues are beyond the scope of this article.

  2. Although traditionally a child is conceived by a man and a woman, assisted reproduction techniques have created the possibility of a variety of family types – from single-parenthood to scenarios of (at least in theory) six parents (egg donor, sperm donor, mitochondrial donor, surrogate mother, social mother, and social father). Although Landau believes that it is in the best interests of the child to have two living parents, she does not provide any argument that this is a right.

  3. Western Australia, Queensland and South Australia permit PAR. See Simana (2018), above n. 33, p. 3.

  4. Australian Government, National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2017), https://nhmrc.gov.au/about-us/publications/ethical-guidelines-use-assisted-reproductive-technology (last accessed Jan. 2019). However, these guidelines lack a formal legal status.

  5. See: Baker v State of Queensland (6th of January, 2003); MAW v Western Sydney Area Health Service [2000] NSWSC 358; In the matter of Gray [2000] QSC 390.

  6. For an extended discussion on the legal and juridical ruling in Israel, see Roy and Ram-Tiktin, forthcoming.

  7. We have so far mentioned four types of consent: inferred, implied, presumed and explicit. In the first section, we will clarify the differences between them, as well as the difference between the deceased’s wish and his consent.

  8. This statement is incoherent if one believes that it is impossible to compare nonexistence to existence. On the other hand, if one believes that such a comparison is possible and sensible, then the statement is false since it assumes that the life of a child in a single mother’s household is so awful that the child would have preferred not to exist in the first place. This debate also leads to the non-identity problem, which will not be discussed in this paper.

  9. Although an individual’s wishes may be influenced by the concern for the benefit or desires of others, we feel that in circumstances that invite others to report on the individual’s wishes it is important to isolate what he viewed as his own wishes from what he might have consented to in order to benefit others. This distinction will be demonstrated below while reviewing the studies on PAR.

  10. In some cases, they were facing the possibility of premature death due to terminal illness.

  11. Hans (2014) presented the respondents with the following question: “Suppose you were to experience an early death and your spouse wanted to have a biological child with you. Would you or would you not want your spouse to be able to use your sperm/eggs following your death to have a child with you?” (p. 12). Note that the phrasing of the question does not ask the respondent what his/her personal wishes are, regardless of those of the surviving spouse.

  12. This study was conducted on Israeli active-duty soldiers (n = 212, half of whom were serving in combat units) and parents of active-duty soldiers in combat units not participating in the study (n = 308, 58% were mothers and 42% were fathers, none of whom were married to each other). The soldiers were presented with six scenarios of familial circumstances and asked to indicate in which of them they would consider explicitly asking their family to carry out PAR if they were killed. 88.6% marked I would request that PAR be carried out in case I am killed only if my parents would wish to have a grandchild from me after I die. Only 43.3% marked the option that represented a desire for biological continuity.

  13. It should be noted that even in the case of an identified sperm donation, the child would not know who the father is until he reaches adulthood. In addition, even then the sperm donor might not want to have any relationship with his child.

  14. Another benefit is the respect for the man’s autonomous wish prior to his death.

  15. An interesting qualitative study on the process of grieving of family members who submitted requests for PAR is presented in Katz and Hashiloni-Dolev 2019.

  16. The discussion in this section is based on the accounts of solidarity presented by Prainsack & Buyx, and Sandel. For a more extensive review of the concept of solidarity and the view of solidarity as a relational concept, see Roy and Ram-Tiktin, forthcoming.

  17. Veteran’s Benefit Act 2010 PUBLIC LAW 111–275—OCT. 13, 2010 is one example.

  18. It should be noted that according to other schools of thought the notion of solidarity has negative connotations since it is perceived as a collectivistic value that jeopardizes individual autonomy. Those who endorse an individualistic perspective of autonomy might view Sandel’s notion of solidarity as threatening the individual’s ability to be free from social and cultural directives. However, as will be specified below, we take the relational perspective of autonomy and view solidarity as a moral act which acknowledges one’s relationships with significant others and her willingness to carry the relevant costs for the benefit of others. A more extensive discussion on the moral aspect of solidarity as a form of recognition see Roy and Ram-Tiktin, forthcoming.

  19. See for example: Nedlesky (1989) and Christman (2004).

  20. It is acknowledged that familial relations are not always supportive. Worse than that, sometimes they are coercive, manipulative and exploitative. For this reason health professionals who assist family members in the process of PAR should verify in advance that the decision of the spouse or the deceased’s parent(s) reflect their personal wishes and is given freely after careful deliberation.

  21. Medicare and Medicaid are two health-related government-run programs founded in 1965 following the implementation of Lyndon Johnson’s “Great Society” vision of social commitment in which more affluent and healthy sectors of society provide support to the less well-off sectors. These programs can be explained as the social manifestations of solidarity.

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Ram-Tiktin, E., Gilbar, R. Solidarity as a Theoretical Framework for Posthumous Assisted Reproduction and the Case of Bereaved Parents. Ethic Theory Moral Prac 22, 501–517 (2019). https://doi.org/10.1007/s10677-019-10012-y

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Keywords

  • Posthumous assisted reproduction
  • Solidarity
  • Relational autonomy
  • Bereavement
  • Postmortem sperm retrieval
  • Presumed consent