IVF after Death

Bottle of mine, it’s you I’ve always wanted!
Bottle of mine, why was I ever decanted?
  Skies are blue inside of you,
  The weather’s always fine;
For … There ain’t no Bottle in all the world
Like that dear little Bottle of mine.

I expect most GetReligion readers will recognize this passage from Aldous Huxley’s Brave New World. The 1932 novel portrays a world without mothers or fathers. Where humanity is engineered as embryos. A world where babies are decanted not born.

An article in the German daily Die Welt  entiled “Witwe kämpft um das Sperma ihres toten Mannes” (Women fights for her dead husband’s sperm) brought this book to mind — as well as the ’70′s flick the Boys from Brazil.

Die Welt has printed a sympathetic account of a 29 year old widow’s attempt to conceive a child through In Vitro Fertilization from the sperm of her deceased husband. The hook for this story is that her quest flies in the face of German laws which forbid the use of sperm or eggs from a deceased person in artificial insemination. An English version of the article can be found here.

As my colleagues at GetReligion have noted, the moral issues surrounding IVF are seldom addressed in the U.S. press.  But in this German article we find no hint that there are any moral and ethical questions involved. What we have in this story is a piece about desire, with no degree of self-awareness that the article treats children as commodities.

The story begins:

Rike R.’s face radiates joy as she remembers her husband – her soulmate. Despite the tough-guy impression his multiple tattoos and piercings may have given off, he was in fact a very shy man, she recalls.

The 29-year-old woman talks about their five years together, and the fact that life gave her such a great love – something she had thought would never be hers. Her mood changes quickly, though, as she is reminded of their shattered dream of having a child together. Going over in her head the details of her husband’s recent passing, of how she held him in her arms, she begins to sob with her whole body, the tears flowing down her cheeks.

And it continues in this vein, recounting her husband, Holger’s, unsuccessful battle with cancer.

“We’d planned to have a child, and so we decided that, before chemo began, Holger would have some sperm frozen,” says the young widow. They also married, and she began hormone therapy. Things took an unexpected turn in February of this year, however, when Holger’s condition suddenly worsened dramatically. He was running a very high temperature, and could no longer eat. Just a few days later, on Feb. 11, he died.

And in paragraph six (of twelve) we reach the issue raised in the headline.

Shortly afterwards, Rike R. suffered a second shock when the clinic for reproductive medicine told her — one week before she was due to be artificially inseminated — that the hormone therapy would be stopped and that her husband’s sperm could neither be used nor handed out to her. Technically they should also destroy the sperm, doctors said, but in view of Rike R.’s present emotional fragility they would not proceed with that right away.

The clinic’s strict adherence to the rules is fueled by fears of legal repercussions should it in any way be construed as aiding and abetting a pregnancy that under German law can no longer take place. It is strictly forbidden in Germany to use the sperm or eggs of a dead person for artificial insemination. “My only hope was that I could still have our baby,” says Rike R. And she doesn’t understand why “what we so wished for together, the thing Holger deeply wanted to happen when he died and which is my only consolation now that he’s gone” can’t happen.

The author’s voice appears at this stage ..

The clinic’s position may seem heartless, but it is in accordance with German laws governing the protection of embryos. Violations are punishable, so clinics commit to using neither the sperm nor eggs of a deceased person for artificial insemination. Nor will they even release them, for fear that a person could take the sperm or eggs abroad to a country where insemination under those conditions would be legal.

The article winds down with a vow from Rike that she will fight on, and a note that her cause has been taken up by fans of a local football (soccer) club in Hamburg.

So what’s the problem? Die Welt appears to believe that there is only one side to this issue — Rike’s desire to have a child with her dead husband. There is no discussion of why German law forbids artificial insemination from the eggs or sperm of the dead. The article manipulates the reader by placing Rike’s feelings against that of the clinic’s “heartless” conformity to the law. The assumption underlying this story is that personal desire has primacy over all other considerations. Because Rike wants a child to be conceived with her dead husband, she should have a right to this child.

I find that frightening — and somewhat creepy. My reading of this tragic story is that Die Welt does not appear to hear the moral or religious chords that posthumous parenting sound. After reporting upon Rike’s desire it appears satisfied that it has done its job and abandons further discussion of “why”.

This story appears to have been written in isolation to the intellectual, legal and religious debates the issue has generated in Europe. The Catholic and Evangelical churches in Germany have released a number of joint statements that support the state’s tight controls on IVF. There is no mention of this — nor even an awareness from Die Welt that this might be germane.

Nor do we hear about the wider legal and ethical debates taking place. In 2011 the Supreme Court of New South Wales ruled that the preserved sperm of a deceased man was the property of his estate. The court held that the dead man’s wife thus held a property interest in the sperm and could use it for IVF. The husband died before he gave his express written consent for the use of his sperm after death — a requirement under Australian law. Written consent was no longer necessary prior to IVF treatment because sperm, eggs, embryos are property in Australia — the ramifications of that are extraordinary.

