By
msnbc.com contributor
updated 6/27/2007 7:27:52 AM ET 2007-06-27T11:27:52
COMMENTARY

The death toll in Iraq and Afghanistan continues to climb, and President Bush is warning that even heavier casualties lie ahead in the months to come. As a result, some American women are being faced with a tragic choice: Should they have a dead soldier’s child?

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There are no clear statistics, but a number of men — some married, some not — deposited their sperm before they were sent to war. This raises a number of questions: Who should be allowed to use that sperm? How many times? How long after the death of the donor? And how long should the sperm be kept frozen if no one claims it?

Right now, there are no laws or rules governing the use of sperm after a man has died. Children already have been born in the United States, Israel and other countries from sperm deposited in sperm banks before their fathers went off to war zones.

Before Staff Sgt. Stephen Sutherland was deployed, for instance, he banked sperm to ensure that he could have a child with his wife, Maria. In November 2005,the 33-year-old was killed in Iraq.

About a year after his death, Maria was inseminated with his sperm and is now expecting a boy in July. “It will be refreshing to have a little piece of him that I can look at every day,” she tells NBC News.

But the sperm doesn't always go to the widow. Girlfriends have used sperm to make children, and in January, an Israeli court ruled that parents of a deceased soldier could use sperm taken right after his death to impregnate a woman he never met.

No permission
The fact that many of these children are much-loved should not distract us from the fact that we need to pay more attention to the technological advances that permit the creation of children when one or both biological parents are dead.

Depositing sperm before heading off to a dangerous war zone is not the only way children have been created well after the death of their fathers. At the request of wives, fiancées and, in some cases, parents or girlfriends, sperm has been taken from men who have unexpectedly died from strokes, heart attacks or traumatic injuries — usually without any explicit written permission from the deceased.

Unlike those who freeze sperm knowing what might happen to it if they die in a war, these other men have rarely said anything about whether they would want to have a child if they should unexpectedly die. Nor is it clear with whom they would have wanted to have a child (a fiancée, a longtime girlfriend, a surrogate mother hired by their parents), how many children they would have been willing to create or how long a period of time after their deaths they would have felt comfortable having a child created.

Evolving technology
Sperm is much easier to freeze than eggs, but the technology is evolving and egg-freezing or egg procurement from a cadaver may soon be a reality, opening the door to even more ways to make babies.

It may not be long before a sister or a mother or a grandfather, grieving from the loss of a loved one in a car accident, tornado or hurricane, makes an incredible request: Would doctors be willing to remove sperm and egg from a man and a woman who are both dead to create a sibling, child or grandchild?

As reproductive technology takes us toward ways of baby-making that no one could have anticipated prior to the birth of the world's first test-tube baby, Louise Brown, in 1978, shouldn’t we set some rules? Shouldn't society keep an eye out for the best interests of any children created after the death of one or both parents?

Perhaps the law should insist that no one can use the sperm, egg or embryo from anyone who is dead without their explicit written consent.

Maybe a mandatory waiting period of 90 days after a death before using that tissue makes sense to help ensure that no one acts out of grief or pressure. Ninety days is admittedly an arbitrary number, but the point is to allow a cooling-off period right after learning of a loved one's death to make sure that such a momentous decision has been carefully thought through.

Deciding that clinics must destroy the sperm, egg or embryo of the deceased five years after their death may be another way to avoid situations in which children are made without any real assurance that someone will be there to love and care for them.

What about expanding organ and tissue donation to include sperm, eggs or even embryos? Changing our wills, advance directives, and organ and tissue donor cards to include our wishes about posthumous reproduction is certainly a step that lawmakers in every state ought to consider.

Reproductive technologies have given many people the greatest gift of all — a child. But it is dead certain that if we do not get our laws governing the creation of children after death in place, they may also create a grave injustice — children with no competent person to care for them, whose parents would not have wanted to see them created in the first place.

It is long past time for our laws to catch up to a technology that more and more people are already using to build families, even after they are dead.

Arthur Caplan, Ph.D., is director of the Center for Bioethics at the University of Pennsylvania.

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