In her current controversy (see page xxx) Merle Spriggs discusses the case of Simone Baker and Andrew Clough.¹ From the day they met in 1997, Simone and Andrew talked about having children. They discussed how many children they would like to have and even picked out names for them. The couple were due to marry on 19 April 2003, but on New Year’s Eve 2002 Andrew fell to his death while visiting the Roaring Meg Falls in northern Queensland. At the time both he and Simone were 29 years old. Following his death, Simone made a request to the Brisbane Supreme Court to harvest and freeze Andrew’s sperm to enable her to have a child. The request was refused by the court. In refusing the request the judge referred to a law in Queensland making it a criminal offence to “interfere with the body of a dead person without lawful justification”.

In discussing cases, bioethicists often proceed swiftly from the 10 line case outline, such as the one above, to analysis in terms of ethical principles. This means that we sometimes miss some of the subtleties and salient moral features of such cases; our subsequent arguments and recommendations being the poorer for it.² The search for a rich understanding of the morally relevant features of cases should play a more central role in analysis and judgement in bioethics than is often the case. This has broad implications for the way we ought to go about “doing ethics”. Cases nearly always involve subtle contextual features of real moral significance and this provides good reason for believing that, wherever possible, decisions ought to be made by those who are most closely involved. They are likely in many cases to have a better grasp of these important contextual aspects than any health professional, lawyer, or ethicist. In addition to their greater contextual understanding, further justification for a devolved process of ethical decision making (and of conflict resolution) is provided by the fact it is reasonable to hold that, wherever possible, decisions ought to be made by those who are going to be affected by them. They can be said to have a legitimate interest in the outcome because it is their life that will be affected. These are the people who will have to live with the consequences. In most cases these arguments mean that decisions ought to devolve to individuals. In others where more people are involved, or where there is disagreement, it suggests a deliberative approach to decision making.

The adoption of a devolved and deliberative approach of this kind does not imply that anything goes. The adoption of this approach might be justified in terms of three claims. Firstly, people are usually in the best position to grasp the morally significant features of decisions affecting their own lives. Secondly, the wishes of those affected by a decision ought to be accorded special moral significance in the making of that decision. Thirdly, decisions arising from a process involving, and seen to be reasonable by, those who have a legitimate interest in the outcome, gain legitimacy by virtue of the fact that they have been subjected to “public reason”. The reason why not just any decision is acceptable on this account—even if all parties agree—is because these three justifications, combined with a commitment to consistency, require the placing of certain constraints on the deliberative process. The key constraint might be phrased as follows: the outcomes of such a process are justified to the extent that they are themselves consistent with the principles justifying the deliberative approach itself—that is, are conducive to ways of living in which the moral status of those with a legitimate interest in the decision is taken seriously.

What does this mean in the case of Andrew and Simone? What would it mean to take Andrew’s legitimate interests in what happens to his body after his death seriously? It seems clear that at the very least an approach of this kind would accord special moral significance to any evidence of Andrew’s views about what he did and did not want to happen to his body (and possessions) after his death. For this reason it would be particularly important, in any deliberative analysis of the case, to try to ascertain whether Andrew had in fact previously expressed any such views.

Everything in the lives of Simone and Andrew and of their families before his death had been geared towards their wedding, and to their future family life as a couple. Newspaper reports at the time provide a lot of evidence of Andrew’s desire to be a father and to create a family with Simone. He had changed his health insurance to cover “family”. He had, with Simone, picked out children’s names and turned one of the rooms in their home into a nursery. There can be little doubt that Andrew was looking forward to being married and to living as a family with Simone and their children. Is this also good evidence that he would have wished (had he thought about it) for Simone to have his child after his death? We have good reason to be cautious about this. The sad fact is that, even if Simone were to have his child, despite his wish to be part of a family with Simone and their child, he is not going to be. Despite his wish to get married and see his children in their nursery, this is not going to happen. It is true that there is evidence that Andrew wanted children but this procedure is not going to give him children in the sense he envisaged. There is good reason to doubt whether Andrew had ever contemplated a situation like this (why would he have?) and therefore good reason to be cautious about whether he would in fact have consented to the use of his sperm in these circumstances. It is possible that had he been given the opportunity he would indeed have chosen to consent. He might also however have chosen not to consent (perhaps even on altruistic grounds). We have no evidence either way. My personal position on this (and this may not be relevant) is that I would want my partner, after a suitable period of mourning, to try her best to get on with her life, perhaps finding a new partner. I may be unique in this of course, but I doubt it. There is no evidence that Andrew would have made a similar choice, but neither is there evidence he would not. One thing is certain however, wanting to “become a father” is not the same thing as wanting someone to have one’s child after one’s death.

