John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. He is especially interested in moral theology and the thought of John Paul II.
Peter Zhu was a West Point cadet who died last February from massive injuries sustained in a skiing accident that left him with a fractured spinal cord and oxygen deprivation to the brain. Maintained on a ventilator — not unusual when organs are to be donated — Zhu’s parents also requested “postmortem sperm retrieval.”
“Postmortem sperm retrieval,” according to Washington Post reporter Allyson Chu, is not common but is sometimes employed when a spouse wants to preserve the option of having a child by the deceased spouse. Zhu, however, was single. His parents requested postmortem sperm retrieval ostensibly to honor their son’s purported desire to have “five children and a horse ranch.” They also noted their Chinese cultural interest in preserving familial lines through a male heir.
Initially reticent, Westchester Medical Center asked a New York State judge for guidance. After obtaining his signoff, it procured the sperm.
The Washington Post reporter conceded that the Zhu case posed two “ethical implications” that seemed almost at crosshairs: is it “appropriate consciously to bring a child into this world with a dead father?” And how does one assure that the “wishes of the deceased are being respected?”
What seems absent from consideration of those ethical conundrums is a sharp perspective on the rights of the child.
That issue is somewhat to be found in the question of the “appropriateness” of conceiving a child by the gametes of a father who is already dead, but it seems more caught up in questions of propriety if not an outright Kantian/Rawlsian quest to formulate some general rule. It doesn’t quite get at the acid test of “the best interests of a child.” (Considering the ethical issue from the perspective of fulfilling a decedent’s “wishes” doesn’t get to the “best interests of the child” at all).
The same can be said of the seven-year-old “Ethics Committee Opinion” of the American Society for Reproductive Medicine (ASRM), which deems posthumous sperm retrieval “ethically justifiable” in some cases, but did not consider one like Zhu’s. I qualify that judgment because one can argue that the ASRM view does not necessarily rule a case like Zhu’s out as much as it has not really opined on the question.
A tenure-track ethicist looking for “new” and “creative” ways to justify next steps into a Brave New World might argue that ASRM’s Ethical Opinion, while preferring written instructions from a decedent, was open to retrieval absent such instructions when made by “the surviving spouse or partner.” Requests initiated by a parent seem more tenuous but, in the wake of Eisenstadt v. Baird and especially Obergefell v. Hodges, binding procreation to marriage seems so … 2012-ish. If procreation is not tethered to marriage (as Obergefell proclaimed in finding no justification for sexual differentiation as an essential element of marriage and which ASRM’s own Opinion admits when speaking of the interest of a ‘spouse or partner”), then does not a single person have an interest in procreation, as Eisenstadt established when it severed the marital nexus to contraception on which Griswold v. Connecticut was based just seven years earlier?
And if a single person does, can that interest only be advanced by his direct and affirmative instruction? In other words, can that interest not be promoted by those presumably aware of the decedent’s desires, cut quick by a sudden and unprovided-for death, e.g., next-of-kin, including parents? ASRM’s Opinion considered whether an individual’s interests in procreation can survive death and did not exclude it: it ruled it out only when contrary to evidence the decedent “would not have wanted it,” but only “discourage[d]” it when the decedent’s will was ambiguous.
Again, ASRM’s focus is wholly on what the possible father might have wanted or not wanted, while the best interests of the possible child are simply a non-question.
Contemporary Polish philosopher Zbigniew Stawrowski has coined the phrase “sleek barbarians” to designate those who, among other things, advance the desiderata of adults (usually under some claim of “rights” or even “victimhood”) to trump the rights and interests of children. Yesterday’s barbarians might have worn animal skins; today’s usually don white coats for the lab or $1,000 power suits for the courtroom.
Catholic bioethicist William May scored artificial techniques of reproduction, both in terms of why we should not resort to them as well as why they affront the dignity of a child, by insisting a child should be “begotten, not made.” (This obviously also has theological implications, but I intend to address all people of goodwill). A child should be the outcome of a living and historical embrace of human persons (which Catholics would also recognize as involving the action of God), not the product of a clinical technique performed by outsiders in a laboratory. May insisted it is not just a matter of ethical duty – a “should” on the part of adults – but a right of the child, whose violation is also a “should not” adults ought not to commit.
In Zhu’s case, we go even one step further. May criticized artificial techniques of reproduction because they in principle allowed the severance of the procreative significance of sex from its unitive meaning: these techniques could but did not necessarily have to have any connection to married couples. From introducing third-party gametes to gestation in a “surrogate’s” womb to servicing “same sex spouses” that ex definitione will not provide a child with a mother and a father, artificial reproduction in principle treats marriage and procreation as unrelated.
Zhu’s case makes that separation explicit. There is no spouse. Zhu will never know the woman/women whose ovum and womb will give and nurture the life that his sperm might father. His act of “fathering” cannot even be argued to be unconscious or undeliberate: he’s dead. Except when abetted by technology, parenthood does not arise from a generic intent “someday I want to have five kids and a horse ranch.” It results from up to five personal human embraces at a given place and time in history.
There is no guarantee that the child may ever know his genetic mother or the womb which bore him. Indeed, it is likely that these “services” will be contracted and the child raised by his grandparents, who will be de facto parents of the child. Like the Nebraska sexagenarian who recently served as a “surrogate” to give birth to a baby girl conceived from an ovum donated by her homosexual son’s “spouse’s” sister, fundamental human institutions are at stake whose fungibility should not just be a matter of laissez-faire “reproductive rights.” Legitimate questions should be asked about blurring the role between “grandma” and “mommy,” even if technology allows us to slice and dice maternity into genetic, gestational and social “components.”
What we really need to ask in Zhu’s case is whether it is moral to set out to make an orphan? As noted, this child can never know his father and most likely will never know his mother. Sacred Scripture of both the Old and New Testaments makes the widow and orphan particular objects of the Lord’s solicitude, precisely because their lot is a tragic one of being deprived of what they ought to have. How, then, should we approach a project which, nice intentions notwithstanding, deliberately aims at making an orphan?
Human finitude exists sometimes for a reason, even if technology enables us to try to overcome it. That we can do something does not mean we should. There is a time to be born, and a time to die.
All views expressed in this essay are exclusively the author’s.