The U.S. Supreme Court has also been asked to decide whether children conceived through IVF after the death of their biological father are entitled to receive Social Security survivor benefits. How human are these children?

In the Caputo case, the Social Security Administration denied a claim filed by a women on behalf of her twins born 18 months after the death of their father.  The issue before the court is whether children conceived after the death of their father may receive Federal welfare benefits, even though they cannot inherit personal property from the father under state intestacy laws.

We have reached the point where “Developing reproductive technology has outpaced federal and state laws, which currently do not address directly the legal issues created by posthumous conception,” the Third Circuit Court of Appeals has noted.

This article could have been done a number of different ways. If Die Welt wanted to keep away from the moral issues, it could have lightened the tone — acknowledging the existence of moral questions, but using humor or some other distraction to indicate that it was not going there.

Sonja: Oh don’t, Boris, please. Sex without love is an empty experience.
Boris: Yes, but as empty experiences go, it’s one of the best.

From Love and Death by Woody Allen (1975)

Instead we have a tearjerker tailor made for Bette Davis. There is no subtlety, no nuance, no real reporting. Die Welt would have done a much better job in placing Rike’s tragedy against the state’s reasons for not acceding to her wishes. That would have been a compelling article. Instead we have this weepy puff piece.

What say you GetReligion readers? Should Die Welt have broadened its focus? Am I being heartless? Are there two sides to this issue? How should journalists report upon the ethical implications of IVF? Are there ethical implications to IVF from the eggs or sperm of the dead? Have we made having children a fetish — or is this a natural right? Can we even speak of natural rights when they are achieved by unnatural means?

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About geoconger
  • http://authenticbioethics.blogspot.com AuthenticBioethics

    Perhaps it can be said that the article addresses the moral issues precisely in ignoring them.

    Also, a technicality. Artificial insemination is not the same as IVF. Not sure it matters much from the journalistic standpoint or moral standpoint for that matter, but IVF is much more problematic. Artificial insemination, as the term implies, means introduction of sperm into the uterus through artificial means, but what happens after that is fairly similar to natural conception. IVF of course creates embryos in a lab and later implants them. While both processes are objectionable from some moral viewpoints, IVF is definitely further along the child-as-possession road.

  • Matt

    I fully agree that the German article was deficient in not exploring possible support for the law, or even asking who would or wouldn’t support changing it.

    On the other hand, George, your question of “How human are these children?” seems inappropriate to me. Children by artificial insemination are nothing new, and posthumous children are even less so. The only innovation here is combining the two ideas.

    Also, the U.S. case seems to hinge purely on practical considerations, with little or nothing to do with moral or religious ones. If Capato’s claim were allowed, then one could in principle increase one’s share of inheritance or other survivor benefits by producing more children with the deceased person’s sperm. The question is not the propriety of having such children, but their status as heirs.

  • Jerry

    The Catholic and Evangelical churches in Germany have released a number of joint statements that support the state’s tight controls on IVF.

    That’s not what your link points to. Your link is to a statement entitled On pre-implantation genetic diagnosis which is a different matter.

    One thing that is not clear to me is the following question: IF you believe IVF is moral, then what other moral considerations are there to using the sperm of someone’s dead husband rather than live one? There could be legal issues as has been pointed out, but I’m not aware of any moral arguments. Certainly if there are such, they should be included in stories like this one.

  • Julia

    In 1990, I took part in a Family Law seminar class regarding possible future legal issues. A Lesbian classmate schooled us on uses of the turkey baster, another about selling ova to infertile women, I did a paper on attempts to change the definition of death to facilitate transplants from anancephalic babies. The topics were all really bizarre, we thought at the time. We never even imagined “snowflake babies”. Almost all involved “pelvic issues” as they are sometimes called because that’s what is mostly involved in “Brave New World” developments.

    You mention the moral considerations. In our class we had a hard time figuring out what could be the basis for decision-making that didn’t involve religious concepts. We were not successful. That’s what still strikes me. What criteria should be used in a multi-cultural, secular, not-very-religious world? Should it be utilitarian concepts, property rights, inheritance law, emotional factors? Then, what are the unforeseen consequences of picking a particular criterion?

    The property law choice in Australia is really scary.

    Remember the Steve Speilberg movie “The Amistad”? Slaves took over a slave ship and various parties were fighting over who had a right to the slaves who had landed in the US to get water and supplies? It was a property lawyer who won them their freedom. The movie emphasized a very emotional speech by a past US president on human rights and morals, but the Supreme Court completely ignored that lovely speech and ruled on the basis of the lowly property lawyer’s arguments.

    Associate Justice Joseph Story delivered the Court’s decision. Article IX of Pinckney’s Treaty was ruled off topic since the Africans in question were never legal property.

    http://en.wikipedia.org/wiki/United_States_v._The_Amistad

    Somebody should do a really in-depth article on the different directions decision-making might go, and is going in different countries, on these biotechnology conundrums.
    Where do the rights lie – living parties, deceased parties, the person to be conceived, the state? Is there a right to be conceived? Is there a right to progeny?

