25 Jul 2023 To Exist or Not to Exist - Posthumous Sperm Extraction and Reproduction

Posthumous reproduction, the process in which assisted reproductive technology is used to create genetic offspring after the death of an intended parent, gives rise to social, ethical, and legal considerations for medical and legal practitioners as well as issues for the surviving intended parent or family, and resulting child(ren).

Although fairly uncommon, posthumous reproduction is nothing new. According to the New York Post, Dr. Cappy Rothman, a urologist, performed the first posthumous sperm retrieval at the request of a grieving father. The sperm was retrieved from a 30-year-old man who had been killed in a car accident in 1980. Though the doctor was able to extract sperm, it was never used to conceive a baby. It wasn’t until 1999 that posthumously cryopreserved sperm successfully resulted in a healthy baby born to Gaby Vernoff four years after the sudden death of her husband.

For posthumous sperm retrieval (PSR), time is a key factor. Sperm is viable 24 to 36 hours after death, according to Oxford Academic, so extraction is possible if done timely. Jess Mills, MD, urologist and director of the Men’s Clinic at UCLA, who has performed sperm retrievals on both living and deceased patients, explains to Health, “The sperm is only viable for a brief period of time, so most times the patient has to be already on his way to the hospital when he dies or placed on life support, in order for this to even be possible.” Posthumous egg retrieval, however, differs greatly for females, as a woman’s eggs need to be in the right stage of maturation to be viable in the event of an unexpected death. Therefore, the most common types of posthumous reproduction cases involve the use of sperm after a man’s death – usually in an attempt to achieve pregnancy in his surviving female partner.

Healthcare Providers Not Required to Offer Posthumous Reproduction

Currently, according to University of Wisconsin urologist Dr. Daniel Williams, there are no mandates for medical professionals in the United States regarding PSR, oftentimes leaving the decision whether to adhere to a request to collect genetic material to the medical staff on hand at the hospital. In order for the procedure to be performed, not only do there need to be qualified medical professionals on hand, but the facility must have the right equipment for the specialists to be able to extract the sperm. As noted by Dr. Williams (as quoted in The New York Post), “It’s a very emotional time for the family, and to find someone to help them with these types of time-sensitive decisions is often quite challenging. In addition, there are no federal laws that mandate what we . . . do in these types of situations.” Not all hospitals grant retrieval requests and those that do wrestle with ethical ambiguity.

In 2018, the American Society for Reproductive Medicine (ASRM) updated its guidelines stating that providers are not “ethically obligated to participate in posthumous assisted reproduction,” but should have written policies in place with guidelines regarding specific circumstances. When in doubt, most clinics will preserve gametes; however, before posthumous reproduction can occur, the surviving intended parent or family member must prove the deceased intended to allow the use of his/her genetic material for conceiving a child.

Laws Governing Posthumous Reproduction Vary State to State

Posthumous reproduction raises legal and ethical issues, including the ownership of gametes, parentage, and the inheritance rights of posthumously conceived children.

Laws in the United States regarding posthumous reproduction vary from state to state. While many states have passed laws modeled on the Uniform Parentage Act, others have passed laws that diverge from the model. For instance, according to the American Bar Association (ABA), Massachusetts requires a surviving parent to show a genetic relationship, prove the deceased person affirmatively consented to reproduction and to support any resulting child, and that the filing complies with any applicable rules for property distribution after death in order for a posthumously conceived child to be eligible for inheritance rights. This differs from the New York mandate, which states that the deceased must have stated in a signed writing that he/she consented that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child, and that the child must be in utero no later than 24 months after the death of the deceased intended parent to be eligible for inheritance rights. Though criteria for inheritance rights differ from state to state, the ABA states that they all have one commonality: “The surviving parent must provide proof of the deceased’s intent for the posthumous child to inherit.” There is also the question of whether the posthumously conceived child is eligible for Social Security survivorship benefits, made ambiguous by the patchwork of state and federal mandates.

Where proving intent is concerned, it may be harder in certain circumstances to prove. The partner of the deceased may or may not have had time to obtain prior written consent to retrieve gametes for procreation. For example, those battling cancer might have time to document their wishes through contracts and/or testamentary documents, and therefore be allowed to transmit survivorship benefits for posthumously conceived children. However, the same may not be true for someone who passed away unexpectedly in a car accident or other sudden tragedy.  Finally, it is important to know that, depending on the state, proof of intent alone may not be enough to establish survivorship benefits.

Psychological and Social Issues

In all of the above scenarios, for anyone seriously considering engaging in posthumous reproduction or wanting to leave the door open to it, planning ahead with proper legal and psychological counsel can help tremendously.  As with any assisted reproduction, counseling, and evaluations are important first steps in the process. Posthumous reproduction is no different. The enormity of loss can impact the decision-making process, which is why the ASRM states that it is important to allow adequate time for grieving and counseling before undertaking any posthumous reproduction.

There are also social constructions to consider for the posthumously conceived child. How will this affect the child? Should he/she be told the details of conception? A woman, who wishes to remain anonymous, told the New York Post that she waited 10 years to tell her son his origin story. The couple had been trying to become pregnant for two and a half years before her husband suddenly passed away from a heart condition. She said in regard to telling her son, “He was very excited and touched. It meant a lot to him that his father and I loved each other so much that I went to such great lengths to have him.” Although not everyone will or should proceed with posthumous reproduction, for those who do, thinking very carefully about the psychological and social issues that may arise is best.

Attitudes Toward Posthumous Reproduction

At an anniversary memorial service in January of this year, Dominique Luzuriaga Rivera, the widow of a slain New York City police officer, announced that she was pregnant using sperm retrieved from her husband’s body shortly after his death in January of 2022, according to the New York Post. Upon hearing the news, the crowd of 2,500 erupting in cheers and a standing ovation at St. Patrick’s Cathedral perhaps might suggest that many people may accept posthumous reproduction.

In fact, the Journal of Law and the Biosciences published the results of a 2014 study by Jason Hans on attitudes toward posthumous reproduction in the United States, revealing that 70 percent of males and 58 percent of females who were of reproductive age (18-44 years) would want their partner to be able to reproduce using their gametes in case of an unexpected death. This may imply that the overall public has a positive attitude toward posthumous reproduction in the event of untimely deaths.

As technology advances and awareness increases, the use of posthumous reproduction is likely to become increasingly common, raising a wide range of ethical and legal quandaries for which there are few consistent guidelines and regulations. Should decisions be made solely on the principles of bodily autonomy, or should more consideration be taken into account for the deceased’s desire for procreation, the partner’s interest in procreating, and the resulting children? There is no one-size-fits-all answer. Each case is deeply personal and complex. Still, for many, posthumous reproduction offers the promise of new life and continuing the family line in the face of a tragic situation. As Dr. Mills goes on to say in Health, through this technology, the survivors are “able to establish a family, and even though the father won’t be around physically, that doesn’t seem like any worse reason to bring life into this world. To me, it gives a tragic story a bit of an upbeat ending, for [ . . .] everyone involved.”

If you have questions about posthumous reproduction, the key is advance planning, and we encourage you to contact us with any questions on how to legally secure your family’s future.