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Bennett, Belinda --- "Posthumous Reproduction and the Meanings of Autonomy" [1999] MelbULawRw 13; (1999) 23(2) Melbourne University Law Review 286


Posthumous Reproduction and the Meanings of Autonomy

BELINDA BENNETT[*]

[In recent years there has been considerable debate over the legal and ethical issues associated with posthumous reproduction. This article analyses recent cases and legal regulation of reproductive technologies in Australia. The issues associated with posthumous reproduction are explored through a consideration of the nature of an individual’s interest in their reproductive material. The suitability of a property-based model as a means of conceptualising interests in reproductive material is explored. The article concludes that the issues in this area need to be analysed in terms of autonomy interests that are understood relationally.]

In July 1998 Australian newspapers reported that a widow had won the right to have sperm removed from her late husband’s body after he died suddenly as a result of a road accident.[1] The decision by Gillard J in the Victorian Supreme Court[2] sparked debate in Australia over the legal and ethical aspects of posthumous reproduction.[3] In many respects, this debate has much in common with public debate over other aspects of reproductive technology, such as the use of in-vitro fertilisation (‘IVF’) for older women or for single women, that have pushed out the boundaries of traditional understandings of parenthood. In all of these areas there is debate over whether assisted conception techniques, such as IVF or artificial insemination, should be used to create non-traditional families. However posthumous reproduction adds an additional layer of complexity to the debate for it raises concerns over the ethics of using gametes from a dead person. In addition, the debate in these areas highlights the inadequacies of existing legal concepts in dealing with reproductive issues.

The Victorian case resonates with the much publicised case of Diane Blood in Britain in which Mrs Blood fought for the right to access her dead husband’s sperm.[4] Both of these cases reveal the tensions created between scientific and reproductive possibilities on the one hand and legal regulation on the other. In a very real sense, posthumous reproduction simultaneously leads us to question the limits of life and the meaning of death,[5] and to consider the challenges posed to law by the scientific possibilities of both.[6] This article seeks to explore the issues raised by posthumous reproduction through an analysis of the posthumous use of sperm. The possibilities of posthumous reproduction pose fundamental questions about the significance of reproductive material, the meaning(s) of autonomy in the context of reproductive decision-making, and the balancing of interests between the living and the dead.

I THE BLOOD CASE

Debate over posthumous reproduction is not new. In 1984 a French court decided that Corrine Parpalaix could retrieve her dead husband’s frozen sperm from the centre at which it was kept so that she could try to conceive a child.[7] While the best known case is probably that of Diane Blood in the UK, there have also been cases in the United States.[8]

Diane Blood had married her husband Stephen in the Anglican Church in 1991. In 1994 Mr and Mrs Blood decided to try to have a child. Tragically, Mr Blood contracted meningitis on 26 February 1995, before Mrs Blood could conceive a child. Two days later, and with Mr Blood in a coma, Mrs Blood asked doctors if a sample of her husband’s sperm could be taken. Two samples were taken by electro-ejaculation: the first on 1 March 1995 and the second the following day ‘shortly before her husband was certified clinically dead’.[9] Mrs Blood wanted to use the samples so she could have her husband’s child. However, the Human Fertilisation and Embryology Authority was of the view that Mrs Blood could not be treated in Britain using her husband’s sperm as to do so would contravene the provisions of the Human Fertilisation and Embryology Act 1990 (UK).[10] Mrs Blood was prepared to go abroad for treatment and the Authority had the power to authorise export of the sperm, however it declined to grant the necessary permission. Mrs Blood applied unsuccessfully for judicial review of the Authority’s decision,[11] and subsequently appealed to the Court of Appeal.[12]

The Human Fertilisation and Embryology Act 1990 (UK) establishes a licensing system for assisted conception techniques and prohibits gametes or embryos being used or stored otherwise than in accordance with a licence. The Act also contains conditions of licences under the Act, including provisions requiring written consent for storage and use of gametes. The Authority is also empowered under the Act to give directions on certain matters, including the export of gametes and embryos.

On the issue of storage of Mr Blood’s sperm, the Court of Appeal concluded that under the Act there should be no preservation of sperm without written consent.[13] The storage of Mr Blood’s sperm without written consent meant that ‘[t]echnically therefore, an offence was committed by the licence holder as a result of the storage under s 41(2)(b) of the 1990 Act by the licensee.’[14] However, on this point Lord Woolf MR said that there was ‘no question of any prosecution being brought in the circumstances of this case and no possible criticism can be made of the fact that storage has taken place’.[15] Lord Woolf described the case as ‘an unexplored legal situation where humanity dictated that the sperm was taken and preserved first, and the legal argument followed’.[16] However, Lord Woolf noted that the situation was unlikely to be the same in the future:

Because this judgment makes it clear that the sperm of Mr Blood has been preserved and stored when it should not have been, this case raises issues as to the lawfulness of the use and export of sperm which should never arise again.[17]

One issue that the case raises is that of consent by Mr Blood to the actual taking of the sperm.[18] However, the issue of consent, which was governed by the common law, had not been argued before the court and consequently it was not necessary for the Court of Appeal to analyse the issue.[19] What was clear though was that ‘treatment was being provided to Mr Blood even though he was unconscious when the sperm was obtained’.[20] The issue then arose as to whether Mr and Mrs Blood were being treated ‘for the woman and man together’ as required under s 4(1)(b) of the Act.[21] On this point Lord Woolf concluded that

it is really not possible to regard treatment as being together for the purposes of section 4(1)(b), once the man who has provided the sperm has died. And, in any event, the exception to the need for written consent in the case of gametes for ‘treatment together’ only applies where the sperm is used at once and so does not need to be preserved. The keeping of sperm requires written consent under section 4(1)(a) and the terms of the licence ... The absence of the necessary written consent means that both the treatment of Mrs Blood and the storage of Mr Blood’s sperm would be prohibited by the 1990 Act. The authority has no discretion to authorise treatment in the United Kingdom.[22]

As treatment of Mrs Blood would be unlawful in the United Kingdom, the final issue to be resolved in Blood concerned the Authority’s decision to refuse to permit the export of the sperm so as to allow Mrs Blood to be treated abroad. The Court of Appeal was of the view that the Authority did not adequately take into account the effect of European Community law,[23] nor the fact that there should be no future cases involving sperm being stored without consent.[24] In allowing Mrs Blood’s appeal, the Court concluded that ‘Mrs Blood has the right to receive treatment in Belgium with her husband’s sperm unless there are good public policy reasons for not allowing this to happen.’[25] Diane Blood was ultimately successful in her battle against the authorities and late in 1998 the media reported that she had given birth to a healthy child.[26]

II AUSTRALIAN REGULATION OF REPRODUCTIVE TECHNOLOGY

These recent cases show that the issues related to posthumous reproduction are very real. In Australia the issue is complicated by the federal structure of Australian laws which leaves legislation on matters such as reproductive technology in the hands of the states. Only three Australian states, Victoria, South Australia and Western Australia, currently have legislation that specifically regulates assisted conception techniques,[27] although some other states do have legislation regulating surrogacy arrangements[28] and all states have legislation addressing the status of children born as a result of assisted conception.[29]

