Are there significant differences between providing human bodily material during life and after death?
In the case of ontologically significant material (see our answer to Question 1), the need for consent is fundamental. This is the case whether human bodily material is provided during life or after death, notwithstanding the fact that contemporaneous consent cannot be sought from the dead.
One example of ontologically significant material is gametes (sperm and eggs), and in considering gametes it is instructive to compare the three high-profile examples of Natallie Evans (in the European Court of Human Rights' 2007 case Evans v United Kingdom), Diane Blood (in the UK's 1997 case R v Human Fertilisation and Embryology Authority, ex parte Blood), and the family of Keivan Cohen (in Israel's 2007 case New Family Organisation v Committee for Approving Surrogacy Agreements).
In the case of Evans v United Kingdom, Natallie Evans and her fiancée Howard Johnston received fertility treatment because she was subsequently due to undergo treatment for ovarian cancer that would render her infertile. Six embryos created in the course of the fertility treatment were placed in storage, whereupon she was treated for ovarian cancer. The relationship between Ms Evans and Mr Johnston ended and he then withdrew his consent to their fertility treatment, with the consequence that their embryos would have to be destroyed under UK law. She sought to prevent this from happening.
The case went to the Grand Chamber of the European Court of Human Rights, where the judges delivered a unanimous verdict and said they 'did not consider that the applicant's right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than [Howard Johnston's] right to respect for his decision not to have a genetically related child with her'. The case gave unequivocal support for one party concerned in the creation of an embryo to withdraw their consent to that embryo's storage or use in treatment or for research.
The Human Fertilisation and Embryology Act 1990, as amended by the Human Fertilisation and Embryology Act 2008, provides for a 12-month cooling-off period if one party withdraws their consent while the other party (or parties) wish fertility treatment to continue. The most recent (eighth) edition of the Human Fertilisation and Embryology Authority's Code of Practice recommends that fertility clinics have 'procedures for dealing with disputes that may arise when one gamete provider withdraws their consent to the use or storage of gametes or embryos in treatment'.
In the case of R v Human Fertilisation and Embryology Authority, ex parte Blood, Diane Blood's husband fell into a coma, whereupon she persuaded doctors to procure and store sperm from him. He then died, and she sought to use his sperm in fertility treatment, despite the fact that he had not consented to this in writing while he was alive. The Court of Appeal's final judgment, in Diane Blood's favour, was based on the initial informal consent (an oral agreement) that he was said to have given while alive.
In the case of New Family Organisation v Committee for Approving Surrogacy Agreements, Israeli soldier Keivan Cohen died from injuries sustained in combat. His parents persuaded doctors to procure and store sperm from him in the hours immediately following his death. The hospital refused to give his parents access to the frozen sperm without court approval, as under Israeli law only a spouse can make such a request, and the late soldier was unmarried.
His family challenged the hospital's decision in court, claiming that it was their son's profoundest wish to have children, and showed the court video material in which he expressed his wish to start a family. The District Court of Tel Aviv ruled in the family's favour, despite no prior provisions existing in Israeli law regarding the permitted use of sperm extracted from the deceased. The ruling represents the first time that a court has approved the use of a deceased man's sperm to impregnate a woman he has never met.
These three cases illustrate the importance of gamete donors and gamete recipients alike consenting to fertility treatment involving them or their bodily material. These cases also illustrate the difficulty of establishing consent retrospectively when one of the parties involved in conception is deceased, a scenario that has become increasingly likely as modern science and medicine has allowed gametes and embryos to be stored, and has allowed gametes to be obtained from the unconscious and the dead.
One upshot of this is that is important to obtain clear written consent from the living, if there is any likelihood of posthumous use of their bodily material being necessary or desirable - for example, individuals in the armed forces or in high-risk professions.