Every Sperm is Sacred...

Kerry Howley | May 31, 2005

Unless, of course, the source is a homosexual American. Or a dead Australian:

A Victorian widow has been refused the right to impregnate herself with her dead husband's sperm because she did not have his written consent to do so.

The landmark decision, handed down by Victorian Supreme Court judge Kim Hargrave, was the first time an Australian judge has had to make a finding on the issue of whether a woman can use her dead partner's sperm to have his child.

Justice Hargrave also found that under the Human Tissue Act, the dead man's sperm should not have been removed in the first place.

Comments

|5.31.05 @ 5:22PM|#

Wow. just wow. They really know what's best for ya, don't they?


Next thing you know, you'll be required to sign a letter of intent to impregnate your partner, so that the state will know that you really wanted to, without relying on the hearsay testimony of the woman.

I'm just concerned that I may be subject to retroactive abortion because I'm pretty sure that my parents never wrote down their intentions regarding me.

|5.31.05 @ 5:29PM|#

Regarding the first: contrary to the article, the recommendations do advise against taking sperm from IV drug users as well. Then, you have to consider that homosexual men are about 200 times more likely than heterosexual males to contract HIV. I'm just curious why race wasn't included - blacks are about 20 times more likely than whites to have HIV and Hispanics are about 14 times more likely than whites to have HIV. Which way you slice those numbers though, having a 200 times greater chance of having HIV is a rather significant number to consider.

Then again, since the time of HIV screening of donated sperm, only 1 case has ever been actually reported of HIV being transmitted to a recipient, which makes the whole point moot in the sense that the screening procedure is pretty solid.

It is also just a recommendation - not an enforcement. I'll worry when all sperm donor clinics are run by the feds.

|5.31.05 @ 6:01PM|#

Vitrually all of the clinics will follow the FDA guidelines. And as a gay man who is HIV negative, it's the behavior, not the classification that predicts infection. Unsafe sex, drug use, etc. are better prediction than sexual orientation.

The guy donating sperm has to test negative AND come back 6 mo. after his 'deposit' and test negative *again*. That's why Volokh and others have pointed out as you do, that has be only 1 case of HIV transmission via sperm since the advent of testing procedures.

A policy in search of a problem but you can't go wrong in this enivronment by slamming us queers.

:(

|5.31.05 @ 6:14PM|#

Well Jake, it's not like stopping gay men from donating sperm is somehow going to stop future homosexuals from manifesting. After all, it's heterosexual sex that leads to homosexuals being born.

Stormy Dragon|5.31.05 @ 6:23PM|#

Suppose that the widow had wanted to ignore her dead husband's will; would the court worrying about the dead husband's consent in that case be silly too?

|5.31.05 @ 6:24PM|#

A Victorian widow has been refused the right to impregnate herself with her dead husband's sperm because she did not have his written consent to do so.

Hoo.

But I wonder if this is because of concerns that she might later be able to sue her husband's estate (or is that the same as suing herself? Maybe I should say, any heirs/beneficiaries other than herself) for child support.

|5.31.05 @ 8:01PM|#

I'll do my best to channel modern conservative loyalists:

This policy is necessary to ensure that homosexuals aren't able to pass on their immoral genes and produce a new generation of homosexuals.

And I want to emphasize that homosexuality is a freely made choice and not a genetic phenomenon.

Besides, we need to do everything possible to keep homosexuals at bay, since they sap our nation's ability to fight against Eurasia, against whom we have always been at war.

And a strong military is absolutely vital so that we and our eternal Eurasian allies can finally win our eternal war against Eastasia.

Finally, we must test donated sperm for genetic defects, because while four legs are good, two legs are clearly better.

|5.31.05 @ 8:22PM|#

Unfortunately we seem to have two threads here. While there was a link to the ban on gay men sperm donors, that may have produced some cross-pollination about the issues present in the subject case -- the woman in Australia who wasn't allowed to use her dead husband's sperm.

Note ye well: the dead husband (as far as the story tells us) was never in on the plan; it wasn't like he DONATED his sperm; rather, after he died in a car accident, HIS WIFE ASKED THE DOCTOR TO CUT HIM OPEN, "REMOVE" SOME SPERM FROM HIS CADAVER, AND FREEZE IT FOR HER.

That is very, very different than if he had voluntarily asked for it. IMO, his liberty interest in having his body disposed of in accordance with his wishes (in this case, unstated) trumps her interest in having the sperm.

They were married EIGHT YEARS. IF they had contemplated any such thing as post-mortem insemination (eeeeeww!) I think there was adequate time to either (a) have him go down to the local sperm-freezer place and make a deposit, or (b) write up a living will that provided for such removal.

In the absence of these things, I believe what we have here is a unilateral decision to take things from a corpse that were never agreed to by the deceased.

|5.31.05 @ 8:30PM|#

What if she needed his kidney or heart?

|5.31.05 @ 8:34PM|#

I thought I read somewhere that Australia is giving tax breaks to people who have kids, to increase the population rate. You'd think they'd give her a pass on this one.

Also, from "The Selfish Gene" perspective, who is more fertile than someone who can actually pass on his DNA after he's dead?

|5.31.05 @ 11:04PM|#

i'm pretty sure your liberty ends when you die. being dead and all. it's pretty weird, but she gets all his silverware, his clothes, so why not some of the joy juice?

|5.31.05 @ 11:09PM|#

The post-mortem sperm donation is an odd case, but only obviously wrongly decided, I think, if you believe a wife owns her husband's corpse outright, instead of being responsible for carryng out his wishes as to its disposal. I'm not sure I think the decision was right, but I don't think its clearly wrong.

|6.1.05 @ 12:11AM|#

i'm pretty sure your liberty ends when you die.

dhex, not to be too ... something, but consider this one example: we make out wills. So, if our liberty truly ended at death, then our wills would have no validity.

