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.

Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”


Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

Los Angeles

5757 Wilshire Blvd., Suite 645

Los Angeles, CA 90036

Phone:  +1 323 331 9343

Email:  info@iflg.net

Website:  www.iflg.net

New York

501 Fifth Avenue, Suite 1900

New York, NY 10017

Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net

Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Alexander Espinoza
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Cara Stecker
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Katie Deaquino
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Elsa Jimenez
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.