The patient in question, a 36 year old woman, suffered brain damage after a heart attack caused by pulmonary embolism during a long-haul flight. She was being ventilated, but the prognosis looked poor. In consultation with the patient's husband and family, it was agreed that treatment should be scaled down. Shortly afterwards, her husband and other relatives reversed their decision and requested intensified medical treatment to allow for the harvesting of the patient's eggs before she died (1).
The doctors involved in this case observed that there are no documented cases of perimortem egg retrieval. Nevertheless, they and their colleagues believed that such a procedure was clinically feasible - and therefore gave it some serious consideration. It was expected that hormonal treatment would be required, followed by surgery to extract the eggs. A surrogate would then be required to carry the child.
But would it be ethically or legally acceptable to proceed with this treatment? There was no advance consent for this, and no indication that the patient had wished to get pregnant or have a child. However, the report on this case seems to suggest that this absence of consent was not in itself enough to justify a refusal. Rather, an array of other issues was raised. It was argued that there was insufficient medical justification for the use of a surrogate; that the use of an unrelated surrogate would be ethically problematic; that the future child would suffer from the inevitable loss of a family member; that there was insufficient legal and medical precedent for the intervention.
As soon as we move away from the idea that consent is the determining factor, we seem to embark on a tortuous journey of possibilities and speculations. If we accept that the need for a surrogate is a reason for refusing treatment, there are a number of possible alternatives. As the authors of the report note, pregnancies have been sustained in comatose women. If pregnancy could be initiated in a comatose woman, the need for a surrogate could be circumvented; the patient would carry her own child. She could then be kept alive for as long as necessary to bring the child to term.
There were also issues raised about the safety of the egg harvesting procedure: would it hasten the patient's death? But again, the need for egg harvesting could be avoided altogether, just as the need for surrogacy could. The husband could attempt to impregnate his comatose wife in the 'natural' way. We might blench at the idea of this, but if so, we must ask why. The answer is likely to be that, in the absence of consent, the act of sexual intercourse is usually a serious crime. But precisely the same can be said of surgical intervention. If we can countenance one without consent, then why not the other? Certainly, if a pregnancy could be achieved more cheaply and more safely through intercourse than through a complex series of surgical interventions, it is hard to see why the latter should be preferred.
The other troubling aspect of this case is the reliance on 'ethical' reasoning in reaching a decision. Again, if the absence of consent is not deemed a sufficient reason to refuse the intervention, we seem to wander into a quagmire of hazy and speculative considerations. For example, the ethics committee believed that a surrogate was not ethically appropriate unless related to the patient (for reasons that are not clear). But what if there had been a female relative to act as a surrogate? Could this mean that egg harvesting without consent suddenly becomes acceptable?
Concern for the future child is also presented as an ethical problem. But what if the ethics committee had reason to believe the child would lead a fulfilled and happy life? Could this really change the ethical or legal acceptability of egg-extraction? Neither clinicians, nor ethics committees, I would suggest, should have the power to override a legal requirement for prior consent in perimortem reproductive requests. These supposed ethical concerns are red herrings that serve merely to detract from the central question.
I have not intended to argue here that posthumous or perimortem gamete retrieval is necessarily wrong. But the law must balance spouses' interests against the need to protect the vulnerable from assault or exploitation. In the case of perimortem reproductive requests, this balance is best achieved by taking a firm stance on the need for consent. Such requests are likely to emerge more frequently as technology offers new avenues for the pursuit of parenthood, and a robust, simple legal approach is vital.