In Victoria, the Infertility Treatment Act 1995 provides that a woman who has an infertility treatment procedure must be married (or in a de facto relationship), and that prior to the treatment procedure both she and her husband must consent to the type of procedure to be performed.[30] In addition, for a woman to be eligible for treatment either (a) a doctor must be satisfied on reasonable grounds either from examining or treating the woman, that she is unlikely to become pregnant with her eggs and her husband’s sperm without an infertility treatment procedure, or (b) a doctor, with specialist qualifications in human genetics, must be satisfied that if the woman conceived a child naturally by her husband that any child born to them could inherit a genetic abnormality or disease.[31] The consent must be written, it must ‘specify that the woman and her husband have consented to undergo the kind of treatment procedure specified in the consent’ and when the procedure is performed the consent must not have been withdrawn or lapsed.[32] The Act requires that before a woman gives her consent to a treatment procedure, she and her husband must be given a list of approved counsellors and ‘enough information about the procedure and the alternatives to the procedure to enable the woman and her husband to make an informed decision about whether or not to undergo the procedure’.[33] The woman and her husband must have received counselling (including counselling on prescribed matters) from an approved counsellor before the woman consents to have a treatment procedure.[34]

Even if a husband and wife decide to have an infertility treatment procedure and give their consent in accordance with the Act while the husband is still alive, it is still not possible to use a dead husband’s sperm for treatment of his widow in Victoria. The Infertility Treatment Act 1995 bans procedures that use gametes from persons known to be dead. Section 43 provides:

A person must not—
(a) inseminate a woman with sperm from a man known to be dead; or
(b) transfer to a woman a gamete from a person known to be dead; or
(c) transfer to a woman a zygote or an embryo formed from a gamete from a person known to be dead; or
(d) form a zygote with sperm from a man known to be dead; or
(e) form a zygote, if the woman who produced the oocyte used to form the zygote is known to be dead.
Penalty: 240 penalty units or 2 years imprisonment or both.

Although this means that a widow could not be inseminated with her dead husband’s sperm in Victoria, the Infertility Treatment Authority does have power under the Act to authorise gametes being taken out of the State.[35] The Act also provides that a zygote or embryo can only be removed from storage for certain designated reasons which include the death of one or both of the gamete providers.[36]

The only other Australian states with legislation regulating reproductive technologies are South Australia and Western Australia. In South Australia, access to treatment under the Reproductive Technology Act 1988 is limited to married couples where either (a) one or both partners appears to be infertile; or (b) there is a risk that any child born to the couple as a result of natural conception could have a genetic defect.[37] The definition of ‘married couple’ includes long-term de facto couples.[38] Regulations under the Reproductive Technology Act 1988 require that infertility treatment must not be given to a person unless that person and their spouse have consented to the treatment in accordance with the Regulations.[39] Furthermore, semen or ova must not be stored unless consent has been given to storage.[40] Although the Regulations provide that a licensee must dispose of an embryo that is stored for future use by an infertile couple if the licensee becomes aware that either spouse has died, that their marriage has been dissolved or that consent to the storage of the embryo has been revoked by one or both spouse(s),[41] the provision in relation to the storage of gametes only provides that a licensee must dispose of stored semen or ova if the consent to their use or storage is revoked.[42]

In Western Australia the Human Reproductive Technology Act 1991 also establishes a licensing system for assisted conception procedures. The Act provides that an IVF procedure can be carried out where ‘it would be likely to benefit’ either individuals who are infertile ‘as a couple’, or a couple whose child is likely to have a genetic abnormality or disease.[43] In addition, each of the participants must have given an effective consent.[44] The individuals seeking treatment as a couple must be either married to each other or be in a long-term de facto relationship.[45] Furthermore, the reason for the infertility must not be age or another prescribed cause,[46] and consideration must have been given to the welfare and interests of the participants and any child likely to be born.[47]

The Act provides that gametes, an ovum in the process of fertilisation or an embryo may not be used or stored without the consent of the gamete provider(s).[48] Furthermore, a consent to storage of gametes, an ovum in the process of fertilisation or an embryo must specify a maximum storage period if that is to be less than the statutory maximum, and must provide instructions indicating what is to be done with stored material if the person consenting to the storage is unable to vary or withdraw the consent due to incapacity or for some other reason.[49] The Act requires that consent to the keeping or use of reproductive material must be in writing.[50] The Act envisages the development of a Code of Practice and s 18(1) provides that the Code may make provisions relating to, inter alia:

(f) the donation, use, supply, export from the State, posthumous use, or other dealing in or disposal of, gametes, eggs in the process of fertilisation or embryos by licensees.

Directions issued under the Act also contain relevant provisions.[51] In relation to the giving of consent to the keeping of gametes or embryos, ‘[t]he person responsible must ensure that no consent is given for a use not permitted under the Act, including the use of gametes of a person known to be dead’.[52] The Directions also provide: ‘Any person to whom the licence applies must not knowingly use or authorise the use of gametes in an artificial fertilisation procedure after the death of the gamete provider.’[53]

No other states have legislation regulating reproductive technologies in this way. However, in 1996 the National Health and Medical Research Council (‘NHMRC’) issued guidelines in this area entitled Ethical Guidelines on Assisted Reproductive Technology (‘Guidelines’). The Guidelines include ‘[t]he use in ART [Assisted Reproductive Technology] treatment programs of gametes or embryos harvested from cadavers’ in a list of practices that ‘are ethically unacceptable and should be prohibited’.[54] However, apart from this provision, the Guidelines do not specifically prohibit the use of gametes from a person who is known to be dead. In relation to the consent to storage and use of gametes, the Guidelines do address the issue of use of gametes and embryos after death. The Guidelines provide that consent for the storage and use of gametes should, inter alia,

give an advance directive as to what should be done with the gametes if the gamete provider dies, becomes incapable of varying or revoking the consent, or fail to give further instructions at the expiry of the maximum period of storage.[55]

There is an equivalent provision in relation to consent by couples for the storage and use of their embryos.[56] In addition, the Guidelines contain the following provision:

Should one member of a couple with the responsibility to make decisions about an embryo die, the surviving member has the responsibility to make the relevant decisions about the keeping or use of the embryo, taking into consideration any advance directive from the deceased partner.
Should both members of the couple die, where possible any advance directive from the couple should be complied with or, if there is no such directive or it cannot be complied with, the embryo should be allowed to succumb.[57]

As ethical guidelines issued by the NHMRC, these guidelines do carry some weight. However, the issue of posthumous use of gametes remains a live issue in those jurisdictions without legislation in this area.

The legal regulation of posthumous reproduction obviously varies around Australia. These variations have highlighted the need for consistency and have led to calls for national uniform laws to regulate assisted conception techniques.[58] Whether we opt for a uniform approach, or whether we prefer instead to pursue ‘harmonisation’ of state laws[59] in this area, we must be able to conceptualise a framework for decision-making about the body, both on the individual level and at the social level, that can inform the processes of law reform and law-making.

III DECISION-MAKING AND THE BODY

In the search for an adequate decision-making framework for posthumous reproduction, it is necessary to conceptualise the nature of the interest that individuals have in their reproductive material. In terms of posthumous reproduction, there are two separate issues to be considered. The first is the nature of the interest in the sperm once it has been removed from the body of the provider. The second issue is that of the nature of the interest that an individual has in whether or not his sperm is used after his death.

