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Ethical and Legal Aspects of Sperm Retrieval after Death or Persistent Vegetative State

Published online by Cambridge University Press:  01 January 2021

Carson Strong
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Several methods have been reported for extracting sperm from a man after he dies or enters a persistent vegetative state (PVS). Although such sperm retrieval could be performed for nonprocreative purposes, such as research, in this paper I focus on cases involving procreative intent. Since 1980, more than ninety cases have occurred in which family members requested sperm retrieval from patients who died or were irreversibly unconscious, with the intent that a wife, girlfriend, or other woman would be inseminated. Recently, the first report of pregnancy and birth following postmortem sperm retrieval appeared in the media.

In these cases, death or PVS typically is caused by anoxic injuries, trauma, or rapidly progressing infections.

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Article
Information
Journal of Law, Medicine & Ethics , Volume 27 , Issue 4 , Winter 1999 , pp. 347 - 358
Copyright
Copyright © American Society of Law, Medicine and Ethics 1999

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References

One method involves surgically exposing the vas deferens and irrigating them to obtain sperm. See Rothman, C.M., “A Method for Obtaining Viable Sperm in the Postmortem State,” Fertility and Sterility, 34 (1980): 512. Another approach involves rectal insertion of a probe to induce electroejaculation. See Ohl, D.A., “Electroejaculation,” Urology Clinics of North America, 20 (1993): 181–88. For further discussion of these and other techniques, see, for example, Chung, P.H., “Assisted Fertility Using Electroejaculation in Men with Spinal Cord Injury—A Review of Literature,” Fertility and Sterility, 64 (1995): 1–9; and Kerr, S.M., “Postmortem Sperm Procurement,” Journal of Urology, 157 (1997): 2154–58.Google Scholar
In the future, postmortem ovum retrieval may be possible, perhaps by removing ovaries and maturing the primary oocytes. I focus on sperm retrieval because, currently, it is technologically feasible and thus there is greater urgency to address it.Google Scholar
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Horner, J.S. Letter, , “Reply from Chairman of BMA's Medical Ethics Committee,” British Medical Journal, 313 (1996): 1477, at 1477. A version of this view is advocated by Sandra M. Webb, who states, “surely the collection and cryopreservation of sperm from these men should not be carried out unless they had given their prior consent for this, or appointed a proxy.” Webb, S.M., “Raising Sperm from the Dead,” Journal of Andrology, 17 (1996): 325–26, at 325.CrossRefGoogle Scholar
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I am not claiming that, absent explicit prior consent, the inferred approval of the patient is necessary for the ethical justifiability of organ procurement. Rather, I am pointing out that if there is reasonably inferred approval, then organ procurement is respectful of the autonomy of the previously existing person.Google Scholar
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In the text, I do not address the special reasons why freedom not to procreate is important to women, because my focus is the freedom of men not to have their sperm retrieved. However, it should be noted that freedom not to procreate is particularly significant for women, based on the importance of the goal of gaining social and economic equality. Achievement of this goal requires, among other things, increased integration of women into positions of influence and authority. Because gestation and child rearing require much time and energy, the more heavily one is occupied with these activities, the more difficult it is to pursue education and careers leading to positions of authority. Society generally has put little pressure on men to assume their fair share of the task of child rearing. Given these considerations, procreative freedom for women is essential to the goal of gaining equality. A related but distinct consideration is that freedom not to procreate is important for women because bodily self-determination is implicated, and women bear the bodily burdens of gestation. See id.Google Scholar
This appears to have been a feature of the French case involving Alain and Corinne Parpalaix. See Hecht v. Superior Court, 16 Cal. App. 4th 836, 855–57 (1993). See also Shapiro, E.D. and Sonnenblick, B., “The Widow and the Sperm: The Law of Post-Mortem Insemination,” Journal of Law and Health, 1 (1986–87): 229–48, at 247.Google Scholar
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I am indebted to William H. Kutteh, M.D., for pointing out this.Google Scholar
It is conceivable that an inferred approval of the choice of recipient could be based on the man's prior selection of a person to make that choice for him. For example, a single man might designate a family member to make decisions for him concerning postmortem sperm retrieval and insemination, including decisions about selection of a procreative partner.Google Scholar
