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It's a bumper harvest – but what about consent?

24 September 2018
Appeared in BioNews 968

In the wake of a recent Mail on Sunday article, one might wonder if there are grounds for moving from a small-scale subsistence-type approach to the harvest, to a more industrial approach. No, we are not talking about vegetables here, but… sperm

Yet again, a case has emerged in which a man's sperm has been 'harvested' without his consent. The incident in question happened in the UK in 2014, according to the Mail on Sunday. The newspaper reported that a UK couple had had sperm taken from their son who had died in a motorbike accident, frozen it and a year later shipped it to a fertility clinic in the USA, where sex selection was used to produce a male grandchild (see BioNews 967).

The article itself is peculiar in several ways, not least in the fact that it claims that the 2014 case 'may be the first instance of posthumous sperm extraction'. Yet some paragraphs later, it details the case of Diane Blood, who famously fought the law and won, on the issue of whether sperm harvested from her dead husband Stephen could be used to enable her to conceive. (Sperm was 'harvested' from Stephen Blood both while he was dying, and after he was dead.)

So the case described by the Mail on Sunday reporter is not unique. In fact, it resembles many other such incidents that have emerged since Diane Blood's pioneering battle. There has been a succession of dead or dying men, whose bodies have been 'harvested' without their consent in order for others to make use of the seeds thus obtained.

I do not propose to give copious details of each separate occurrence here: they are very similar. In each case a man unexpectedly falls critically ill. One or more loved ones – spouses/parents, request sperm-harvesting, which is duly carried out by doctors in contravention of UK law. This case may look different in some respects: the dead man's parents wanted to choose the sex of their grandchild, which would also be illegal in the UK, but is permitted in many other jurisdictions. However, as long as it remains the case that sperm can be exported for use abroad, it is not surprising that people should seek to use it in ways that are legally acceptable in those countries. The key issue I want to focus on here is the common feature in all these cases: the harvesting of sperm without consent. What happens afterwards is a secondary issue. 

Does consent matter? After Stephen Blood's sperm was harvested, many people thought it did matter. The case was described as 'unique' and something that could never happen again. Part of the reason for this is not just the significance that people attach to sperm, but because of the importance that English law places on a person's right to determine what happens to their body. Not just while they are alive, but throughout the period during which they are dying and even after they are dead.

There are two methods for 'harvesting' sperm. Both are highly invasive. The method used in Stephen Blood's case was electro-ejaculation. An electric probe is inserted into the dead or dying man's rectum. A current is applied in rhythmic waves at increasing voltage until ejaculation occurs, usually into the bladder. A catheter is inserted through the urethra into the bladder to retrieve the sperm. This method is more common among patients who are brain dead but whose respiratory and circulatory functions are being sustained.

The other method is more common in use among men who are not being ventilated. It involves cutting into the testicles. The technique is described in one paper as follows: '… surgical bilateral resection in bloc of the proximal part of vas deferens, testicle and epididymis. At the laboratory, by milking the epididymis and vas deferens, the extracted fluid was collected…'.

Of course many men might view these procedures as being an acceptable means of allowing their loved one(s) to create children. But equally, many might not. In the context of organ donation, we expect that people will make judgments about what happens to their body – and that these judgments should be respected as far as possible.

When we are faced with reproductive material, a different standard seems to apply. The issue is complicated because – as I have argued elsewhere  – the person whose testimony is given as to the dead or dying man's probable willingness to undergo sperm harvesting is usually the very person whose interests are most entangled with the outcome.

To put this another way, the parents or spouses who want to harvest their loved one's sperm are asked whether this is what the dead man would have wanted. Of course their perception is coloured by their own desire. They stand to benefit from the procedure. Thus, while consent from loved ones is sometimes used as a proxy for organ donation, it does not follow that the same standard should apply to reproductive tissue harvesting when the prospective beneficiary is also the one giving proxy consent. This is straightforwardly a conflict of interest and should be recognised as such.

So why does this continue to happen? The Human Fertilisation and Embryology Act was drawn up so as to focus on the acceptability of storing sperm and using it in treatment. Both require the consent of the person from whom it was obtained. Yet the 'harvesting' itself is not explicitly included in the Act.

Of course that does not mean that gamete harvesting is simply unregulated. Rather, it is assumed to fall under the more general law that protects people from undergoing unwarranted medical procedures or physical assault. But this law is clearly not functioning as it should do to prevent the harvesting of reproductive tissue from dead and dying people.

Diane Blood's legal victory has paved the way for subsequent infringements of men's bodily integrity. Because, despite the fact that her husband's sperm was harvested without his consent, she was permitted to take it abroad and use it for treatment. It is clear that other people quite reasonably expect to do the same thing. Until the law is tightened up and/or prosecutions are brought for gamete harvesting without consent, the bodies of dead and dying men are vulnerable to exploitation. 

Perimortem gamete retrieval: should we worry about consent?
Journal of Medical Ethics |  1 July 2014
Spermatozoa retrieval for cryopreservation after death
International Brazilian Journal of Urology |  1 February 2018
Wealthy British couple harvested the SPERM of their dead son, 26, to create a 'designer grandson' three days after he was killed in a motorcycle accident
Mail on Sunday |  9 September 2018
17 September 2018 - by Martha Henriques 
An investigation has been launched looking into how an embryo was created from a deceased man's sperm without his consent.
3 September 2018 - by Louisa Ghevaert 
The recently published case of Y v A Healthcare NHS Trust is a unique and important legal ruling on posthumous conception in the UK. The decision sends an important message that individual fertility and reproductive legacy, and not just property, can warrant protection...
23 July 2018 - by Dr Alexander Ware 
A UK judge has granted permission for a woman to have her dying husband's sperm harvested, to use in an attempt to conceive following his death...
30 October 2017 - by Professor Eric Blyth 
A public event held on 24 October 2017 at the University of Sheffield by the Progress Educational Trust...
9 March 2015 - by Dr Anna Smajdor 
The Daily Mail recently reported that a 59-year-old woman is seeking to give birth to her own grandchild...
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