In relation to the first of these issues the concept of property has been applied to the issue of decision-making over the body. As a general rule, there is no property in the human body or in tissue taken from the body. This is not to say that the body has never been property. It is quite clear that people have, in the past, been regarded as property — most notably in the case of slavery.[60] The ‘no property’ proposition is drawn from a line of English cases holding that a corpse could not be the subject of property.[61] In Australia, the High Court considered the issue in the 1908 case of Doodeward v Spence.[62] The case arose following prosecution of the plaintiff for publicly exhibiting a bottle containing the corpse of a still-born two-headed child. The bottle and its contents were seized by the police. Although the plaintiff demanded its return, the corpse was retained at a University museum. The plaintiff then brought a suit for conversion.[63]

In determining whether a corpse could be the subject of property, Griffith CJ said:

I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.[64]

Barton J indicated that he ‘entirely agree[d]’[65] with the judgment of Griffith CJ, adding however ‘that I do not wish it to be supposed that I cast the slightest doubt upon the general rule that an unburied corpse is not the subject of property, or upon the legal authorities which require the proper and decent disposal of the dead’.[66] Higgins J gave a dissenting judgment, stating that there could be no property in a corpse:

From first to last, I can find no instance of any Court asserting any property in a corpse except in favour of persons who wanted it for purposes of burial, and who by virtue of their close relationship with the deceased might be regarded as under a duty to give the corpse a decent interment. I confess that I am unable to see how we can ignore such definite decisions and pronouncements as to the law.[67]

The decision in Doodeward would appear to stand for the proposition that although there is generally no property in a corpse, if the application of human work or skill changes the corpse into something other than simply a corpse awaiting burial, it may be able to be the subject of property.

The issue was considered more recently by the English Court of Appeal in Dobson v North Tyneside Health Authority,[68] in which the plaintiff sued the first defendant alleging a failure to diagnose the deceased’s brain tumor, and the second defendant for failing to keep and preserve the deceased’s brain or sections of the brain tumor. Peter Gibson LJ, with whom Thorpe and Butler-Sloss LJJ agreed, said that ‘in the present state of the English authorities there is no property in a corpse’,[69] although this is qualified by a recognition that the deceased’s administrators or executors or others who have a duty to inter the body have a right to custody and possession of the body until its burial.[70]

The second qualification to the general ‘no property’ rule considered by the Court of Appeal was that where skill had been applied, or where the corpse had undergone a process, it could be the subject of property.[71] Considering the facts of the case, Peter Gibson LJ said that preserving a brain after a post-mortem was not

on a par with stuffing or embalming a corpse or preserving an anatomical or pathological specimen for a scientific collection or with preserving a human freak such as a double-headed foetus that had some value for exhibition purposes.[72]

Peter Gibson LJ held that a brain fixed in paraffin for a post-mortem was not ‘an item to possession of which the plaintiffs ever became entitled for the purpose of interment or any other purpose, still less that the plaintiffs ever acquired the property in it.’[73]

From Doodeward and Dobson it would appear that there is generally no property in a corpse, although there may be a right to possession of it for the purposes of interment. However, it seems possible that a corpse that has been altered through a process such as embalming or some other form of preservation may be able to be the subject of property.

Even in relation to excised human tissue, there are few instances of the courts applying a model of proprietary rights.[74] In the case of Moore v Regents of the University of California[75] the Californian Supreme Court held that Moore had not stated a case for conversion in relation to the use of cells from his spleen in research and commercial development.[76] Developments in genetic technology are likely to highlight the interests of individuals in control over the uses of tissue samples for genetic testing and control over the uses to which information derived from testing will be put.[77]

IV CONCEPTUALISING THE INTEREST

Even though there is no property in the body or in tissue once separated from the body, it is clear that individuals can have an interest in any use made of their tissue. Yet if there are interests in tissue generally, the interests of individuals in their gametes (sperm and ova) are even more significant. There is one vital factor that makes sperm and ova so totally unlike any other human tissue and that one factor is reproductive potential.[78] There is a very clear and definite interest in controlling any uses made of reproductive material, for as Robert Jansen has commented, it is the very fact that gametes have this potential that makes them so unique:[79]

[E]ach ejaculate or each ovulation hardly constitutes a major drain on an individual’s resources. One simply does not care if ejaculates or ova are lost — provided that they are actually lost and that their information content, their genetic potential, is not going to be realised in a way one’s not happy with.[80]

The reproductive potential inherent in gametes is then at the heart of an individual’s interest in control over gametes and their use. These interests are recognised in the legislative framework that exists in Victoria, South Australia and Western Australia, as well as in the NHMRC Guidelines, in the provisions containing requirements as to consent,[81] storage of gametes[82] and limits on their use,[83] as well as the more general provisions relating to the licensing of providers of treatment services.

If reproductive material is different from other human tissue because of its reproductive potential, how then are we to conceptualise an individual’s interest in their gametes or embryos? As we have seen, the property model does not sit easily with discussion of interests in dead bodies or excised tissue. It sits even less easily with considerations of interests in gametes and embryos. Furthermore, in considering the nature of the interest that individuals have in their gametes and embryos, we are not looking at whether that reproductive material can be regarded as property in the sense of whether it could be stolen. It is clear that stored reproductive material could be regarded as property if we are considering its theft. However, this does not mean that we should be limited to the property paradigm when endeavouring to conceptualise the nature of the interest that individuals have in their gametes and embryos.

The legal status of frozen embryos is a topic that has occupied the attention of official committees of inquiry and commentators on reproductive technology. In the mid-1980s, the Waller Committee in Victoria rejected a property-based approach to stored embryos, stating:

The Committee does not regard the couple whose embryo is stored as owning or having dominion over that embryo. It considers that those concepts should not be imported into and have no place in a consideration of issues which focus on an individual and genetically unique human entity. ... The Committee nevertheless does consider that the couple whose gametes are used to form the embryo in the context of an IVF programme should be recognized as having rights which are in some ways analogous to those recognized in parents of a child after its birth. The Committee does not consider that those rights are absolute, just as the rights of parents are limited by the rights and interests of the child, and by the larger concerns of the community in which they all live.[84]

This approach was met with approval by the majority report of the Senate Select Committee on the Human Embryo Experimentation Bill 1985 (Cth) when it adopted its guardianship approach to human embryos:

Thus, the preferred model is to regard the embryo not as ‘property belonging to’, but as an entity enjoying the protection of a guardian. Under this model the property rights of gamete donors are exhausted on fertilisation when a genetically new human life organised as a distinct entity oriented towards further development comes into being. At that point guardianship arises and would be ordinarily and properly exercised by the intending social parents (whether or not these are the same persons as the gamete donors).[85]

This ‘not property’ approach to embryos has been reflected in case law. In the United States case of Davis v Davis, which concerned a dispute over control of frozen embryos, the Supreme Court of Tennessee concluded

that preembryos are not, strictly speaking, either ‘persons’ or ‘property’, but occupy an interim category that entitles them to special respect because of their potential for human life.[86]

While the Court concluded that the couple did not have a ‘true property interest’ in the embryos, it did recognise that they

have an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the preembryos, within the scope of policy set by law.[87]

The difficulties that clearly exist in relation to the application of property concepts to gametes and, to an even greater degree to embryos, highlight the inadequacy of existing legal concepts when applied to reproduction, reproductive material, and the female body.[88] In relation to gametes and embryos the shortcomings of the property model are evident. Gametes and embryos are not just forms of property like TV sets, cars or houses.[89] Even though we may not be prepared to grant personhood, and in particular legal personhood to embryos,[90] the view taken by the Waller Committee back in 1984 that gamete providers’ interests ‘are in some ways analogous to those recognized in parents of a child after its birth’[91] takes us some way towards an understanding and a conceptualisation of our interest in gametes and embryos and demands that we look beyond a simple property paradigm.

