The dead, the living and the yet-to-be-born

`Are we seeing the same old story in which men are not expected to look after contraception, while women are?'

IN YET another pair of challenging ethical dilemmas, two potential grannies, both in their sixties, have had their family planning hopes dashed. One mother wishes for her Down's syndrome son to be sterilised while the courts will not allow it. The other wishes for the Human Fertilisation and Embryology Authority to release her son's sperm to her so that she can hire a surrogate and have a grandchild, even though her son has been dead for just over a year now.

The mother of the young man with Down's syndrome, who cannot be named for legal reasons, wishes for her 28-year-old son to have a vasectomy. This is the first time that such an application has been made on behalf of a man, and yesterday the mother lost her appeal against an earlier negative decision.

However, the mother's request has not been denied on principle. "An application on behalf of a man for sterilisation is not the equivalent of an application in respect of a woman. It is not a matter of equality of the sexes but a balancing exercise on a case-by-case basis. There are obvious biological differences, and sexual intercourse for a woman carries the risk of pregnancy which patently it does not for a man."

Family division president, Dame Elizabeth Butler-Sloss, suggested that the time might come to reapply for a sterilisation order when in due course the young man went into local authority care and formed a relationship. For the time being, though, since the mother was continuing to look after her son, it was clear that he would be closely supervised.

His mother is certainly motivated by concern for her son. She believes that the operation will give him the opportunity to start relationships without becoming responsible for a pregnancy. While his intelligence is on the borderline between significant and severe impairment, and he has no understanding of the link between sexual intercourse and pregnancy, he is sexually aware and has been involved in sexual incidents with women.

In her judgement, Dame Elizabeth said that the man was "very vulnerable because he is friendly and easily led", and "enjoys the company of other people and likes to be close to women and to kiss them. The mother is on her guard against inappropriate behaviour." The mother's worries are centred on the fact that this level of supervision will not continue. She is in poor health, and will soon undergo operations on her back and hip. When she can no longer look after her son, he will go into local authority care. She fears that he may then form a relationship that results in pregnancy, and worries about the implications for the mother and the child.

No such qualms for Natasha Smith and her husband Barry, who are preparing for a legal battle to obtain the frozen sperm of their dead son Lance - who died in a crash at the age of 36 - and have a grandchild via a surrogate mother. The sample was taken the day after his death, when a letter was produced requesting that this should be done in the event of his dying suddenly. The letter specified that his long-term girlfriend should conceive the child. She has discussed the matter with her dead lover's parents, but does not want to proceed with a pregnancy. The Priory Hospital in Birmingham will not release the sperm to anyone except her, citing the Government's guidelines over the moral and ethical issues involved.

What an odd and touching pair of cases these are. One mother, with her living, active son, is willing to fight in the courts for the right to control her child's fertility and deny herself a grandchild. The other, with the memory of her dead boy to sustain her, is willing to fight as well, to have a grandchild who will have no father, and a biological mother who will be nothing more than a hired womb.

Are there any rights and wrongs in these cases at all? Neither of these putative fathers is in a position to decide whether or not they will have children. Neither of these putative fathers is in a position to be a father in any meaningful sense - although less severely afflicted Down's sufferers have become parents, and no court judgement should ever be considered as an infringement of their right to do so. In both cases there is no legal precedent, while at the same time both are involved with the rights of grandparents, rights that have no status in law under these circumstances.

One case centres on controlling the past - trying to meddle with the harsh fact that a much-loved son died childless. The other centres on controlling the future - attempting to ensure that a much-loved son dies childless. Not for the first time, I find myself wondering whether the availability of such choices has made life easier and better or harder and more difficult.

The case of the Smiths is certainly the easier one to have a strong opinion on. Despite the several children who have been born to dead fathers, it seems outrageous even to consider pandering to this couple's inability to accept the reality of their son's death. It is difficult to believe that the Smith's battle will end in anything but utter defeat.

The case of the Down's man is so much harder though, partly because there are so many other medical abuses of Down's people already. Children are refused organ transplants because they have Down's, while mothers-to-be are pressed to undergo invasive operations which assess the likelihood of having a Down's baby, and offered every support if they decide they do not want to take this terrible risk. All this righteous rejection of a viable kind of human existence, even though we recognise that Down's people, above all others perhaps, are likely to be loving, affectionate and happy, benign and enriching qualities that so often seem in short supply.

Except that Down's syndrome women have been rendered infertile, and while Dame Elizabeth reckons that this is not an equality issue, I wonder if this kind of thinking is governed by the weird logic that has contributed so much to the mess we have made of parental responsibility.

Those who have not had close contact with the disabled do not understand the intensity of their sexual lives. As a very young woman I worked briefly in a home for severely mentally and physically disabled children, and the sexual intensity around the place was the greatest of shocks to me. Hourly boys would request "proper" kisses or put their hands between my legs or on my breasts. This pleasure seemed to be the only one that many of the adolescent boys had. Whatever the impairmernt of their other faculties, their sexual imperative was strong and almost entirely unmediated by other considerations.

Nevertheless, in the cases so far in which Down's people have been sterilised, it is the women who have gone under the knife. Their reproductive organs can only ever result in one person's pregnancy, while those of sexually active Down's men can go on impregnating women again and again. Further, while women now can be subjected to a whole range of other contraceptive measures, those for men remain limited. Are we seeing, in this extreme situation, the same old story in which men are not expected to look after contraception, while women are? Except that here, these skewed values are imposed on others without their knowledge or understanding.

That much Lance Smith and the Down's syndrome man have in common. These wrangles over their reproduction are being conducted without their involvement at all. It seems to me that if everybody can agree on one thing, it is that there are too many completely uninvolved fathers in the world already.

Surely all of our difficult decisions must be taken with this in mind. Neither of these men is capable of making a conscious decision to commit to any particular pregnancy and to offer any help in the upbringing of the resulting child. So perhaps a useful rule of thumb might be that in such cases, the law should always protect the right of a not-yet-conceived child to have a living, committed and active father. We have already given far too much licence for fathers to be none of these things.