Critics argue that even if someone wanted to have biological children—for instance, if they were actively trying to have children before they died—it can’t be assumed that they would have wanted to become a posthumous parent. As Jason Hans, professor in family sciences at the University of Kentucky, puts it, some argue that “posthumous parenthood does not provide the experiences that make parenthood meaningful while living.” By being dead, the deceased father has no way to benefit.
But, crucially, on an experiential level, they also have no way of being subjected to any harm. With this view, we can ask, as the ASMR itself does, “How can [the dead] have a stake in anything? How can they be harmed or benefited?”
Though this accounts for the fact that posthumous parenthood isn’t inherently unethical, we must still try to work out whether PMSR is something a person would have wanted, or at least something they wouldn’t have objected to. The best way to do that, according to both Magnus and Hans, is to trust the ones who were closest to them.
Magnus says that this can be done using best practices from other forms of end-of-life care. Clinical teams often make end-of-life decisions without documentation about what the patient would have wanted; in only 20 to 30 percent of cases will patients have left advance directives. Still, doctors allow the families to render subsidy judgment, saying, “You know him better than we do at the hospital. We’ve never met this guy before he showed up,” Magnus says.
“It’s not obvious that the decision about whether to have a kid is necessarily weightier than the decision of whether to live or die,” argues Magnus. “Shouldn’t we allow the loved ones to make that call under those circumstances?” Hans agrees, adding that “the default assumption can and should be that the deceased would consent to a surviving spouse’s request for PMSR.”
In addition, as thinkers like Julian Savulescu have argued from a utilitarian perspective, we should presume consent in these situations, because it will benefit the partner who deeply wants it and because it will benefit the child if we think that it’s better for them to exist. As Hans says, “Procreation is viewed as a fundamental legal right by the US Supreme Court,” so this shouldn’t have to change when one parent, whose consent we would be able to assume, is no longer alive.
Another consideration might be around the life of the future child, particularly worries that it’s unethical to bring fatherless children into the world or unfair to bring children into the world with so much expectation. However, single mothers can and do often partake in assisted reproduction with a sperm donor. Plus, many children are born with deceased parents—when they die before, or shortly after, they’re born. The same argument isn’t made that these children shouldn’t exist or that their life isn’t worth living.
Though the recommended 24-hour time frame for PMSR could change with the University of Miami’s case report, we must still question whether it’s ethical to require such a momentous decision to be made in the few days after death. When the dignity of the body in death is still generally regarded as absolute across societies, how do people deal with the psychological aftermath of beginning such a process? Crucially, the ASRM dictates that spouses wait at least a year before using the sperm to allow “adequate time for grieving and counseling.” Since the surviving family must wait a year to use the sperm anyway, they’ll avoid making the decision to conceive the child in the midst of grief and will have preserved at least the option to use it.