V THE IMPORTANCE OF CONNECTION

A property model does not reflect the value of gametes and embryos to the individual concerned. Property does not speak to the significance of genetic links, genetic continuity and potential personhood inherent in our relationship with our gametes and embryos. As Jennifer Nedelsky has argued, property does not speak of attachment:

In the case of property as the legal category for potential life, I think a relational analysis reveals that the promises of hope are illusory, at least in the long run, and that the concept of property will not help, but will distort our understanding of what matters in disputes over potential life. The values at stake in the cases turn out to be about honouring and protecting the kind of attachment to potential life that is appropriate for fostering relations of respect and appreciation of children. I think the issues in the cases also touch the most general concern of fostering people’s capacities to form relationships of intimacy, trust and responsibility. These issues involve allocation of control and decision-making authority, but they are not about ownership.[92]

The terminology we choose is important, for as Nedelsky points out, the ‘choice of legal category is a strategic one’.[93] When thinking about conceptualising structures for decision-making in the reproductive context we need to inquire ‘into the values we want to promote by permitting and protecting certain kinds of control’.[94] As we seek to formulate a framework for decision-making over gametes and embryos of both the living and the dead, we need to look beyond debates based in ‘rights’, ‘ownership’ and ‘property’ and look towards articulating the interest(s) we have in the potential inherent in reproductive material.

Within the context of the new reproductive technologies, with the possibility of gametes and embryos frozen in storage for later use, the issue of control over reproductive material takes on a new importance. It is precisely because we recognise the special nature of the interest of an infertile individual or couple in having a child of their own, that the use of their gametes or embryo for some other purpose or some other person, is unthinkable.[95] What we are concerned with, in the reproductive context, is not whether we own our gametes or embryos, for even as parents we do not own our children.[96] As Nedelsky argues, rather than ownership we are instead concerned with authority to make decisions.[97]

What is at stake here is the meaning of reproductive autonomy. Within bioethics, the principle of autonomy looms large as a basis for structuring health care decision-making and weighing conflicting priorities.[98] Yet while as a society we clearly value autonomy in the sense that we believe that, in general, a competent adult patient has a right to make decisions about his/her own health care, we should not take the meaning of autonomy for granted. Even the basic liberal concept of the autonomous, self-owning individual fails to speak to the realities of women’s lives in which women’s ‘self-ownership’ has traditionally been undermined by men’s interest in control over women’s reproductive capacity.[99] Liberalism’s autonomy has always been one of an individual separated from others by ‘a wall (of rights).’[100] Nedelsky argues that property is the ‘central symbol’ for this individualised form of autonomy.[101] In the search for an ethical framework that can be used to sift the sands of posthumous reproduction, it is difficult to see what individualised autonomy provides us with other than a basis for formulating competing rights which must then be mediated with reference to some other principle.

Feminist theory provides an alternative theoretical framework for bioethical decision-making by providing an analysis that is based on interpersonal relations and connections rather than individualised rights. Feminists have argued the need for greater acknowledgment and valuing of the role of caring and nurturing relationships in our lives and our decision-making.[102] Yet what is the meaning of autonomy when conceptualised in terms of an ethic of care? Leslie Bender argues that the value of autonomy is not diminished by an ethic of care: the differences are seen not in the value placed on autonomy, but rather ‘in the sources and meanings of autonomy’.[103] As Bender argues:

In a care-based ethic, individual autonomy is a process nurtured in webs of relationships and responsibilities instead of a static condition pre-existing them. ... The autonomy of an ethic of care can be melded with the autonomy concerns in a rights-based medical ethic, if it is understood to mean self-governing moral agency, rather than independent or self-contained decision-making. Self-governing in an ethic of care does not mean governing alone by abstract reasoning and distant observations, but means choosing options with respect to responsibilities, relationships, conversations, and dialogues with others.[104]

Jennifer Nedelsky has also argued for autonomy to be reconceived in terms of caring. She argues that autonomy should be seen as grounded not in isolation from others, but rather in connections and relationships with others.[105]

To be autonomous a person must feel a sense of her own power (which does not mean power over others), and that feeling is only possible within a structure of relationships conducive to autonomy. But it is also the case that if we lose our feeling of being autonomous, we lose our capacity to be so. Autonomy is a capacity that exists only in the context of social relations that support it and only in conjunction with the internal sense of being autonomous.[106]

Instead of a property model as a symbol for individualised autonomy, Nedelsky proposes childrearing as the symbol for a related and interdependent understanding of autonomy.[107]

What is clear is that, to the extent that it stands in sharp contrast to liberal conceptions of autonomy, caring autonomy is also an embodied autonomy. While liberalism has rested on the Cartesian split between body and mind (as well as other dualisms such as public–private and reason–emotion), it is the male body and traditionally masculine attributes that have been privileged and the female body problematised.[108] The generic, yet defined nature of the male body within liberalism’s legal and social analyses is challenged by alternative theories of the body articulated within feminist theory.[109] Embodiment has been a central concern of feminist theory. The claims of liberalism and liberal legalism to an abstract, disembodied and universal knowledge have been questioned by feminist scholars who have countered universal stories with stories of specificity, and of individuals whose lived realities are mediated through the embodied intersections of race, class, gender, sexuality, disability, and fertility.[110] Autonomy is not found in an extra-corporeal individual carrying a bag full of rights as a safeguard against the world. Instead, autonomy is articulated by an embodied self, through relationships with others. Reconceptualising reproductive autonomy in terms of embodiment can provide a new framework for thinking about contested or controversial reproductive issues.[111] Within the context of the new reproductive technologies, an autonomy premised on connectedness and embodiment provides an alternative ethical framework within which the interests of the parties in debates over posthumous reproduction can be weighed and balanced.

VI POSTHUMOUS REPRODUCTION: WEIGHING THE INTERESTS

What is it about posthumous reproduction that causes concern? Is it the sense that we have somehow failed to adequately respect the dead? Is it annoyance at the legal obstacles placed in the way of a deserving widow? Or is it concern for the welfare of a child born to a dead father? The interests of all these parties — the deceased, the widow, the child — as well as the broader social interest, must be weighed if we are to decide on the ethics of posthumous reproduction.

It may seem strange to consider whether a dead person has reproductive interests. After all, they are dead. Yet if we consider that sperm and embryos can be stored and used at a much later date, or that sperm can be retrieved from the body of a newly deceased man, it is clear that there are reproductive interests that can extend after death. Considering the interests of the deceased also makes sense when we look at the issues through a filter of caring-based autonomy.

