Leading Article: This woman is right to want life after death

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The Independent Online
Ms DB should be allowed to bear her husband's child. She has watched her husband die from sudden illness, and now she is fighting in the courts to be impregnated with his sperm so that she can have the baby she says they both wanted. The idea that she should be stopped because he was incapable of signing the right piece of paper seems, on the face of it, inhumane.

Empathising with her is easy. It happens every day; people are killed or struck dead by sudden illness, leaving loved ones behind. They always wanted to have children together, talked of it; and now the partner who is left behind feels more than ever the need to build something on the foundations of that lost love. A child is the ultimate testimony - perhaps the one intimation of immortality that answers the brutal fact of death. Generations of poets have described this. Millions of people are the children of men who died before their birth. But only now has technology made it possible for a woman to conceive, rather than to carry, a child after her husband dies. And the real question is whether or not this raises new ethical dilemmas.

In any advanced society, ethical problems are codified and paper-wrapped in legislation. As far as the Human Fertilisation and Embryology Authority is concerned, the law cannot allow this woman to have the baby she wants. The law says that a man must give his written consent for his sperm to be used - whether the partner is to be impregnated before or after his death. And consent must be informed by understanding, too. Whether husband and wife, or strangers, everyone involved needs to undergo appropriate counselling before something so emotive as the creation of human life can go ahead.

Nor is it only fertilisation in which consent must play such a central role. If Ms DB had wanted to donate her husband's heart or kidneys for transplant surgery, she could not have done so without his prior agreement. When death comes suddenly, no matter how much relatives may speculate about the probable desires of the deceased while he was alive, it is too late. The dead can't sign.

This framing of the law suggests that there is an ethical question here, buried in the seemingly cold, bureaucratic "no". And there is. In theory, the impregnation of women with dead men's sperm could lead to unpleasant and morally dangerous outcomes. Imagine the clamour of Beatles fans desperate to be impregnated with the sperm of the late John Lennon. Ask what happens if an ex-wife or ex-lover demands the sperm of a dead man who never wanted her children. How would the grown child feel? And if it can happen one way, what about the other way? Would we really feel comfortable with men requesting the eggs from the ovaries of dead wives and partners, to be impregnated and implanted in the womb of a surrogate?

As we have been learning again and again this year, with fertility treatments, and frozen embryos, the ethical questions on the frontier of new medical technology are not easy. Most of us struggle and fail to find simple principles to guide us through dilemmas that could not have existed 30 years ago. In the absence of easy answers, we muddle on from case to case, making our minds up on the specific details as they arise.

But this is not a bad thing. Muddling on means, in practice, applying humanity, individual moral sensibility and common sense to individual cases. It means accepting a certain leeway for individuals to struggle with their own choices. It means acknowledging that one person's choice will not necessarily meet with general approval, but may yet turn out to be the right one. And all that means leaving the law loose enough for those choices to be made wherever living people are not hurt by them.

The Human Fertilisation and Embryology Act isn't stupid or heartless. Underpinning it are sensible thoughts about human life - it is not the best possible start in life for a child to have one parent dead, and the other recently bereaved. We would hope that a surviving would-be parent could be well counselled, and advised to wait until the initial shock of the death had passed. But the law does appear to be too tight, a little too logically drafted for human complexities. Ms DB is still hoping that it can indeed be reinterpreted more broadly, to allow her to bear the child she wants. The courts could still concede that where the donor is one of a close couple, where relatives and friends agree that it was what he or she wanted, written consent should not be needed, even if the donor is dead.

But whatever her defence, DB should be allowed to make the decision to have the child. Under the existing, unsustainable arrangements, the law is caught in the absurd position of trying to defend the interests of the dead by stopping something that, in this case, everyone agrees the dead would have wanted. It is preventing those who cannot answer for themselves from becoming parents against their will. Yet by doing so, the law will doubtless be denying some of the dead what would have been their dearest living wish. The law is not an ass. But it is an abstract code, a crude attempt to map the complexity of life with rules and absolutes. And where, as here, we are all feeling our way blindly forward, the law should stand a little back. It may well turn out that Ms DB, whoever she is, is wiser than the Human Fertilisation and Embryology Authority.