    How can these things be decided without some consensus on the legal and/or moral status of what people are trying to artificially conceive? Is it a person or not? When does it change from somebody’s property to a person with its own rights? Should religious concepts play a part in deciding these things?

  • geoconger

    Matt: The question of how human the children of the dead are is rhetorical. There are different types of children under law — licit and illicit — inside and outside the marriage bond. But the question now being debated is whether there are degrees of difference between types of biological children. Hence the question, who is fully human?

    George Conger

  • geoconger

    Jerry — the link points to one of a number of agreed statements on medical and biological ethics between the EKD and the Roman Catholic Church. Look through them to see what they have.

    George Conger

  • sari

    George,
    From a biological standpoint they are all fully human insofar as no one has tampered with their DNA. The most one can say about artificial insemination is that it could be used for selective breeding. Farmers have selectively bred for certain traits for centuries, or even millenia. We read how Jacob bred for visible differences between his and Lavan’s sheep, for instance. Now farmers practice artificial insemination, but it’s pretty much the same thing. Human beings have done the same thing with each other, albeit in a much more informal way, choosing a mate on the basis of appearance or strength or intelligence. So, absent manipulating genetic material, I don’t think there’s a question as to the children’s humanity, regardless of the means of conception.

    As to children being property, hasn’t that always been the case? Parents may take liberties with their children that would be unconscionable for others. Until recently, they could beat and, in some cultures, kill them for even minor transgressions. They could choose their spouses and force a marriage. They had the option to school them or keep them illiterate, at least until the age of majority, or to indenture/sell them to pay off debts. The last, using the child to generate income in the way one would rent out an animal, suggests that children were considered property well into the nineteenth century. Child welfare laws are very, very recent; the concept of children as property is very old.

  • http://authenticbioethics.blogspot.com AuthenticBioethics

    You mention the moral considerations. In our class we had a hard time figuring out what could be the basis for decision-making that didn’t involve religious concepts.

    Unfortunately, the attempt to be religiously neutral devolves into atheism in practice. Neutrality cannot accommodate every concept of God, nor can it compromise between atheism and religion in the broad sense.

    But without some concept of God, there is no objective foundation for ethics, and law is closely related to ethics. With not objective foundation for ethics, societies become either totalitarian, where might defines ethics, or they are anarchic, where individuals define ethics for themselves. In the US, and based on what you describe, we appear to be going the route of anarchy. Yet not without elements of totalitarianism.

    And again, the absence of this dimension in the media on matters of ethics speaks volumes.

  • http://www.juliaduin.com Julia Duin

    Yes, you are being heartless. If the husband gave consent, what is the argument? I fail to see why time – or his death makes a difference in how children are conceived. The letter of the law was kept but the spirit was utterly violated.

  • Matt

    The Catholic and Evangelical churches in Germany

    I think you might have said “Protestant” here instead of “Evangelical”. This is the mainline Protestant church of Germany, which is not “evangelical” in the sense usually assumed by U.S. readers.

  • geoconger

    Julia .. this begs the question what was the intent of the law that makes time and death a crucial determinant in forbidding posthumous conception. Why does this violate the spirit of the law? This was the issue I raised.

    By focusing on the desires of one individual without placing these desires in their right context, the story will not be faithful to the truth.

  • John Pack Lambert

    Children born after their father’s death are a far different matter than children conceived after their fathers death.

    I am not sure an equivalanet of the German law would survive under “right to privacy” jurisprudence, but logical limits to disconnecting people from their parents seem wise.

    Is there any limit to how long after a father dies artificial insemination can be done?

  • John Pack Lambert

    I would argue that at least with married couples there might be justification for IVF if their is no other way. However using IVF where the father is dead is highly problematic because you are intentionally creating a situation where the father will not be around.

    You might then say “well, what about fathers who die between preganncy and birth”. Well, just because everything is not the ideal does not mean that we should create things that can never even get close to it.

  • John Pack Lambert

    Evangelical is the standard name for the dominant Protastant Church in Germany. Just because it is very different than how the term is used in the United States does not make it any less valid. “Mainline Protestant” only really works as a term in the United States.

  • Matt

    John #12: My comparison to posthumous birth (#4) was not intended to argue that posthumous insemination is or isn’t proper. I was only questioning George’s rhetorical question of whether such children are “fully human”.

  • Matt

    John #14: Exactly so. If one were writing for a primarily German audience (and I do recall that George is used to writing for Europeans), then “Evangelical” might be a proper word to use. But this blog has (I think) a primarily U.S. readership, so the word should not be used in this sense without further explanation.

  • Matt

    My comparison to posthumous birth (#4)

    Sorry, that should have been #2, not #4.

  • http://ingles.homeunix.net/ Ray Ingles

    AuthenticBioethics –

    But without some concept of God, there is no objective foundation for ethics, and law is closely related to ethics.

    I’d dispute that, but not on this site, which is devoted to journalism. Wanna talk about that at the GetReligion coffeehouse, or by email?


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