The question of whether the deceased’s interests have been upheld or violated cannot be determined by application of a blanket rule. Each case must be considered individually. There is, after all, a fundamental difference between posthumous use of sperm stored by a man with a terminal disease in the knowledge that he may not survive the disease,[112] and the posthumous use of the sperm of a man who has died suddenly and has given no consent and expressed no wishes about the retrieval and use of his sperm in the event of his death. In the former case, the posthumous use of sperm may be furthering the interests and reproductive autonomy of the deceased, although there would, of course, be no obligation on his widow to actually put those wishes into effect unless she so desired.

A man who expresses wishes and views contrary to posthumous reproduction has a clear interest in having those wishes respected after his death.[113] The intervention of death does not necessarily abolish interests that flow from decision-making during life. Furthermore, as Schiff points out,

it would be ironic indeed if the law were to protect pre-mortem wishes regarding the disposition of property, but ignore pre-mortem wishes concerning a matter as central to a person’s identity as the desire not to create another human being.[114]

Where the deceased has clearly indicated that he objects to his sperm being used posthumously, there is no countervailing interest of the widow that overrules this. Although it is possible to argue that the widow’s interest is in having her husband’s child, the fact that while alive he objected to posthumous reproduction must be respected as an expression of his reproductive autonomy. To act contrary to an individual’s wishes about posthumous reproduction where a person had expressed their opposition to it during their lifetime would be a gross violation of that person’s interests and reproductive autonomy.

Even if posthumous reproduction were to be permitted, and this is undoubtedly a contentious issue, we should be very careful to ensure that appropriate legal safeguards are in place so that posthumous reproduction is only possible in cases in which clear consent had been given by the deceased during his lifetime. Although requiring consent will exclude those individuals who would not have objected to posthumous reproduction but who did not explicitly consent to the procedure,[115] as Schiff points out, ‘it is difficult to see why it is any more fair to presume consent on the part of those who have contemplated posthumous conception but who decided against it while omitting to record their objections for posterity.’[116]

Permitting posthumous reproduction may of course present the need for some statutory reform. It would, for example, be necessary to amend relevant reproductive technology legislation that limits access to assisted conception procedures to married or de facto couples,[117] for without such amendments a widow would not qualify for treatment in those states with such requirements. One might also wish to impose limitations such as time limits (both a maximum period of time after the death for the use of the gametes to prevent a child being born 10 or 20 years after the death of his or her father, and perhaps also a time period stipulating that gametes must not be used before a certain period of time had elapsed so as to allow the widow a period of mourning and reflection). It would also be necessary to clarify whether the posthumous child would be regarded as a child of the marriage,[118] and to resolve any inheritance issues that may arise.[119] It is important to realise, however, that posthumous reproduction with consent is likely to be limited to a very small number of cases in which the man had knowledge of his impending death, such as in the case of a terminal disease, and was able to discuss the issues related to posthumous reproduction with both his family and his medical advisers.

For the man who has not given consent, or has not expressed any wishes, the issues are much more complex for we must ask ourselves, to what extent does it make sense to speak of reproductive autonomy after death? John Robertson has argued that posthumous reproduction has little in common with what we value in reproduction:

With posthumous reproduction, the most important question is whether it is a meaningful reproductive experience to know in advance that one’s genes might (or might not) be used to produce offspring after one’s death. Ordinarily, reproduction is valued because of the genetic, gestational, and rearing experiences involved. Reproduction connects individuals with future generations and provides personal experiences of great moment in large part because persons reproducing see and have contact with offspring, or are at least aware that they exist.[120]

Robertson is undoubtedly correct in his argument here. There is obviously no way in which posthumous reproduction can share the nurturing and caring aspects we generally associate with and value in reproduction.

It is where the deceased has not made his views on posthumous reproduction known during his lifetime that the balancing of interests is most complex. And indeed this is the situation that is most likely to arise since there are likely to be very few men who will have discussed with their families and/or medical advisers whether they wish their sperm to be used after their death. In part this is because the whole concept of posthumous reproduction is still so new that it has yet to enter the popular consciousness, although media coverage of the Diane Blood case will obviously go some way towards changing this. It is also true that in general people do not like to contemplate their own mortality or the uses to which their body parts might be put in the event of their sudden death.

If the deceased’s wishes are not known, there are strong arguments against the posthumous retrieval and use of his sperm. The decision to reproduce is so deeply personal and important that it is difficult to see how a person’s interests are extinguished on death. In the absence of some indication of the person’s wishes or views on these matters, consent cannot simply be assumed, even in the context of marriage. Even where a man and his partner have been planning or actively trying to conceive a child, it is difficult to assume consent to posthumous reproduction. A man who was happy to plan and have a child with his partner may nonetheless have reservations about posthumous reproduction.[121] The use of a person’s reproductive material after their death, in the absence of their consent or knowledge of their wishes, violates not only the reproductive autonomy of the deceased but devalues its currency for the living.[122] We must ensure that the dead are treated with the respect with which we would like ourselves to be treated after death.

It is important to recognise the differences between reproductive tissue and other forms of human tissue. The posthumous use of sperm is not the same as posthumous use of non-reproductive tissue such as a kidney. As Anne Reichman Schiff points out, gamete donation ‘is life-creating rather than life-sustaining or life-enhancing’.[123] It is precisely because of this difference that posthumous reproduction must be seen as distinct from organ donation.

Furthermore, we need to recognise that the widow has no special claim to access infertility treatment services. Her infertility appears to be only in relation to her dead husband[124] and, apart from the fact that she wishes to use the sperm of a particular man (her husband), her position is similar to single or lesbian women who wish to use infertility treatment services. Yet the widow is often portrayed as a deserving recipient of these services,[125] in contrast to single or lesbian women who are often seen as less deserving.[126]

While a grieving widow may wish to have her partner’s child, the fact of death cannot be ignored. It is not simply a question of whether the widow has a right to possession of the sperm vis-à-vis a clinic holding the sperm, although the law may characterise the claim in terms of rights. Nor is it simply an issue of whether the rights of the widow outweigh the rights of the deceased.

As argued above, the language of property is inadequate as a framework for decision-making over gametes and embryos. We are concerned instead with decision-making authority. This can only be exercised in a meaningful way within a matrix that conceives reproductive autonomy not as rights but as connection. It is for this reason that we need to evaluate the widow’s claim in relational rather than rights-based terms.

How then do we conceptualise the widow’s claim relationally? Consideration of these relational issues involves a consideration of the impact of posthumous reproduction on relationships. Posthumous reproduction changes the shape of the deceased individual’s life and the relationships of that individual with others. In this respect, the potential impact of posthumous reproduction should not be underestimated:

The use of an individual’s reproductive material for posthumous procreation significantly affects the way that individual’s life is remembered and regarded by the decedent’s community and family — not least by the resultant child. Posthumous reproduction can alter in ways emotional, psychological, and financial the relationship between the deceased and any offspring already in existence.[127]

In addition, a relational analysis of posthumous reproduction requires consideration of the relationship between the widow and the deceased. When death intervenes, the corporeal bond between husband and wife is broken. While for the widow the emotional tie may live on, perhaps indefinitely, the husband’s physical presence is no more. The process of grieving is the process of coming to terms with the absence of the person and their companionship. Part of that grieving process may be to grieve for the loss of future children that the couple could have had. Once death has intervened, the relationship within which reproductive potential and autonomy could have been realised is at an end. Death does sever corporeal and relational bonds. Perhaps this sounds harsh. The temptation to have a living legacy of a dead loved one is enormous. Yet there is a time to let go. There is a time at which nature’s realities must be faced. There is a time at which it is too late.

