Who owns a man’s sperm? For most of human history, the answer was obvious. The man owns it, unless, of course, he deposits it in a woman. Then she owns it, and he can’t ask for it back.
In this age of burgeoning reproductive technology, the answer is no longer clear. Sperm deposited in a sperm bank by a man preparing for the ravages of chemotherapy or the potential ravages of war can be used by others beside him, and can even be used after his death. That situation presupposes a man who has expressed a wish to have children in the future and has taken specific actions (collecting his ejaculate, giving it to the sperm bank, and paying for its preservation).
However, it is also possible to harvest sperm directly from the testicles of a man who has never given consent to have his sperm taken, including a man who is recently dead. That’s exactly what a Texas woman, the mother of a young man, dead after a bar fight, is trying to do.
According to an article on MSNBC:
… Nikolas Colton Evans, 21, died Sunday at a Brackenridge hospital after being punched and falling outside an Austin bar March 27.
His mother, Marissa Evans, told the Austin American-Statesman newspaper …”I want him to live on. I want to keep a piece of him,” …
Court documents said the sperm had to be collected within 24 hours of Nikolas Evans being removed from life support unless the body was cooled to no more than 39.2 degrees.
[Travis County Probate Judge Guy] Herman ordered the county medical examiner’s office to continue storing the body at the proper temperature until the sperm could be collected…
While the judge’s sympathy for a distraught and grieving mother is admirable, his decision is wrong, both ethically and legally.
Parents do have the right to authorize the harvest and donation the organs of a child who has died, but sperm are not like other body cells. In and of themselves, they are useless to anyone else. Their value comes from the ability to use the sperm to conceive a baby, the biological child of the deceased. The ethical issues raised are complex.
Who owns a man’s sperm? Can he be made to father a child without his express action, involvement or consent? These are issues of basic reproductive rights.
The issue of reproductive rights has been adjudicated many times. No one has the right to force a man to become a parent without that man taking action to become a parent. The action can be something as simple and unintentional as having sex with a woman capable of conceiving. Although the man may not have the intention of becoming a parent, his action in having sex makes him ethically and legally obligated for any offspring that result.
Depositing sperm in a sperm bank, against the possibility of being rendered infertile in the future, or for use in infertility treatment, can also serve as taking action to become a parent, as long as the man gives consent for the implantation of that sperm in a specific individual, or makes legal arrangements in advance to cede control of the sperm in the event of his death.
Merely depositing the sperm is not enough. Women who have tried to use the sperm of a former partner, after separation or divorce, are not allowed to do so. Indeed, the courts have ruled that women cannot use embryos created with a partner’s sperm before separation or divorce in the absence the man’s specific consent. These rulings have established the principle that the action of donating sperm does not establish the fact that a man wishes to become a father with a particular woman at a particular time.
The restrictions on harvesting sperm, an invasive procedure, should be even higher. The Texas mother argues that her son always wanted to have children, but that is not enough. Donating sperm to a sperm bank implies that a man wants to have children, but those sperm cannot be used to create those children unless the man agrees to implantation in a specific woman at a specific time. Both ethically and legally we acknowledge that men have every right to change their mind. If we cannot deduce a desire to have children from the action of depositing sperm in a sperm bank, we certainly cannot deduce such a desire from vague claims of wanting to be a parent in the future.
The issue of control over sperm applies only to men, but there are analogous issues that apply to women. Now that eggs can be harvested from women, a parent, spouse or lover could request harvesting the eggs of a woman who is brain dead. Alternatively, a parent, spouse or lover could request that the brain dead woman be artificially inseminated and her body used not only to conceive a child, but also to support that child until birth.
The control of sperm (and eggs) is a matter of both bodily autonomy and reproductive rights. No one can be forced to become a parent unless he or she takes specific actions to conceive a child. There mere desire to have children in some indeterminate future does not meet that standard.
The Texas judge is wrong. The death of a child is a tragedy, but that does not allow the grieving parent to harvest the child’s reproductive cells in an effort to “keep a piece of him.”