One further piece of evidence related to what Andrew would have wanted that emerged during the court proceedings was the fact that he had been a sperm donor as a student. Surely, it was argued, this implied that he had no objection to his sperm being used by women wanting children and, a fortiori, no objection to his sperm being used to start a pregnancy in Simone. There can be little disagreement with this. It seems reasonable to assume that if the original sperm sample still existed in a usable form there could be no objection to it being used for a pregnancy in Simone, or indeed in anyone else. Unfortunately the original sperm sample no longer exists. Should Andrew’s donation of sperm as a student be taken as justification for the postmortem use of sperm extracted from his body? There are several reasons to doubt this. Firstly, donating sperm on one occasion (presumably in the traditional way) cannot in any meaningful sense be said to imply consent to the extraction of sperm from one’s body after death. That is, without stretching the concept of consent so far that it becomes meaningless. Secondly, if such consent were to be considered valid it would have a number of interesting implications. It would for example apply to the extraction of sperm from Andrew’s body for any woman who wanted it, not only Simone. Applied more widely it would also seem to imply that anyone who had been a sperm donor in life would be available as a sperm donor after death—again, to any woman who requested it. Presumably this argument would also apply to the harvesting of eggs from deceased women who had in life been egg donors, and so on. This would be likely, at the very least, to make people extremely cautious about making such donations.

The court was also presented with a third, more convincing source of information about Andrew’s wishes. For in addition to being a sperm donor as a student, Andrew had also consented to being an organ donor. Could Andrew’s consent to “organ donation” be taken to imply his consent to gamete donation? By contrast with his earlier sperm donation, in consenting to organ donation Andrew had clearly been consenting to the invasive use of his body after his death. Might this be said to imply that he would have had no objection to the use of his sperm after his death in the way proposed? A key part of any answer to this question will be a consideration of whether those who complete organ donation forms can be said, on any reasonable interpretation, to be aware of the possibility of the use of their gametes in reproduction, and hence to be providing “informed consent” to this. My suspicion is that this is not the case and that most people who carry such cards currently believe themselves to be (and hence are) consenting solely to the use of their major organs—that is, heart, kidneys, liver, and so on. I suspect therefore that Andrew had not envisaged the possibility that sperm would be extracted from his body and used for assisted reproduction in Simone or in anyone else (for, once again, if valid it would apply to other women in addition to Simone) after his death.

Does this matter? Is it not reasonable to allow the extraction to proceed on the grounds that it is consistent with the spirit of Andrew’s consent to organ donation even if not explicitly stated? I think we need to be cautious about this. To the extent that we can be said to have an interest in what happens to our bodies after we die, the way in which our bodies are treated after our death ought to be commensurate both with our explicit wishes and with relevant cultural practices of which we might reasonably be expected to have been aware and to have anticipated. Taken together this implies that the use of the body after death in medicine is only acceptable to the extent that either the person has given explicit and informed consent, or, to the extent that there is broad public awareness and acceptance that this is the way bodies will be treated unless an individual objects.

In the current case neither of these conditions pertains and this would seem to imply that Andrew’s sperm ought not to be extracted. If as a society, and as individuals, we wish (as I think we should) to allow the possibility of postmortem gamete donation, we need to encourage couples (and individuals) to discuss these issues and make their wishes explicit, where this is appropriate. At the same time there is a need to encourage a broader public understanding of the issues surrounding organ donation, and to reach agreement about what constitutes good practice in this area.