Frozen Reproductive “Products”: Who Has the Right to Use Them?

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A couple of years ago I wrote a post on “Reproductive Options,” in which I discussed the increased options women have today for getting pregnant and having babies. In a science fiction future, we may even be able to “grow” babies in artificial wombs. But for now, the weirdest thing I’ve heard about is the possibility of having posthumous offspring. That’s right: having children after you’re dead.

Israel has been in the news lately because of a case—two cases, actually—where the parents of deceased sons have petitioned the courts to allow them to use their sons’ preserved sperm at some point in the future to create their own grandchildren. In a 2009 case, the deceased was a 15-year-old cancer patient who had had his sperm collected and frozen before he underwent cancer treatment. Against the advice of Israel’s Attorney General, the court ruled that the sperm could be turned over to the boy’s parents as part of his estate and that they could then use the sperm as they wished.

In a more recent case, the parents of a 27-year-old man had his sperm extracted when he was in a coma. Their son subsequently died and his parents are awaiting the verdict of the Attorney General as to whether or not they can use his sperm to impregnate a willing female.

Israel leads the world in reproductive technological innovations.

It has the world’s highest IVF rate: According to a 2006 paper prepared for the Knesset, 1,800 treatment cycles are performed each year per million people, compared to 240 in the United States. Its specialists are among the best on earth, and health insurance there covers unlimited IVF [in-vitro fertilization] attempts up to the birth of two live children. Israel was the first country in the world to legalize surrogate-mother agreements.

I’ve read about cases dating back to the 1990s where courts have had to decide what to do with a couple’s frozen embryos in the event of divorce or death. [See guidelines for addressing this issue in your will.] I can also remember the brouhaha when the first test-tube baby was born in 1978. But even then I’m not sure that all the implications were considered. I certainly don’t remember anyone talking about posthumous grandchildren!

One twist to these stories is the position of pro-lifers about what should be done with “left-over” embryos. Although their concern about disposing of unused fertilized eggs is understandable, what’s their solution? Advertise for surrogate mothers to carry all these embryos to term? How would that even be possible when the embryos “belong” to the couple who created them? (There is one other option: adoption of embryos by third parties. See article about this here.)

Would pro-lifers deny a couple the opportunity to use IVF simply because there might be embryos that will be discarded? Or do they propose that a couple be forced to use all the embryos, even in the case of only one pregnancy? Do we really want more Octomoms?

Then there is the issue of abortion, or in the case of multiples, selective reduction. If a couple decides to have the extra embryos destroyed, are they “committing” abortion? And similarly, if a couple has the right to dispose of extra embryos when they’re undergoing IVF, then why isn’t it all right to have an abortion?

It all comes down to the issue of ownership. If you “own” the products you created, then don’t you have the right to do what you want with them?

If pro-lifers are going to be consistent they also have to be against any procedure that results in embryos that aren’t eventually used. But since it would be impossible to enforce that all embryos be used, their only tenable position is to be against all such technology. And somehow I can’t see them being able to stop people from developing or wanting to take advantage of new ways to solve infertility problems.

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Ellen Keim

Ellen is a freelance writer, essayist and copy editor, living with three cats and a husband in Columbus, OH.

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