Bearing a dead man’s child: the impact of Judges’ personal values

Consider this hypothetical scenario: a man tragically and unexpectedly dies and his partner wishes to harvest his sperm so that she can bear his children. It is a situation that raises a number of legal, ethical and medical issues. What complicates the discussion of this hypothetical scenario is that it is not hypothetical. In the past six years, there have been five cases where judges have been asked to decide on situations like this one. In the first and the last cases, the courts have permitted the sperm to be taken, but in the intervening three cases the opposite conclusion was reached.

This topic is one that the community is likely to disagree on because we all have different values. Judges are also people and obviously part of our community too. Although these decisions are made according to law, where they involve “grey areas” where the law is not yet decided, the values of the judges themselves inevitably inform the decisions they make.

There were two issues in each of these cases: whether the courts have the power or jurisdiction to remove sperm in these circumstances and if so, whether they should allow the sperm of a man who is dead, or shortly likely to become so, to be used by the partner to become pregnant. All of the decisions have been based on conclusions about jurisdiction but there have been some interesting observations about the second issue, which is perhaps the more interesting and contentious of the two.

The majority of judicial comments suggested that the courts would not favour permitting a partner to become pregnant using the sperm. There were a number of concerns raised by the judges but this article only addresses two of them: that the child would be raised without a father and that the partner may be acting irrationally in making such a decision. These are relevant factors to think about when deciding a case like this but it is suggested that we need to be careful about how much weight we attach to these considerations.

Although some would strongly disagree, there is probably some general consensus in our community that an ideal situation in which to raise a child is where there are two loving parents, a committed extended family on both sides and a wide circle of friends who are both interested and involved in the child’s life. But we don’t live in an ideal world. Many children are not raised in that environment.

The fact is that happy, well adjusted children are currently being raised without a father – or without a mother for that matter. Indeed, according to the Australian Census in 2001, 21.4 per cent of Australian families with children aged up to 14 years are headed by a lone parent. Some argue that a distinction can be drawn between situations where we as a society make a decision to permit a child to be raised without the biological father (as is the case here where courts decide) and those where his absence is thrust upon us through death or divorce. And perhaps that is something to consider.

But it is suggested that a more appropriate approach is to look at the various family situations that we find in everyday Australian life and think about whether permitting the use of this sperm is an appropriate step to take. The absence of the biological father is certainly relevant but so is the situation of the mother and the circumstances in which the child would be raised. The courts operate in the real world, not an “ideal” world, and their decisions should take account of that.

A second concern raised was the worry that the partner may be making a decision based on irrational grounds because of the trauma of the unexpected or impending death. Again, it is accepted that this is a reasonable factor for the courts to consider but this of itself should not preclude the harvesting of the sperm. It is possible to allow it to be taken but prohibit its further use without the authorisation of the court. This is what happened in the two cases where the courts have allowed the sperm to be harvested. Another alternative is to permit the sperm to be taken but place conditions on its use, such as counselling for the partner or ethics approval from the appropriate IVF body.

It is also suggested that the courts need to be careful about making assumptions as to what is irrational. While the relevant judge him or herself might think the course chosen by the partner is unwise, after the appropriate counselling and reflection, surely the partner herself is in the best position to decide what to her is rational.

The possibility that a woman can become pregnant using the sperm of her partner who is dead, or soon to be so, poses difficult questions for the law. It is a good example of the challenges that advances in medical science can raise for judges. The law as it currently stands is uncertain with different courts reaching different conclusions and it is likely that the final resolution of this issue will need a decision from an appeal court. This article has discussed some of the ways in which these decisions are informed by values. This is inevitable, particularly in grey areas of the law like this one where there is no clear answer because judges are people too. It is suggested, however, that those making these decisions need to be careful in scrutinising their own values and the role that they play in their decisions.