In 2010, in the United States, Niklas Evans was the victim of an attack following which he entered a coma and died ten days later. Missy Evans, his mother, asked the hospital to collect his sperm in order for him to father a child posthumously with a surrogate mother.
In the Journal of Medical Ethics, Anna Smajdor, biomedical ethics scientist at the University of East Anglia (United Kingdom), explained the hidden issues behind post-mortem sperm donation carried out without the donor’s consent. Like many other bioethicists, Anna Smajdo is opposed to this.
Firstly, she points out that there is much more than a child at stake. As far as she is concerned, the logic of post-mortem sperm retrieval without explicit consent could be extended to many other issues, like organ extraction, probate law, etc.
Finally, the validity of inferred consent is a dangerous principle: “In medicine, generally consent for procedure X cannot be inferred from someone’s previous beliefs about situation Y“.
The desire for offspring is not sufficient reason. Consent cannot be inferred from a woman’s ardent desire to have a child: “Couples’ reproductive decisions are not necessarily based on symmetrical and equally held desires“. She went on to add that: “It is risky and unjust to assume that one partner’s reproductive desires can be inferred from those of the other. And if this is the case in the living, it is still more so in the case of the dead or dying, who cannot articulate their dissent“.
Anna Smajdo makes two specific recommendations: First that “the rules for posthumous gamete donation be tightened“. Second, that “the discretionary authority of the […] UK’s fertility watchdog, the Human Fertilisation and Embryology Authority (HFEA) be rescinded so that it cannot permit the export of gametes obtained without consent“.