The Ethics Of Posthumous Sperm Retrieval

A recent court case in France kicks up ethical concerns surrounding the controversial practice of posthumous reproduction

Human spermatozoa. — Getty Images
Jun 04, 2016 at 4:02 PM ET

After an initial refusal, a French court recently granted Mariana Gomez-Turri’s request to use her dead husband’s sperm, which he’d frozen while the two lived in Paris, just before he started chemotherapy.

Gomez-Turri’s husband died last year at age 30 from cancer, according to reports. At first, Turri’s request to have the sperm sent to Spain, where she now lives, was denied because of French law regarding artificial insemination, which only permits the procedure for sterile couples. But on appeal to the Council of State, the judge found that Turri’s case was special because her husband’s illness had “prevented them carrying out their plans to have a child.” The request was granted because their plan for children was clear.

In France in 1984, a cancer patient’s widow, 23-year-old Corinne Parpalaix, sued successfully to be inseminated with her husband’s sperm after his death from cancer two days after they married, arguing it was his wish. Her lawyer argued, “A deceased man has the right to breathe life into the womb of his wife and prove that love is stronger than death.”

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But while academics argue that men may store their sperm before undertaking high-risk activities (like going to war), or before undergoing chemo therapy, as was the case with Gomez-Turri’s husband, ethical quandaries surrounding posthumous sperm retrieval abound despite established legal frameworks. In a country like the United States, for example, there’s not only no specific legislation about retrieving a dead man’s sperm, cases rarely involve explicit consent for sperm retrieval beforehand.

In 1997, Deborah Hecht won custody of 12 vials of her deceased boyfriend Bill Kane’s sperm. He’d committed suicide, but explicitly left the sperm to Hecht in his will. She spent six years fighting his adult children for it in court. An appellate court ruled in her favor: “Seldom has this court reviewed a probate case where the decedent evidenced his or her intent so clearly,” the opinion read.

In these situations, physicians who are asked to perform sperm retrieval, sperm storage, and artificial insemination face difficult ethical issues: Is postmortem reproduction ethically justifiable? Should there be limits on the length of storage? Should there be restrictions on who can be inseminated? And furthermore, what are the potential consequences?

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When Robert Capato developed cancer in 1999, he started donating sperm to a sperm bank. But upon getting better, he and wife Karen Kuttner conceived a son naturally. But his cancer returned and he died in 2002, according to CNN. Kapato decided to use his previously donated sperm for in vitro, and had twins 18 months later.

Kapato applied for survivor benefits from Social Security and was denied. An appeals court initially supported Kapato’s claim and won her benefits, but the agency appealed to the Supreme Court, where Ruth Bader Ginsburg reversed that decision, arguing that the survivor benefits were designed to support “those the deceased wage earner actually supported in his or her lifetime.”

And the other Supreme Court Justices made clear this wasn’t about artificial insemination, but rather, “whether children who are born after the father’s death get benefits.” But Capato’s lawyer asked a compelling question: Could the lawmakers have anticipated this technology back in 1939 when they wrote the law that way?

And when posthumous sperm retrieval is factored in, things get even murkier. In the United States, there are no formal laws preventing the practice. The medical technology for posthumous or postmortem sperm retrieval, or PMSR, which involves surgically removing, irrigating, or aspirating sperm from the recently deceased, vegetative, or terminally ill, has been around for decades.

The first case, in 1980, involved taking the sperm from a 30-year-old brain dead man at his family’s request after a motorcycle accident left him comatose. By 1997, one survey found that some 14 clinics across 11 states had performed the practice at the requests of parents, girlfriends, and wives of deceased men ranging from age 15 to 60, usually accidentally, according to the New York Times. Bioethicist Timothy Murphy even coined a term for the men who produce beyond death: “sperminators.”

It’s difficult to gauge how often it occurs now—bioethics research from 2013 calls the practice “still exceedingly uncommon,” and a report from 2010, in which a woman requested her 21-year-old son’s sperm after he was murdered in the hopes of finding a surrogate to give her a grandchild, says there about 1,000 requests for the procedure a year.

Writing at Live Science in 2013, Bahar Gholipour laid out additional ethical concerns given the wide variety of legal positions on the issue across the world. Posthumous sperm retrieval is illegal in Sweden, France, Germany, and Canada, and a handful of Australian states have also instituted a full ban. Where the procedure is legal, it’s typically contingent upon the man’s explicit consent, such as in Israel or the United Kingdom. But not always. While some medical institutions follow a strict consent policy from donor to family, others honor implied consent, Gholipour writes.

In some cases, it’s not that consent is given, it’s that refusal isn’t. In 2007, a 23-year-old organ donor named Daniel Christy had a motorcycle accident in Iowa and suffered severe head trauma. His fiancée, Amy Kruse, asked the university hospital where he was being cared for about sperm retrieval, saying they’d planned to have children. His parents supported the decision. The ethics committee was stumped, and the university refused the sperm without a court order. The parents sought one under the 2006 Uniform Anatomical Gift Act, and a judge ruled in their favor, arguing that “an anatomical gift, including the gift of sperm, can be made by the donor, or, if the donor did not refuse to make the gift, by the donor’s parents following the donor’s death.”

In other words, as an organ donor, his parents could, on his behalf, donate the gift of his sperm to his fiancée. (Had they been married, as his medical surrogate, Kruse could’ve donated them to herself.)

In law professor Lori Andrews’ piece exploring the issue at the New York Times in 1998, she took the strong stance that “collecting sperm from comatose or dead men is perilously close to rape.” She asks why a man’s parents have any right over his reproductive capacity, or conversely, what’s to stop a man from harvesting his comatose wife’s eggs, or arguing a constitutional right to “keep her alive on a respirator for nine months until the child could be delivered by Caesarean section?” Why not make the issue of sperm donation as simple as organ donation, filling out a card for yes? she asks.

But until then, in lieu of formal policy, guidelines like those issued by Cornell and a handful of other medical institutions are leading the charge in how to approach the practice ethically. They say consent must be given only by the deceased’s wife, in cases of sudden death unrelated to communicable disease, for which it should be screened. The sperm must be retrieved with in 24 hours and locally cryopreserved. Furthermore, the wife must wait a year to inseminate.

But such guidelines still don’t address the child’s welfare, which means for now, the issue will go on being debated.