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Life after death: The ethics of posthumous gamete use

19 September 2011
Appeared in BioNews 625
A recent court case in Israel has generated much controversy after a judge allowed the family of deceased 17-year-old Chen Aida Ayish to extract and freeze her eggs posthumously. At the time, the family also requested permission to fertilise the eggs but it is now understood to have retracted its request – reportedly in the face of public pressure.

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.

2 March 2015 - by Ruth Retassie 
A British woman is in a legal bid to become pregnant using her deceased daughter's eggs, reports the Daily Mail. The mother, aged 59, said it was her daughter's dying wish before she died of bowel cancer four years ago...
13 January 2014 - by Dr Anna Smajdor 
Dilemmas relating to the perimortem retrieval and posthumous use of sperm have featured in a number of recent BioNews articles. These cases show us how variable attitudes toward consent may be in different countries...
12 November 2012 - by Ayesha Ahmad 
A recent battle by the parents of a teenager who was critically injured in a car accident to obtain and store his sperm for future use has ended following his death last week...
6 June 2012 - by Dr Ruth Shidlo 
Two weeks ago, the Israeli Ministry of Health published recommendations regarding fertility and birth and its legislation. I applaud this attempt to review and improve upon existing laws and MOH regulations (some of which are not consistent with international commitments) and to codify them...
15 August 2011 - by Ayesha Ahmad 
An Israeli court has granted permission for a family to extract and freeze eggs from their deceased daughter's ovaries...
31 May 2011 - by MacKenna Roberts 
A widow has been granted possession of her late husband's sperm in an 'exceptional' Australian court ruling last week...
29 January 2007 - by Katy Sinclair 
By Katy Sinclair: After a four-year battle, an Israeli court has ruled in favour of a family campaigning for the right to use their dead son's sperm in order to inseminate a women that he never knew. Soldier Keivan Cohen was shot dead in Gaza in 2002. His mother, Rachel...
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