Post-mortem parenthood
These days, nothing can stop you from becoming a parent, not even death. A woman recently celebrated in a New York courtroom after winning permission to harvest sperm from her dead fiance, just hours before the sperm’s 36-hour shelf-life had expired. “This was his wish,” she claimed. A woman in Texas was allowed to harvest sperm from her dead son in order to raise a “replacement child.” The sperm of a dead soldier was given to his Israeli parents so they could continue the family line, even though he left no will nor explicit consent. Being a dead parent has never been so easy.
Do dead men have rights when it comes to fatherhood? More generally, do people have a fundamental right to not be a parent, even after death? When it comes to dead men, after all, the responsibilities of parenthood are not a concern: They’re deadbeat dads by definition. So what exactly is at stake?
A confusing aspect of the right to not procreate is that it’s actually “a bundle of rights,” says I. Glenn Cohen, an assistant professor at Harvard Law School. In a recent paper, he argues that parenthood comes in three flavors: genetic, legal, and gestational. The man whose sperm was harvested becomes a genetic parent; the surrogate mother is a gestational parent; and the law might allocate legal parenthood to one, both, or even to third parties who become the child’s legal guardians. Do you have an equally protected right to not become each of these different types of parents?
According to Cohen, as a matter of constitutional rights, you don’t. The US constitution clearly protects a woman from becoming impregnated without her consent. And in certain circumstances involving reproductive technologies, it protects people from unwanted legal parenthood. But we are on much weaker constitutional grounds in the case of post-mortem fatherhood because this genetic parenthood does not carry with it legal or gestational parenthood.
But there are arguments to be made against harvesting sperm from dead men. In a second paper, Cohen explores some of the moral consequences. Arguing that harm is being done to the dead man “requires treading into contested philosophical waters,” he says, such as “whether death puts us beyond both benefit and harm.” But it certainly kicks up some financial dilemmas. For example, do posthumously conceived children get shares in any inheritance from the dead father? (If so, then sperm-harvesting could be as lucrative as gold-mining in some cases.) Also, harm could be done to society, for example by undermining norms for violating bodily integrity. (If harvesting dead men’s sperm becomes routine, what next?)
But do these concerns outweigh the interests of the women described in the first paragraph? Would you deny the recently bereaved girlfriend, wife, or mother?
–John Bohannon