19 September 2011
ByAppeared in BioNews 625
The decision itself is in some ways unremarkable – Israeli courts have allowed posthumous gametes donation in the past, albeit concerning harvesting sperm. However, the consequential legal and ethical grounds of the decision are significant and worth comment. Notwithstanding the ethics, what is clear is that if reports that the eggs have already been harvested are accurate, the eggs of deceased Chen Aida Ayish will continue to exist, giving rise to legal (and ethical) questions of ownership and control.
Should Chen's family have a change in heart and pursue a request to fertilise the eggs – what then? Who decides if the eggs can be destroyed? We may be hearing a lot more about this in the near future. The legal ramifications must be thought through to ensure an appropriate framework is in place to meet the apparent demand for reproductive options from people and their families hoping to maximise on technological advances in medicine.
For the time being, from reading the news reports it's worth noting the decision of the Kfar Saba Magistrate's Court was made on a legal technicality rather than one of wider ethical consideration. The Court's decision to refuse the application to fertilise Chen's eggs was based on its finding that there was no evidence that Chen wanted children – or more specifically, as pointed out by Professor Rosamond Rhodes, Director of Bioethics at the Mount Sinai School of Medicine, USA - that she wanted children after her death.
This reading, however, does little to identify the ethical underpinning of the request in the first place. Nor will it make for an appropriate legal framework in the future. An ethical understanding of the matter is crucial to determining how this sensitive issue should be dealt with by the courts when deciding similar cases in future.
By analogy, Dr Ruth Kannai, from the Hebrew University of Jerusalem in Israel, observes that one of the motivations to donate organs stems from what she terms 'eternal continuity'. 'I think people donating organs of their loved ones want that the biological tissues will live longer than their deceased relative', she explains. However, this belief is sometimes misplaced, she says: 'The only problem of this heart-touching stance is that the recipient will die sooner or later, and eternity is impossible'.
Dr Kannai makes an interesting transition from organs to gametes. By taking gametes, she explains, the eternity of the body takes 'another step'. 'Not only the child's tissues will live a little longer, but also the genes will survive – something that is seen by lay people as staying alive for ever – simply by having descendants'.
Contemporary medical technological advancements are committing us to further metaphysical problems. We have always been able to aim, in some ways to aspire, to at least a biological form of immortality through our genetic offspring. More recently, gamete storage has allowed us to plan prospectively, allowing for untimely demise or social reproductive choices, for our genetic 'identity' to continue after our death. But the ethical issue here is not the wishes of one person, but of the family – or even friends – to immortalise their loved ones. In this sense, Dr Kannai describes, there is, for the family, a relief from part of the sorrow over the death of those close to us.
The courtroom is not a good place to debate ethical issues. Indeed, ethics do not appear to have come into play in the present case. The Kfar Saba Magistrate's Court made its decision on the basis of 'consent' – a technicality which can very easily be avoided in the future by some crafty advance declarations and legal advice. Moreover, the court did not even address the question of rights, which remain unsettled. As Dr Kannai illustrates, this includes: 'The right of the fetus to have a living mother, the right of the dead young woman who did not say a word about her wishes about future fertility'.
Putting the judicial side-stepping of murky waters aside, practical issues may also come into play as the courts are often asked to adjudicate quickly in emergencies. This raises two questions – under time pressure will the courts make the 'right' decision in the absence of clear guidance and secondly, when it does have more time to decide, will it cast its considerations wider? In this case, Dr Kannai explained that she thought that 'the court was in a hurry to make the urgent decision regarding the harvesting of the eggs, but will be much tougher when it comes to fertilise them'. However, it would be imprudent to wait for further litigation in this area to air these issues.
Much effort has been concentrated on discussing the emotional side of the story, but the legal and practical ramifications are still questions for the future. These questions are not the ends or limits of this thought-provoking case - rather they are the beginning of a much wider debate that concerns us all. Regardless of tough legal cases, the essence of the debate shows that we are now at the time when we need to juxtapose both respect and protection of interests of the deceased and the living, and the interests of those who are brought into life as a result of the deceased.