The dead man’s sperm

Suppose you are married to the man of your dreams. You’ve planned a future together – a holiday to Europe, a house with a picket fence, a puppy and three beautiful children.

Then he gets hit by a car.

You race to the scene and the paramedics tell you it’s too late – he’s dead. Your whole life crumbles and the future you had together disappears in front of your eyes.

But there’s a chance you can hold on to a part of that future. A part of him. A short window appears – during the next 24 hours, doctors can extricate his testicles from his dead body and save the sperm for insemination or IVF at a later date.

Right? Wrong? Creepy? Or Romantic?

Legally, there is only one state inAustraliawith legislation that permits the procedure – naturally it’s the capital of porn, drugs and fireworks, the ACT. Other states have heard some common law decisions in favour of posthumous sperm conception, but the legislation still lags well behind.

Ethically, it comes down to a question of consent and some argue, ‘the best interests of the child’.

According to Adams[i], “what occurs as a result of posthumous conception is a deliberate and preplanned deprivation of a meaningful relationship that that child should have had.”

As if bringing a child into the world without its biological father is wrong. How this differs from anonymous sperm donation, pregnancies from one night stands or giving a child up for adoption, I’m not certain, but he goes on:

“Sociological data shows that children growing up in fatherless or motherless households have myriad problems such as increased promiscuity, teenage pregnancy, imprisonment, substance abuse and poorer educational outcomes.”

This argument seems completely irrelevant since the ethics of single-parent families are not in question here. IfAdamswants to argue that posthumous sperm collection is wrong, he must also prove that only couples that will be together forever and ever more are entitled to have children. Since the divorce rate hovers at around 40 per cent, it’s hard to say how anyone can prove that.

Also arguing for the best interests of the child is Meyers[ii] who states:

“Children have rights too… we should not be intentionally creating children who will not have a relationship with and be raised by their biological father.”

I don’t even want to touch this argument in fear of being transported back to the 1950’s where I may have to tie a fresh ribbon in my hair each afternoon and speak only when spoken to – my husband works much harder than me naturally.

One legitimate concern is consent, since obviously being dead makes it hard to sign the legal papers.

But in relationships where the future of children has been discussed, and agreed upon, surely this is evidence enough of ‘implied consent’.

The concept of consent exists to protect people – from dangerous medical procedures to unwanted sexual encounters. So is consent required for person who technically doesn’t exist anymore?

In a study being conducted at the University of Technology, Sydney, the researchers asked more than 300 women who have frozen embryos whether they would consider using a stored embryo after a partner’s death. Eighty per cent said yes. Not that they would definitely do it, but that they would consider it[iii].

Posthumous reproduction is no doubt a very personal decision and only those parents themselves will know what is best for their children. But in cases where parenthood has been discussed prior to the death, what difference does it make if the partner dies while she is pregnant, to the death occuring pre-conception?


[ii] Ib id