John Stuart Mill's Argument

III. Argument Two conclusions emerge fairly decisively from the cursory analysis presented above: first, that the doctor should not even consider performing the sperm retrieval procedure before Mr. M is medically diagnosed as brain dead; and second, that even then he ought to consider it only if the mother were to provide specific proof not only of Mr. M's prior consent to undergo the procedure, but also of his intent to transfer the harvested sperm into his mother's possession for the purposes of selecting an inseminating a surrogate on his behalf in the event of his death.
Or, stated more succinctly: no, the doctor should not perform the posthumous sperm retrieval.
Simply looking from a deontology perspective and the excerpt stated above,
there is no reason to preform the procedure. Deontological ethics are concerned with what people do, not with the consequences of their actions. With that being said the mother’s wishes are technically taken out of the question and the doctor is required to continue with the morally right thing.
Furthermore, there are two basic factual uncertainties at work in this case. First, it is not clear whether or not Mr. M meets the clinical criteria for a diagnosis of brain death. Second, it is not clear that he has given consent to undergo the procedure. To some extent, absent additional information (such as the presence of a living will speaking to Mr. M's wishes in this regard), despite the importance attributed to it in the preceding ethical analysis, the diagnostic uncertainty does not actually impact this conclusion in any significant way: whether Mr. M is brain dead or comatose, the doctor could not perform the procedure and remain within the bounds of acceptable ethical behavior. The basic principle is that of autonomy; the specific requirement is informed consent. Informed consent is a huge part of modern medicine, as it allows patients to have the opportunity to participate in their health care decisions. A variety of elements come into play when dealing with informed consent. Although brain death does not necessarily mean biological death, it is clear that a patient, Mr. M, cannot give informed consent when he is unresponsive. Recognizing the current state of Mr. M in the situation, we must ask ourselves who is considered next of kin? And who will become Mr. M’s decision maker. In the United States, next of kin is determined by “the person's closest living blood relative or relatives.” With that definition in mind it would make sense that Mr. M’s mother would be the correct choice. It is important to note that the doctor must still act in the best interest of his patient, and without legal rights of power of attorney previously given to the mother, the physician does not have to obey her wishes. However, the mother's declaration that Mr. M promised to give her grandchildren simply cannot be reasonably construed as informed consent to undergo this specific procedure. Furthermore, the ethical implications extend far beyond the procedure itself; indeed, in some sense question of consent to undergo the procedure is actually the smallest of these issues.
Consider, for instance, a hypothetical scenario in which the issue of Mr. M's consent to undergo the sperm retrieval is avoided entirely—imagine, for the sake of argument, that Mr. M comes into the hospital with a perfectly preserved sperm sample in a container in his pocket. Could the doctor ethically transfer that sperm into the mother's possession? Would it be ethical for the mother to select a surrogate? Could a fertility specialist ethically perform an in vitro fertilization, even with the consent of the mother and the surrogate, even if Mr. M had consented to the procedure in general and abstract sense, if he had not also given his explicit consent for that specific use of his genetic material?
Answering "yes" to any of these questions would likely mean abrogating the principle of autonomy. In the increasingly unlikely event that all of these ethical hurdles were overcome, however, the mother would ultimately encounter one that is insurmountable: the ethical demand of the child that could result from insemination.
IV. Counter-Argument In the defense of the mother, a utilitarianism approach may act in her favor.
The convoluted writings of John Stuart Mill can be translated into simple terms as follows: No moral act or rule is intrinsically right or wrong. Rather, the rightness or wrongness of an act or rule is solely a matter of the overall nonmoral good (pleasure, happiness, health, knowledge, or satisfaction of individual desire) produced in the consequences of doing that act or following that rule. It might be possible to formulate an argument in favor of the operation under any circumstance (though perhaps not a very compelling one) provided that the argument was grounded in this extreme definition of utilitarianism. It would be justified by the fact that patient is most likely dead and although taking his sperm may be wrong it would yield an outcome with the “most good”, that being the mother’s happiness. To further examine this idea let us look at the obvious. Mr. M is almost certainly dead. Being dead, he has little use for his sperm; simply leaving it to degrade will not do anyone any good. Harvesting it, on the other hand, might be socially unsavory to a certain extent, but it seems as though it would make the mother happy, and potentially even allow her to realize what may be a lifelong dream. The argument presented above invokes the principle of autonomy—but what autonomy can reasonably be ascribed to a dead person? Is not a cadaver by definition an inanimate object, an entity even the level of autonomy of a cow? And speaking of cows, there happens to be an entire industry built up around the sale of bull semen—how often does one encounter a serious ethical objection to that grounded in the principle of autonomy? Then why should there be an objection carrying out the same procedure with a
cadaver? In addition, with regard to the small possibility that Mr. M is not clinically dead, a simple cost-benefit calculation can be performed. On one hand, if the procedure is performed immediately, there is a good chance that it will succeed. On the other hand, the likelihood of Mr. M ever again enjoying even the tiniest modicum of autonomy can be determined by multiplying the small probability that he is not brain dead with the miniscule chance that he not only regain consciousness at some point in the future, but that he recovers to the point of being able to make reproductive decisions. The resulting probability is likely to be nearly negligible. Thus, the procedure should be performed swiftly in order to maximize its chances of success. In some sense, this argument is perfectly sound; however, because it adopts such an extreme utilitarian view, it might be best addressed not on its own terms but rather by considering its implications. This same logic could be applied to justify performing virtually any act against a dead body, so long as it provides some nominal benefit to a living person. One would have to conclude that organ donation should be obligatory, for instance; furthermore, there would be little reason—if any—to respect a will. These positions are fundamentally at odds not only with medical ethics, but with social norms in most of the world's major cultures. In order to refute this argument on its own terms, one could reject the basic cost-benefit calculus upon which it relies. After all, weighing the desires of the mother against the (in this context non-existent) rights of the corpse ignores another party with a critical stake in the matter, introduced briefly above: the infant that the sperm might be used to produce. Demonstrating that this procedure would be in the best interest of the infant (as a utilitarian argument ought) would be difficult at best.
V. Conclusion
It is clear that Mr. M’s doctor has an ethical dilemma on his hands. He is stuck between the mother’s wishes of having grandchildren and his assumed wishes of the patient, but who is right? Let us look back at the facts. This ethical case study required engagement with several important uncertainties, especially regarding the condition of Mr. M and the trustworthiness of his mother's assertion that the doctor had implied consent to proceed with the operation. Ultimately, the analysis presented above adopts a deontological perspective grounded in the principles of autonomy and informed consent—one that that privileges the beliefs and desires of the patient regarding his genetic material, whether he is alive or not. Mr. M’s mother may be his close family, but the removal of his DNA is a clear violation of one of the key virtues in a professional-patient relationship, privacy and confidentiality. It might be possible to build a counterargument from a utilitarian perspective, but in this case the implications of such argument would likely be too extreme to be seriously entertained—and even if they were not, it is not obvious that such an argument could account for the best interest of any children that might result from the use of the sperm. It is to my beliefs with the known ethical facts, that the postmortem sperm retrieval procedure not be done. The simple desire of the mother to have grandchildren does not support the procedure. With that stated, the doctor can come to the conclusion that next of kin is not acting in the best interest of his patient. The doctor may decide to approach other members of the family and explain the situation to come to a solution. However, the mother does not have the right to harvest her son’s sperm as next of kin. All in all, the doctor should refuse to perform the procedure.