By Shelly Simana
Omri Shahar was killed in a car accident when he was 25 years old. At his death, Omri’s parents petitioned the Israeli family court for posthumous sperm retrieval. The request was approved yet, one year later, they submitted an additional request—to use the sperm to fertilize a donated egg, implant the embryo in a gestational carrier, and raise the child. The basis of their request was Omri’s interest in “genetic continuity.” This interest is about individuals’ desire to leave a “piece” of themselves in the world and maintain a chain of continuity. It is about perpetuating one’s genes to future generations as a liberal expression of personal identity and a communitarian expression of family heritage.
The topic of posthumous reproduction got me thinking about an interesting question that is worth pondering—to whom should the interest in genetic continuity be attributed? While attributing interests to living individuals is well-established in the legal literature, the topic of whether deceased individuals also have interests has received less attention. This blog post offers a typology of approaches to attributing interests to deceased individuals. This classification includes three categories: (i) one that recognizes that the deceased can hold interests, (ii) one that objects to the possibility that the deceased might have interests, and (iii) one that distinguishes between ante-mortem and post-mortem persons and holds that only the former can hold interests. Recognizing the interests of the ante-mortem person means protecting his or her interests regarding events that might occur after that person’s death.
Approach 1: The perception that a deceased person has interests can be driven by a belief that he or she still “exists.” If people do not cease to exist upon their death, then they can hold interests. Proponents of this approach explain the recognition of the deceased’s interests in various ways. According to one line of reasoning, there is life after death. Based on the belief that a person continues to exist after death, it is possible to claim that the deceased does not cease to hold interests. Fred Feldman is a representative of this view. In The Termination Thesis, Feldman argued that when a person dies, he or she does not simply cease to exist; the assertion that he or she is a member of the Homo sapiens species is maintained even after death. A second explanation relies on one’s symbolic existence. Daniel Sperling in Posthumous Interests: Legal and Ethical Perspectives claimed that individuals’ symbolic existence stretches beyond their death, due to the fact that humans belong to a community and have relationships with others. He introduced the concept of the “human subject,” which is the subject holding all human interests: “pre-birth interests,” “life-interests,” “after-life interests,” and “far-long interests.” The human subject has a persistent, non-material existence in time and remains the same both before and after death. Another explanation is related to the influence that the deceased continues to exert after his or her death. As Matthew H. Kramer explained in Do Animals and Dead People Have Legal Rights?, the deceased has influence “on other people and on the development of various events, the memories of his that reside in the minds of people who knew him or knew of him, and the array of possessions which he accumulated and then bequeathed or failed to bequeath” (p. 47). Based on Kramer’s approach, the connections between the deceased and living individuals decrease over time as family members and friends die. Once the influence dwindles, the deceased’s interests tend to do the same.
This approach can be found in several legal fields. In the United States, some states have criminalized the defamation of deceased individuals. In Israel, the law protects the interests of the deceased regarding defamation. It holds that defamatory statements published after a person’s death shall be treated as if they had defamed a living person. Moreover, certain states in the United States have a civil “wrongful death” statute. This means that when a person dies due to the negligence or misconduct of another person, this person can be sued for “wrongful death.” Any damages awarded belong to the estate and can pass to different parties, as directed by the deceased’s will. Also, in Israel there is an obligation to respect the wishes and guard the dignity of the deceased. Penal law states that a person who trespasses on any place of burial or on any location for funeral rites or depositary for the remains of the dead, along with any person who offers indignity to a corpse, is liable to imprisonment for three years.
Approach 2: A second perspective claims that only living individuals can have interests. At the moment of death, a person’s interests cease because there is no longer an entity to possess those interests. As compared to living individuals, who have the ability to experience and maintain different mental states, the deceased is merely a corpse. Under the second approach, some philosophers have argued that while the deceased cannot hold interests, living individuals can. This means that survivors are protecting their own interests by respecting the deceased’s wishes. For example, Joan C. Callahan argued in On Harming the Dead that although the deceased can have no interests—since “A’s death is the termination of A and all his capacities, including his capacities to gain or lose” (p. 343)—such interests can be passed to living interest-bearers. The obligation to dispense of deceased individuals’ property after they pass away is a responsibility to, for instance, their heirs, rather than to the deceased individuals themselves.
This approach can be found in several jurisdictions as well. In the United Kingdom, for example, the deceased cannot be defamed. Defamation is a personal suit action that cannot be brought on someone’s behalf. If a person is dead, he or she no longer has a reputation that is, in legal terms, capable of being damaged. Comparable approaches have been adopted in the United States and Australia. Another legal field is organ donation. In Israel, the signature on organ donor cards is not legally binding and it is treated solely as a statement that the family is asked to respect. The family can veto the donation of the organs, despite the deceased’s wish to donate them. In Australia, the family is asked to confirm the deceased’s donation decision before transplantation can proceed. If the family strongly objects, the procedure comes to a halt.
Approach 3: A third approach recognizes that after death a person ceases to exist, and therefore cannot hold interests. Yet, it distinguishes between the post-mortem (after-death) person—namely, the remaining body—and the ante-mortem (before-death) person—that is, the living person who no longer exists. Only an ante-mortem person can hold interests. This means that certain interests arise during a person’s lifetime and are realized upon his or her death. Among the philosophers who are associated with this approach is Joel Feinberg. He argued in The Rights of Animals and Unborn Generations that in order to have an interest, a person needs to have a stake in something, as well as a cognitive understanding. He explained that, “without awareness, expectation, belief, desire, aim, and purpose, a being can have no interests” (p. 177).
The third approach seems to be the most compelling one as it more accurately reflects the human condition. Most individuals, while still alive, have desires about their bodies, property, or reputation, and they wish to have their interests continue to be recognized after they die. Based on this approach, the ante-mortem person has an interest in what happens after his or her death rests on the impact of knowing, while alive, that his or her wishes will be respected. As a result, while alive, a person can experience harm or benefit from knowing that his or her interests will be fulfilled, or unfulfilled, after death. The knowledge that his or her interests will not be respected may cause a person to feel anxiety concerning what will happen to the body after death.
Interestingly, the third approach can be identified in several areas of law. For example, in both the United States and Israel, most burial requests and testamentary distributions are deemed valid, even if they contradict the preferences of living individuals and have a negative impact on them. In addition, laws in the United States, by and large, respect the wishes of those who do not wish to donate their bodily organs.
Following the above discussion, one may argue that the pleasure, while alive, of knowing that one’s interest in genetic continuity will be respected is one justification for a rule permitting posthumous reproduction in the absence of prior consent. The realization of a person’s interest in genetic continuity does not depend on whether the person had discussed the desire for genetic continuity with family members, nor does it rely on prior explicit consent to use his or her retrieved gametes. It is a basic need and desire to want other individuals to take on certain of our features, such as our values, genetic material, plans, and the like. Imposing many restrictions on the realization of such interest—or, in the worst-case scenario, prohibiting it—may be against the interests and the well-being of both the ante-mortem person and his or her loved ones.