Amy and Bob plan a family. Bob dies. Amy asks doctors to extract and freeze Bob’s sperm.
Now Amy wants to use Bob’s sperm to conceive. Should she?
Such is the core question of case #15, just in time for Halloween.
One way to help your ethics bowl team think through cases where their moral intuitions are fuzzy is to consider similar cases where their moral intuitions are more clear.
What if rather than Bob’s sperm, Amy wanted one of his kidneys?
Were we considering whether Amy should be allowed to harvest one of Bob’s kidneys, we’d probably ask whether Bob signed an organ donor card, whether he’d ever expressed an interest in giving a kidney to Amy, and whether he’d made any concrete plans to carry out a transplant.
Were the answer to all three questions no, we’d probably deny Amy’s request. Sending Bob’s kidneys to the grave would in many ways a waste (he’s not using it anymore…), but our shared commitment to respecting one another’s bodily integrity usually continues even after death.
Were the answer to the first question yes but the second and third no, we’d either say Bob’s kidneys should go to whomever happened to be at the top of the organ transplant list, or that available organs should go to loved ones before strangers.
But to the extent that Bob had expressed an intent to donate a kidney to Amy in particular, and especially to the extent that he’d scheduled a transplant and taken steps to carry it out, we’d be more inclined to endorse doctors going ahead and transplanting one of his kidneys out of his dead body and into hers, even if he didn’t explicitly say this would be OK.
Your team might see this as reason to immediately approve Amy’s request to use Bob’s sperm to conceive. “They’d made plans to have a family, and even (say, for the sake of argument) bought a five bedroom home to make room for their kids. Just like it would be OK to take the kidney had plans been made and acted on pre-death, it would similarly be OK for Amy to take Bob’s sperm, right?”
However, a kidney has little value outside an organ system, and outside a person. But a sperm cell – a sperm cell can be conjoined with an egg to generate a completely new DNA sequence, which, if healthy and nurtured, will eventually become a full person. This seems a morally relevant difference requiring additional analysis.
What if Amy and Bob conceived only hours before Bob’s death?
Were we considering whether it would be permissible for Amy to carry full term had she been impregnated by Bob shortly before his death, we’d probably worry that she might struggle without Bob by her side, lament the tragedy that their child would never know their biological father, and worry about both Amy’s and the eventual child’s quality of life.
But we wouldn’t argue that Amy should have an abortion simply because Bob died. Bob dying might give Amy reason to consider an abortion, and were she to pursue one, regardless of our overall views on abortion ethics, we might say her actions are understandable, excusable, or even just.
But this is different from making a positive argument that Amy would somehow owe it to Bob to have an abortion. Were Bob to engage in presumably consensual sex before dying, allowing the resulting entity to grow and develop in Amy’s womb wouldn’t seem to violate any direct obligations she might have to respect his wishes. His consent to have sex would seem to imply a consent to also procreate, especially if no contraceptive measures were taken.
What if rather than his wife Amy, a stranger wanted to use Bob’s sperm?
In another illuminating twist, imagine that Sue sees Amy’s quest to conceive using Bob’s sperm on TV, and decides that if the doctors have sperm to spare, she’d like to birth Bob’s baby as well.
We’d say no, and we’d say no because whether, when and with whom we procreate is an intimate decision left to each individual to decide for themselves. We entertain Amy’s interest in conceiving due to her previous relationship with Bob, and Bob’s apparent desire and plans to have a child with her.
But Bob never even met Sue. We wouldn’t endorse Sue taking Bob’s sperm without his consent while he was alive. And we’re not going to endorse it after he’s dead, either. In fact, we’d protect Bob’s post-death sperm even more vehemently than his post-death kidneys.
The Primacy of Consent
Thinking through alternative scenarios like these should help your team realize the importance of consent in this case.
With the first alternative scenario, we concluded that whether Bob’s kidneys could be permissibly transplanted into Amy turned primarily on whether a) he’d signed up for organ donation, and b) whether he’d expressed interest in and made plans to donate a kidney to Amy in particular.
In the second alternative scenario, we concluded that if Amy conceived before Bob’s death, it would be fully permissible for her to birth and raise Bob’s child, even if Bob had never indicated this would be OK. The reason? In that case Bob would have voluntarily donated his sperm via consensual sex.
And in the third alternative scenario, we concluded that Sue, a stranger, had no moral claim to Bob’s sperm. Whether, when and with whom we procreate is a protected decision we allow people to make completely on their own. The reason we’re considering allowing Amy to use Bob’s sperm post-death is that Bob had planned to have kids with her. Without that connection to Bob’s plans and consent, Amy would have no standing.
We now know how to focus our analysis.
- “What can we reasonably say about what Bob’s wishes would have been if he could have foreseen his death?”
- “Would he have wanted to produce children with Amy regardless of whether he would have been around to help raise them?”
To the extent it’s reasonable to conclude Bob would have endorsed Amy using his sperm to procreate without him, doing so would seem permissible. But to the extent that it’s not reasonable to conclude as much, using his sperm would not be permissible.
What About the Family?
The case mentions that Bob’s broader family is uneasy about Amy’s desire to use his sperm post-death. But this just seems a distraction. If they have evidence that Bob wouldn’t want this (a note, recollection of a conversation, something on videotape), that would be relevant. But just because aunts and uncles might be creeped out isn’t reason enough to override whatever we’re able to conclude about what Bob himself would have wanted.
To see this, just ask how important it would have been for Bob to have received his family’s blessing before having kids with Amy had he lived. He’d of course have some obligation to consult with them, and all else equal, having the family on board is better than not. But it’s up to couples to decide whether to procreate on their own.
Bonus Scenario If You Dare!
What if Amy had become pregnant right before Bob died, but accidentally? Say they were in agreement on the desire to eventually have kids, and were in agreement on having sex, but on that day were using various contraceptives?
Contraceptive use is relevant because it suggests at that Bob did not fully consent to conceiving – that he was taking active steps to prevent it, in fact. However, he did consent to an activity he knew could lead to conception… Might the consent to have sex genuinely imply a consent to procreate?
A tough question, with implications for abortion ethics in particular. Were I writing bowl questions, this is exactly the sort I’d ask in a later round!