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The Diane Blood Case (1997)

Helen Watt on the ethics of using a deceased husband's sperm to produce a child. A pdf is available here.

The case of Diane Blood, who sought permission from the courts to be inseminated with her dead husband's sperm, aroused a great deal of public sympathy. Many took the view that Diane Blood's desire to have her husband's child should certainly be satisfied, and that it was harsh and pedantic to attempt to use the law to prevent this.

It is, however, important to do justice to all the moral issues raised by this case - particularly in view of the fact that the interests of Mrs. Blood herself were not, perhaps, as clear-cut as has sometimes been maintained.

Consent to use of sperm

The case was discussed very largely in terms of consent. Thus some argued that written consent was required for the posthumous use of sperm in fertility treatment, while others argued that the fact that Mr. Blood had agreed with his wife that this could happen should the need arise sufficed to constitute consent.

It is, in fact, doubtful that an unwitnessed oral exchange between husband and wife can be seen as formal consent to something as momentous as the posthumous creation of a child. Moreover, it can be argued that one simply cannot give valid consent to the extraction of one's gametes for reproductive purposes after one falls permanently unconscious, or after one dies. (Compare the case of sexual acts performed on a person in a coma: morally, these would constitute rape of that person with or without prior consent to such acts being performed.)

Respect for human generation

Whether or not some form of prior consent is given to the taking of sperm from a dead or unconscious person, it is wrong to use a dead or unconscious person as a source of genetic material for the generation of a child.

Generating a child is an act of great importance, which must take place in a way which is consistent with good parenthood and the welfare of the child. Where a child is created through a conscious, loving, interpersonal act between husband and wife, he or she comes into being by means of an act which has its own inherent dignity, even apart from the fact that conception may result. Symbolically, marital intercourse is, or can be, an expression of the couple's unconditional acceptance of each other, in a way which is receptive - or, at least, not intentionally hostile - to a new human life. Whether or not such intercourse does succeed in generating life, it will be worthy of doing so by virtue of its inherent significance. The couple are prepared, by such an act, to welcome a child into their own relationship, and to treat him or her as a person equal in dignity to themselves.

In contrast, where a child comes into being, as far as the parents are concerned, through the manipulation of their gametes, he or she is produced by a process very similar to the manufacture of an object: a process only explicable in terms of the parent or parents' desire to 'make' a child. The danger is that the parents will be more inclined to think of their child as an object of possession if the child comes into being by means of an act with the symbolic content of production. The impact of this symbolic content can, indeed, be seen in the widespread abuse of the 'products' of non-sexual conception: these embryos are mass-produced, screened, discarded, used in experiments, etc. There is therefore nothing abstract about concern to protect the symbolism of natural procreation; such concern is amply justified by the way many children (though not, of course, all children) are treated after non-sexual conception.

Generation of children from dead parents

Where a dead or unconscious person is used as a source of reproductive material, it is clear to what extent the child's creation has been deprived of personal significance. An act of artificial insemination, where the father has already died, cannot represent the couple's ongoing commitment to each other. Nor can it lead to the 'welcoming in' of new life to an existing relationship. The father is no longer present as a living human being; to use a part of him to make a child is a travesty of normal conscious human procreation.

It is a natural consequence of the fact that non-sexual reproduction is so radically depersonalized that such reproduction can take place after the death of one parent. In the case we are considering, the husband's presence is seen as replaceable for the purpose of making a child, although his sperm is not. It is proposed that he be made a father not in the full sense of someone who commits himself to the care of the child he and his wife may have but in a deeply impoverished and attenuated sense after his life and marriage are over.

The child's need for a father

The need of the child for a father is one aspect of the case which was neglected in the public discussion, despite the fact that the Human Fertilisation and Embryology Act specifically requires that this need be taken into account in giving fertility treatment.

Mrs. Blood argued that she could have had sperm donation from an anonymous donor - who could, indeed, be dead by the time his sperm was used in fertility treatment. It is true that single women are sometimes given fertility 'treatment'; however, this practice is of doubtful legality, and is morally unjustified. To treat a father simply as a source of genetic material - someone whose presence will not be required at any stage - is to ignore the strong interest of children in forming relationships with those who bring them into being.

It is well known that adopted children - who, of course, are normally adopted by couples - frequently develop a strong desire to know their birth parents. The child of a single woman is not simply deprived of his or her genetic father but is deprived of any father, genetic or social. Children - male children in particular - need a father as well as a mother both for their general emotional development, and to learn about male-female relationships.

In the case we are considering, the child is not deprived of a father by accident, as where a child is orphaned through no fault of anyone involved. Rather, the child is deliberately created in a situation of parental deprivation. In the case of fertility treatment, it is not simply the mother who is involved in the creation of a child deprived of a father, but doctors whose activities are rightly placed under public supervision. Much as one can sympathise with the desire of single women to have children of their own, this desire must surely be subordinate to the interests of the children they may have.

'Treatment' of fertile women

A separate concern is the fact that a single woman who is artificially inseminated is not receiving medical treatment. A woman is not infertile, or one of an infertile couple, if she is unable to conceive naturally because her husband is dead or absent or non-existent. Why should someone who is not infertile, or one of an infertile couple, consider she has a right to interventions to help her to conceive?

It has been claimed that Mrs. Blood has a right to the use of her husband's sperm. This is, however, very doubtful. Even her husband did not 'own' his sperm in the sense of having the right to do what he liked with it. Society has a strong interest in the creation of children in circumstances which are conducive to those children's well-being - particularly where health care professionals are involved in their creation.

Moreover, it must be asked if the interests of single women are truly promoted by the production of a child by means which are morally questionable and which leave them with the sole task of bringing up the child who is produced. Whatever her desire to have a child, a single woman is faced with a difficult task in bringing up a child single-handed. If the father is not present at any stage - not even during pregnancy itself - the woman is deprived of an irreplaceable source of support. Two people, in a committed marriage relationship, should be involved in the creation of a child, and two people should be involved, as far as possible, in caring for the child so created.

A woman who has been recently bereaved may be especially badly placed to make an objective judgement of the effect of single parenthood on her and on the child.