In the absence of express instructions, there are certain things you can do with a dead person's body or their estate, and certain things you can't. This is why, for example, we make out "organ donor" instructions on our driver's licenses. Some people DON'T want their dead bodies harvested... and so far, at least, the general consensus seems to be that: in life, we have the right to dictate the post-mortem handling of our (a) business/family affairs, and (b) our corpses, the way we believe they ought to be handled. And we have the opportunity to make those wishes known.

If we do not, then the law makes no presumptions as to affirmative actions we might have wanted taken, other than the rules governing intestate succession, where there is a presumption you'd want your estate to go to your family.

In this case, it was argued that just because they were married and he probably wanted his estate to go to his family, it does not follow from this that he'd also want us to presume he would have consented to having his sperm removed from his body and implanted into his wife.

For all we know, he may have been driving to his lawyer's office to file for a divorce and the thought of having a child with this woman sickened him. We don't know. He also might have been on his way to tell her he's ready to start a family that day. Again, we don't know what his intentions were.

I'll say this: if the latter were the case, then I truly feel sorry for this woman.... in much the same way i felt sorry for Terri Schivo's family. But you can't re-write the laws just to satisfy one party who feels aggrieved.

Anyway, given that we don't know his intentions... it seems quite a leap to say "oh its ok to just harvest his sperm and let his wife have his baby." If we allow that, we might allow all sorts of weird things to be done to people who die intestate.

I for one prefer the least possible presumption as to the deceased's intent, given that they had every chance in life to make that intent known.

|6.1.05 @ 6:52AM|#

it sure is getting increasingly difficult to live in this heterosexual dictatorship

|6.1.05 @ 8:44AM|#

kuros,

What a silly comment. Gays have it better in American than they ever have, regardless of the rhetoric. Don't get me wrong, there are plenty of people that want to continue oppressing gays, but I think you're being short-sighted. Real social change takes time, and gay liberation has been progressing at a fairly decent rate. Polls show that a majority of young conservatives are in favor of allowing gay marriage, whereas, a huge minority of middle-aged Democrats are against it. Go figure? In the not too distant future, say, when all those stupid fucked-up baby boomers kick the bucket, gays will be free at last.

Boomers are people who: say it's wrong to be racist, but are secretly racist; say it's wrong ot be sexist, but are secretly sexist; tell their kids they shouldn't have sex or do drugs, but... oh, well, I think you get the point.

Anyway, I support gay rights. I just think that you are ignorant of gay history. Here in San Francisco, we have a gay utopia, but just a few decades ago they were rounding up gays here and throwing them in jail.

I repeat: social change takes time.

R C Dean|6.1.05 @ 9:34AM|#

And the best way to create a backlash is to get all grabby about social change by forcing it with legal diktats. By trying to force gay marriage through court action, some of the gay activists are courting the same kind of resistance that the abortion folks got when they forced their issue through the courts.

I happen to think that both the abortion folks and the gay activists are probably heading in the right direction, although both groups are prone to overreaching. So I'd like to see them achieve (or hang onto) their goals, in a broad sense. I would very much like to avoid having gay marriage turn into another suppurating wound on the body politic, like abortion.

For you anti-Republican sorts, gay marriage could easily become, as abortion has, a pillar of social conservate activism, motiviating their fundraising and electoral victories. From a purely tactical view, wouldn't you prefer to avoid that?

|6.1.05 @ 11:57AM|#

The Real Bill and R C Dean,

These are the stupidest comments ever. So your advice is "Hey wait for it....eventually you'll get to be treated like an equal"

"Grabby about social change" ?? ITs about being treated the same as every other person out there. Grabby?? What a warped view of the world you have when want to not be discriminated against is considered "grabby"

How long should be people be forced to wait to be treated like equals? What's a good time frame for you? 20 years? 50 years?? 70 years?? What would YOU find acceptable??

Last time major social change (like uhmmm....ending slavery) came about I don't think it was because of a sit back and wait for it attitude.

But I guess the real question I have is...do you really believe that at some point, the right, is going to come around? They are STILL trying to overturn Roe, and wield the abortion club wherever they can. Why would equality for homosexuals be different? Gay marriage and Abortion both come down to the same principle, exciting the religious masses. So barring some kind of acceptance to homosexuality by most major religions, I doubt

The right ALREADY made gay issues a pillar of social conservative activism.

EVERYONE ELSE SHOULD BE LOUD AND PROUND ABOUT BEING ANTI- DISCRIMINATION

Following your advices would yield some kind of 3/5ths rule for homosexuals.

|6.1.05 @ 12:46PM|#

RC,

When you commented about court action, you forgot about school desegregation. When you discussed impatient grabbiness, you failed to mention the troublemakers who kept sitting at lunch counters, marching in the streets, keeping their seats on busses, and otherwise engendering backlashes.

Real Bill,

Are you actually holding it against Baby Boomers that they had to work to shed the prejudices that most of our generation never had to unlearn in the first place?

How about those stupid, undemocratic 76ers, who didn't even allow the direct election of one of the houses of Congress?

|6.1.05 @ 7:19PM|#

How about those stupid, undemocratic 76ers...

Yeah, no doubt about it -- that Iverson is SUCH a ball-hog.

|6.3.05 @ 2:14PM|#

Who had standing to undertake legal proceedings to stop her, I wonder, or does Australian law not work that way?