VII CONCLUSION

Posthumous reproduction using assisted conception techniques is not simply about whether a widow has a right to have her dead husband’s child. Central to this debate are questions about the significance of reproductive potential and the implications of this potential for decision-making over the body. This issue of decision-making cannot be separated from the issue of autonomy, and in this context, reproductive autonomy. The need to move away from a rights and property based conceptualisation of autonomy and towards an understanding of autonomy based on caring and relationships gains clarity in the reproductive context. It is this alternative understanding of autonomy that provides a basis for determining that there are very few cases in which posthumous reproduction using assisted conception techniques can be justified. While the temptation to allow science to help is strong, at a policy level some limits must be imposed. Before translating scientific possibilities into actualities we must give careful consideration to past, present and future relationships between the individuals concerned for it is only by thinking relationally, rather than through rights, that we can determine the ethics of the new possibilities offered by science.


[*] BEc, LLB (Hons) (Macquarie), LLM, SJD (Wisconsin); Senior Lecturer, Faculty of Law, University of Sydney. I am grateful to Hilary Astor, Isabel Karpin, Roger Magnusson and Loane Skene for their valuable comments on a draft of this article.

[1] Peter Gregory, ‘Court Lets Widow Save Husband’s Sperm’, The Sydney Morning Herald (Sydney), 22 July 1998, 3. See also Rachel Hawes and Kimina Lyall, ‘Widow’s Wishes Come First for IVF Doctor’, The Australian (Sydney), 23 July 1998, 4; Rachel Hawes, Kimina Lyall and Tania Branigan, ‘Father-in-Law Backs Sperm Row Widow’, The Australian (Sydney), 24 July 1998, 4.

[2] A B v A-G (Vic) (Unreported, Supreme Court of Victoria, Gillard J, 21 July 1998).

[3] Editorial, ‘Agonising Choices of Death and Life’, The Australian (Sydney), 23 July 1998, 12; Deborah Smith, ‘Sperm Counts’, The Sydney Morning Herald (Sydney), 23 July 1998, 11; Kimina Lyall, ‘Dead Men Walking’, The Weekend Australian (Sydney), 25–6 July 1998, 19; Helga Kuhse, ‘The Moral Right to Reproductive Freedom’, The Australian (Sydney), 23 July 1998, 13. See also Anne Winckel, ‘The Dead Man’s Sperm Case’ (1998) 23 Alternative Law Journal 288.

[4] R v Human Fertilisation and Embryology Authority; Ex parte Blood [1997] 2 All ER 687 (CA) (‘Blood’).

[5] Derek Morgan and Robert Lee, ‘“In the Name of the Father?” Ex parte Blood: Dealing with Novelty and Anomaly’ (1997) 60 Modern Law Review 840, 856.

[6] One is reminded of Windeyer J’s comment, ‘Law, marching with medicine but in the rear and limping a little’: Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 395.

[7] For discussion of the Parpalaix case see Derek Jones, ‘Artificial Procreation, Societal Reconceptions: Legal Insight from France’ (1988) 36 American Journal of Comparative Law 525. See also ‘The Parpalaix Case and Post-Mortem Insemination’ (1984) 58 Australian Law Journal 627.

[8] See Lyall, above n 3.

[9] Blood [1997] 2 All ER 687, 690 (CA).

[10] For an excellent analysis of the background to the Act and the Act’s provisions see Derek Morgan and Robert Lee, Blackstone’s Guide to the Human Fertilisation and Embryology Act 1990: Abortion and Embryo Research — The New Law (1991).

[11] R v Human Fertilisation and Embryology Authority; Ex parte Blood [1996] 3 WLR 1176 (QBD).

[12] Blood [1997] 2 All ER 687 (CA). For further discussion of Blood see Morgan and Lee, ‘In the Name of the Father?’, above n 5.

[13] Blood [1997] 2 All ER 687, 695.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] As Lord Woolf noted: ‘The question of the lawfulness of the storage is quite separate from the lawfulness of the taking of the sperm from Mr Blood as he lay unconscious’ (ibid).

[19] Ibid.

[20] Ibid.

[21] Section 4(1) of the Act provides:

No person shall—

except in pursuance of a licence.

This section is quoted in R v Human Fertilisation and Embryology Authority; Ex parte Blood [1996] 3 WLR 1176, 1178 (QBD).

[22] Blood [1997] 2 All ER 687, 697.

[23] For analysis of European Community law and Blood see Tamara Hervey, ‘Buy Baby: The European Union and Regulation of Human Reproduction’ (1998) 18 Oxford Journal of Legal Studies 207.

[24] Blood [1997] 2 All ER 687, 702.

[25] Ibid 703–4.

[26] ‘Life Comes from Death’, The Sun-Herald (Sydney), 13 December 1998, 51.

[27] Infertility Treatment Act 1995 (Vic); Reproductive Technology Act 1988 (SA); Human Reproductive Technology Act 1991 (WA). In 1997 the NSW Department of Health released a discussion paper on whether NSW should also introduce laws regulating reproductive technology: New South Wales Health, Discussion Paper: Review of the Human Tissue Act 1983 — Assisted Reproductive Technologies (October 1997).

[28] Infertility Treatment Act 1995 (Vic) pt 6; Surrogacy Contracts Act 1993 (Tas); Family Relationships Act 1975 (SA) pt IIB; Surrogate Parenthood Act 1988 (Qld); Substitute Parent Agreements Act 1994 (ACT).

[29] Family Law Act 1975 (Cth) s 60H; Status of Children Act 1996 (NSW); Status of Children Act 1974 (Vic); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Artificial Conception Act 1985 (WA); Status of Children Act 1974 (Tas); Status of Children Act 1978 (NT); Artificial Conception Act 1985 (ACT).

[30] Infertility Treatment Act 1995 (Vic) s 8(1), (2).

[31] Infertility Treatment Act 1995 (Vic) s 8(3).

[32] Infertility Treatment Act 1995 (Vic) s 9.

[33] Infertility Treatment Act 1995 (Vic) s 10(1).

[34] Infertility Treatment Act 1995 (Vic) s 11(1).

[35] Infertility Treatment Act 1995 (Vic) s 56.

[36] Infertility Treatment Act 1995 (Vic) s 53(1)(c).

[37] Reproductive Technology Act 1988 (SA) s 13(3)(b).

[38] Section 13(4) of the Reproductive Technology Act 1988 (SA) provides that

‘married couple’ includes two people who are not married but who are cohabiting as husband and wife and who—

have, during the immediately preceding six years, cohabited as husband and wife, for periods aggregating at least five years.

In Pearce v South Australian Health Commission [1996] SASC 5801; (1996) 66 SASR 486 the plaintiff was granted a declaration that s 13(3)(b) of the Reproductive Technology Act was inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and was therefore invalid to the extent of the inconsistency due to s 109 of the Australian Constitution.

[39] Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) cl 15(1).

[40] Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) cl 17.