See Allen, J.E., “Woman Pregnant By Sperm From Corpse,” AP Online, July 16, 1998.Google Scholar
This type of scenario could take several forms: perhaps none of the family members can offer evidence concerning the man's wishes; or the wife and other family members may offer conflicting evidence. For an example of the latter type, see Andrews, supra note 8, at 64.Google Scholar
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It should be noted that there are legal issues for which it would make a difference whether the man is brain dead or in PVS. In some jurisdictions, determinations of paternity and inheritance could differ, depending on whether conception occurs before or after the death of the genetic father. However, the main issues discussed in this section, concerning the ethical justifiability of sperm retrieval and insemination, do not seem to hinge on how these legal issues are resolved. For example, the ethics of carrying out a retrieval when it is reasonable to infer the man's consent and the wife has requested it would not typically depend significantly on how the question of legal paternity would be resolved.Google Scholar
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A somewhat different statement was put forward by the American Society for Reproductive Medicine. See Ethics Committee, American Society for Reproductive Medicine, “Ethical Considerations of Assisted Reproductive Technologies,” Fertility and Sterility, 67, Supp. 1 (1997): 8S–9S. Specifically, it states, “A spouse's request that sperm or ova be obtained terminally or soon after death without the prior consent or known wishes of the deceased spouse need not be honored.” Id. at 9S (emphasis added). I am arguing for the stronger policy that requests should not be honored absent explicit prior or reasonably inferred consent.Google Scholar
One version of this problem might involve a wealthy patient's girlfriend who misrepresents the patient's wishes in an attempt to give birth to a child who would receive an inheritance. However, current laws concerning paternity and inheritance pose substantial obstacles for the girlfriend. If the patient is dead at the time of conception, then she faces the difficulty that many U.S. states have paternity laws that do not address posthumous conception. A few states have adopted the Uniform Parentage Act, which holds that the deceased man would be presumed to be the father of the child provided the couple had been married and the birth occurred within 300 days of the man's death. Thus, in no state does current law provide a basis for presuming that the deceased would be the legal father of a girlfriend's child. See, for example, Gibbons, J.A., “Who's Your Daddy? A Constitutional Analysis of Post-Mortem Insemination,” Journal of Contemporary Health Law and Policy, 14 (1997): 187–210. A child conceived after the father's death could not inherit under current law, unless the decedent explicitly provided for such inheritance in a will. See Gilbert, S., “Fatherhood from the Grave: An Analysis of Postmortem Insemination,” Hofstra Law Review, 22 (1993): 521–65. A posthumously conceived child not provided for in a will could file suit against the father's estate, but it is unclear how the courts would handle such cases. If the patient is in a persistent vegetative state (and hence alive) at the time of conception, and the girlfriend is unmarried (not a common law wife), then similar legal conclusions would hold. Current law would not presume that the patient is the legal father, and the child would not inherit unless provided for in a will or a claim in court were successful.Google Scholar
It might be asked whether a signed card would constitute explicit prior consent. In reply, consent ordinarily is understood as involving several elements that would not be present in simply signing a card. First, consent is regarded as an agreement given to one or more specific identifiable parties, usually an identifiable physician. Thus, typically there is a meeting of the minds, which would not be present in simply signing a card. Second, for consent to be valid, the consenter must be adequately informed by the receiver of consent concerning the nature of the proposed procedure, its chances of success, its costs, and other information relevant to informed consent. Moreover, in cases involving other types of prior signed statements, courts have refrained from regarding the statements as constituting consent. In particular, living wills have not been regarded as consent documents, but as evidence used in making substituted judgments about withholding life-preserving treatment from now-incompetent patients. See 49 A.L.R. 4th 812, 815 (1986).Google Scholar
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See 46 A.L.R. 5th 793, 803–04 (1997).Google Scholar
See id. at 804–05. The best interest standard also applies when the next of kin consents to a medical procedure on an incompetent for the benefit of a third party. See 4 A.L.R. 5th 1000 (1992).Google Scholar