Could posthumous egg donation ever be morally justified? Under the right circumstances, in my opinion, absolutely. In fact, I would submit that any kind of posthumous gamete donation ought to be handled similarly to organ donation (with one major caveat discussed below). This question is being asked more frequently now as a result of the recent tragic situation that arose in Massachusetts:

The young woman spiraled toward death, with no hope for recovery from a crushing heart attack. Doctors at Massachusetts General Hospital delivered the dire prognosis to her family, who chose to disconnect the breathing machine that kept her alive. But a few hours later, they changed their mind. The reason stunned the medical staff: The family wanted to explore whether eggs could be harvested from the woman and frozen so that she could become a mother posthumously.

“What they asked us to do made us very uncomfortable,’’ said Dr. David Greer, one of the specialists who treated the woman, “and forced us to think about what is the right thing to do here, what is the ethical thing.’’ They weighed her wishes and the medical consequences of an experimental procedure with no guarantee of success. The doctors discovered that the unconscious woman had never expressed a strong desire to have children. And they knew that harvesting eggs could hasten her death. Ultimately, the doctors decided they could not medically justify the procedure, a decision accepted by the woman’s husband.

Dr. Summer Johnson on The American Journal of Bioethics Blog weighs in:

The concerns in the particular NEJM case were clear: the wife had recently suffered irreversible brain damage as the result of a heart attack, life support was removed, and then the husband asked to have the respirator turned back on (yes, turned back on) to keep his wife alive long enough to have the hormone injections put into her necessary for the harvesting of her eggs. Luckily, the medical team did not accede to his request.

Why?

According to the NEJM article, the patient had never clearly expressed such wishes, nor had the husband. Until now. Moreover, she was on oral contraceptive pills to prevent pregnancy. No advance directive existed–not that it would have likely covered posthumous reproduction!

So what could have ever justified such a case as this? In my mind, nothing. But could there be such a case of posthumous egg harvesting, of course. In a case where a married woman suffers a tragic, sudden, life-threatening event and where she had previously expressed to her partner/husband/family the strong desire to have a child, one could strongly argue for the posthumous harvesting of her eggs.

And yes, I think this is the same standard to which the posthumous harvesting of sperm should be held to as well.

Unfortunately, this NEJM case was not one of those. The pull that the husband must have felt not to “lose” his wife must have been incredible, but the answer was not to put her through a medically inappropriate procedure, keeping her alive unnecessarily and harmfully to try to result in a reproductive act that neither she nor he would have wanted under ordinary circumstances.

While clearly there is no happy Hollywood ending to this story, it nevertheless could have been worse. We have previously chronicled the story of Marissa Evans, the mother of a man who died as a result of a criminal assault, who successfully petitioned a Texas judge to allow a posthumous sperm retrieval so that she could become a grandmother.

Ms. Evans, however, was not be the first parent who attempted to create grandchildren after the loss of a child. More than 10 years ago, a number of professionals and agencies, including myself, were approached by Howard and Jean Garber. The Garbers had lost their daughter, Julie, to leukemia. Prior to losing her battle, Julie Garber had created embryos with the use of donor sperm. Her plan was to use those embryos if she survived her cancer treatment. When she did not, her parents “inherited” the embryos and sought to have them transferred into a surrogate so that they could have grandchildren. While I refused to assist the Garbers (as did almost every professional they approached), eventually they found a surrogate who agreed to carry their dead daughter’s embryos. The Garbers’ attempt failed as the IVF transfer was ultimately unsuccessful.

Cases like the ones described above highlight the myriad of ethical dilemmas that arise when science and the law converge. As succinctly stated by Dr. Johnson, there are circumstances where posthumous retrieval is not only legally appropriate but morally and ethically defensible. A critical factor before a decision on posthumous retrieval can be made is whether there exists a prior manifestation of intent on the part of the deceased to procreate after death. I would also hope that the family members (particularly in situations where no surviving spouse exists), will consider the impact on bringing a child into the world that would be considered by many to be an orphan.

There is a very delicate balance between constitutionally protected reproductive freedoms and the best interest of the resulting child. Undoubtedly these competing interests will provoke passionate debate with little consensus.