[41] Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) cl 26(1). This provision does not apply if the gamete providers have specified conditions for dealing with or disposing of an embryo in the event of one of these situations arising: cl 26(2).

[42] Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) cl 25.

[43] Human Reproductive Technology Act 1991 (WA) s 23(a).

[44] Human Reproductive Technology Act 1991 (WA) s 23(b).

[45] Human Reproductive Technology Act 1991 (WA) s 23(c). The couple must be ‘co-habiting in a heterosexual relationship as husband and wife and have done so for periods aggregating at least 5 years, during the immediately preceding 6 years’: s 23(c)(ii).

[46] Human Reproductive Technology Act 1991 (WA) s 23(d).

[47] Human Reproductive Technology Act 1991 (WA) s 23(e).

[48] Human Reproductive Technology Act 1991 (WA) s 22(1).

[49] Human Reproductive Technology Act 1991 (WA) s 22(6).

[50] Human Reproductive Technology Act 1991 (WA) s 22(8).

[51] ‘Directions Given by the Commissioner of Health to Set the Standards of Practice under the Human Reproductive Technology Act 1991 on the Advice of the WA Reproductive Technology Council’, Western Australian Government Gazette, No 171, 3 October 1997.

[52] Ibid [3.3].

[53] Ibid [8.5].

[54] NHMRC, Ethical Guidelines on Assisted Reproductive Technology (1996) [11.11].

[55] Ibid [3.2.6].

[56] Ibid [3.2.7].

[57] Ibid [3.2.9].

[58] Bryan Gurry, Marcus Hoyne and Nicki Mollard, ‘The Blood Case — A Need for National Uniformity’ (1997) 5 Australian Health Law Bulletin 76. The need for uniform legislation has also been recognised in the introduction to the NHMRC Guidelines:

In particular, AHEC [Australian Health Ethics Committee] considers that without uniform legislation, regulation of national data collection and maintenance of a centralised data base and monitoring of research in this area cannot be achieved.

NHMRC, above n 54, v.

[59] For an analysis of harmonisation of health law in Australia see Brian Opeskin, ‘The Architecture of Public Health Law Reform: Harmonisation of Law in a Federal System’ [1998] MelbULawRw 15; (1998) 22 Melbourne University Law Review 337.

[60] See Patricia Williams, The Alchemy of Race and Rights (1991).

[61] For discussion of these cases and the principles of property in the body generally see Roger Magnusson, ‘Proprietary Rights in Human Tissue’ in Norman Palmer and Ewan McKendrick (eds), Interests in Goods (2nd ed, 1998) 25, 27–37.

[62] [1908] HCA 45; (1908) 6 CLR 406 (‘Doodeward’).

[63] Ibid 417.

[64] Ibid 414.

[65] Ibid 417.

[66] Ibid.

[67] Ibid 421–2.

[68] [1996] EWCA Civ 1301; [1997] 1 WLR 596 (‘Dobson’).

[69] Ibid 600.

[70] Ibid.

[71] Ibid.

[72] Ibid 601.

[73] Ibid 601–2.

[74] See Magnusson, above n 61, 44–5 for a discussion of cases in which tissue has been regarded as property.

[75] 793 P 2d 479 (1990) (‘Moore’).

[76] For discussion of Moore see Magnusson, above n 61, 52–3.

[77] For discussion of privacy concerns with genetic testing see Privacy Commissioner, Human Rights and Equal Opportunity Commission, The Privacy Implications of Genetic Testing (Information Paper No 5, 1996).

[78] Robert Jansen, ‘Sperm and Ova as Property’ (1985) 11 Journal of Medical Ethics 123, 125.

[79] Ibid. A similar point has also been made in Hecht v Superior Court (Kane), 20 Cal Rptr 2d 275, 283 (Cal App 2 Dist, 1993):

Sperm which is stored by its provider with the intent that it be used for artificial insemination is thus unlike other human tissue because it is ‘gametic material’ (Davis v Davis, supra, 842 SW 2d 588, 597) that can be used for reproduction. Although it has not yet been joined with an egg to form a preembryo, as in Davis, the value of sperm lies in its potential to create a child after fertilization, growth, and birth.

[80] Jansen, above n 78, 125.

[81] Infertility Treatment Act 1995 (Vic) ss 9, 10(1), 11(1); Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) cll 23–6; Human Reproductive Technology Act 1991 (WA) ss 22(1), 22(8), 23(b).

[82] Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) cl 17; Human Reproductive Technology Act 1991 (WA) s 22(6).

[83] Infertility Treatment Act 1995 (Vic) s 43; Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA) cll 25, 26.

[84] The Committee to Consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilization (Prof Louis Waller, Chair), Report on the Disposition of Embryos Produced by In Vitro Fertilization (Victoria, 1984) [2.8] (‘Waller Committee’).

[85] Senate Select Committee on the Human Embryo Experimentation Bill 1985, Human Embryo Experimentation in Australia (1986) [3.41]. For discussion of the report see Pascal Kasimba and Stephen Buckle, ‘Embryos and Children: Problems Raised by the Majority Report of the Senate Select Committee on Human Embryo Experimentation’ (1988) 2 Australian Journal of Family Law 228; Pascal Kasimba and Stephen Buckle, ‘Guardianship and the IVF Human Embryo’ [1989] MelbULawRw 9; (1989) 17 Melbourne University Law Review 139; Rebecca Albury, ‘Inquiring into Ethics: The Australian Senate and Human Embryo Experimentation’ (1989) 24 Australian Journal of Social Issues 269.

[86] Davis v Davis, 842 SW 2d 588, 597 (Tenn, 1992).

[87] Ibid.

[88] Isabel Karpin, ‘Legislating the Female Body: Reproductive Technology and the Reconstructed Woman’ (1992) 3 Columbia Journal of Gender and Law 325; Roxanne Mykitiuk, ‘Fragmenting the Body’ (1994) 2 Australian Feminist Law Journal 63.

[89] In Victoria there is a penalty for receiving or holding oneself out as willing to receive compensation for gamete donation: Infertility Treatment Act 1995 (Vic) s 57.

[90] Embryos are not persons, although they undoubtedly have the potential to develop into them. Furthermore, to regard embryos as persons and to attach legal significance to this will have implications for other aspects of reproductive decision-making, such as in the abortion context. In any event, the concept of ‘persons’ has little relevance to gametes and so is of little practical use in finding an appropriate framework in this context.

[91] Waller Committee, above n 84, [2.8].

[92] Jennifer Nedelsky, ‘Property in Potential Life? A Relational Approach to Choosing Legal Categories’ (1993) 6 Canadian Journal of Law and Jurisprudence 343, 363.

[93] Ibid 354.

[94] Ibid 362.

[95] Jansen, above n 78, 124.

[96] Nedelsky, ‘Property in Potential Life?’, above n 92, 358.

[97] Ibid 361–2.

[98] For a thorough analysis of autonomy and other bioethical principles see Tom Beauchamp and James Childress, Principles of Biomedical Ethics (3rd ed, 1989).

[99] As Ngaire Naffine points out:

The structure of self-ownership therefore, of necessity, applied only to the male body which was thought to be free from the encumbrances of sex and reproduction and yet which still depended on ready and exclusive access to the fertile body of a woman for its reproductive needs (both physical and economic).

Ngaire Naffine, ‘The Legal Structure of Self-Ownership: Or the Self-Possessed Man and the Woman Possessed’ (1998) 25 Journal of Law and Society 193, 204.

[100] Jennifer Nedelsky, ‘Reconceiving Autonomy: Sources, Thoughts and Possibilities’ (1989) 1 Yale Journal of Law and Feminism 7, 12.

[101] Ibid.

[102] See, eg, Nedelsky, ‘Property in Potential Life?’, above n 92; Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982); Claudia Card (ed), Feminist Ethics (1991); Susan Sherwin, ‘Feminist and Medical Ethics: Two Different Approaches to Contextual Ethics’ in Helen Holmes and Laura Purdy (eds), Feminist Perspectives in Medical Ethics (1992) 17; Virginia Warren, ‘Feminist Directions in Medical Ethics’ in Helen Holmes and Laura Purdy (eds), Feminist Perspectives in Medical Ethics (1992) 32; Leslie Bender, ‘A Feminist Analysis of Physician-Assisted Dying and Voluntary Active Euthanasia’ (1992) 59 Tennessee Law Review 519; Sara Ruddick, Maternal Thinking: Toward a Politics of Peace (1989); Nel Noddings, Caring: A Feminine Approach to Ethics and Moral Education (1984).

[103] Bender, above n 102, 536.

[104] Ibid 536–7 (emphasis in original).

[105] Nedelsky, ‘Reconceiving Autonomy’, above n 100, 12.

[106] Ibid 24–5.

[107] Ibid 12.

[108] For discussion see Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (1998) 107–8.

[109] See, eg, Mykitiuk, above n 88; Karpin, above n 88; Ngaire Naffine, ‘The Body Bag’ in Ngaire Naffine and Rosemary Owens (eds), Sexing the Subject of Law (1997); Carl Stychin, ‘Body Talk: Rethinking Autonomy, Commodification and the Embodied Legal Self’ in Sally Sheldon and Michael Thomson (eds), Feminist Perspectives on Health Care Law (1998).

[110] The need to move beyond an essentialist view of the body and towards an appreciation of the multiple selves that constitute each of us has been the subject of feminist debate. See Elizabeth Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (1988); Diana Fuss, Essentially Speaking: Feminism, Nature and Difference (1989); Angela Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 42 Stanford Law Review 581; Marlee Kline, ‘Race, Racism, and Feminist Legal Theory’ (1989) 12 Harvard Women’s Law Journal 115; Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] University of Chicago Legal Forum 139; Martha Minow, ‘Beyond Universality’ [1989] University of Chicago Legal Forum 115. In the context of the new reproductive technologies it is important that feminist theories of embodiment are not premised on reproductive capacity as to do so risks excluding infertile or childless women. For discussion of infertility and feminist theory see Margarete Sandelowski, ‘Fault Lines: Infertility and Imperiled Sisterhood’ (1990) 16 Feminist Studies 33; Linda J Lacey, ‘“O Wind, Remind Him That I Have No Child”: Infertility and Feminist Jurisprudence’ (1998) 5 Michigan Journal of Gender and Law 163.

[111] Stychin, above n 109.

[112] Jansen has noted the importance of a sense of continuity for some terminally ill men:

[M]en often store semen when they learn they have a life-threatening disease. On the face of it the motive may seem to be that they are to receive cancer-killing drugs which are likely, as a side effect, to destroy the sperm-forming tissues in the testes. But from my contact with these men I am aware they often have another motive: to preserve their genetic potential in the event that they die as a result of their disease. Many dying patients take comfort in the fact that they have children, that it is not the end of the road genetically. On the other hand among the causes of anguish adolescents have in facing death is unfulfilment of their procreative instincts.

Jansen, above n 78, 125.

[113] Anne Reichman Schiff, ‘Arising from the Dead: Challenges of Posthumous Procreation’ (1997) 75 North Carolina Law Review 901, 943.

[114] Ibid. Schiff also argues:

Posthumous conception likewise affects the deceased’s interests, because it recasts the content and contours of the deceased’s life. When it occurs without the person’s consent, it deprives an individual of the opportunity to be the conclusive author of a highly significant chapter in his or her life.

Anne Reichman Schiff, ‘Posthumous Conception and the Need for Consent’ (1999) 170 Medical Journal of Australia 53, 53–4.

[115] Schiff, ‘Arising from the Dead’, above n 113, 951.

[116] Ibid.

[117] Infertility Treatment Act 1995 (Vic) s 8; Reproductive Technology Act 1988 (SA) s 13(3); Human Reproductive Technology Act 1991 (WA) s 23(a).

[118] Under current laws, a child must be born within a specified period of time to be presumed to be a child of the marriage. For example, under the Status of Children Act 1996 (NSW), a child is presumed to be a child of a marriage if ‘born to a woman within 44 weeks after her husband dies’: s 9(2).

[119] In Re Estate of the Late K; Ex parte The Public Trustee (Unreported, Supreme Court of Tasmania, Slicer J, 22 April 1996) it was held that a child born from a frozen embryo could have a right of inheritance. For discussion see Derek Morgan, ‘Rights and Legal Status of Embryos’ (1996) 4 Australian Health Law Bulletin 61. In the mid-1980s there was discussion of whether frozen embryos could, if implanted and born alive, inherit from their parents’ estate after the parents were killed in a plane crash. See George P Smith II, ‘Australia’s Frozen “Orphan” Embryos: A Medical, Legal and Ethical Dilemma’ (1985) 24 Journal of Family Law 27. For discussion of inheritance issues in this context see Rosalind Atherton, ‘En Ventre sa Frigidaire: Posthumous Children in the Succession Context’ (1999) 19 Legal Studies 139. See also James Bailey, ‘An Analytical Framework for Resolving the Issues Raised by the Interaction Between Reproductive Technology and the Law of Inheritance’ (1998) 47 De Paul Law Review 743. I am grateful to Les McCrimmon for bringing this article to my attention.

[120] John Robertson, ‘Posthumous Reproduction’ (1994) 69 Indiana Law Journal 1027, 1031.

[121] Schiff, ‘Arising from the Dead’, above n 113, 950.

[122] Schiff argues:

[I]f the state allowed family members to utilize the gametes of the dead for procreation without the deceased’s consent, the lack of assurance that individuals would have about the fate of their own body parts could be a source of apprehension to the living.

Ibid 946.

[123] Ibid 932.

[124] Hazel Biggs, ‘Madonna Minus Child. Or — Wanted: Dead or Alive! The Right to Have a Dead Partner’s Child’ (1997) 5 Feminist Legal Studies 225, 231–2.

[125] Ibid 231–2.

[126] Davina Cooper and Didi Herman, ‘Getting “The Family Right”: Legislating Heterosexuality in Britain, 1986–1991’ (1991) 10 Canadian Journal of Family Law 41. As Michael Thomson has argued:

The desire for a male presence appears so extreme as to privilege those who may provide a clinician with a macabre, disembodied and spectral presence over those who may seek treatment services with an embodied, corporeal and supportive partner who happens to be the same sex.

Michael Thomson, Reproducing Narrative: Gender, Reproduction and Law (1998) 188.

[127] Schiff, ‘Arising from the Dead’, above n 113, 944–5.


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