I Want To Put A Baby In You: Removing Eggs And Sperm After Death

Advances in assisted reproductive technology have now created a new set of ethical and legal issues when it comes to death.

last will and testamentExecuting a last will and testament lets us allocate our financial assets after we die. In some cases, people also designate who they want to be the guardian of their minor children. In still other cases, people address whether or not to donate their organs. It is less common, however, to consider the future of our reproductive material—eggs and sperm, or gametes—that remain in our bodies after our death.

Advances in assisted reproductive technology have now created a new set of ethical and legal issues when it comes to death. Not only can eggs and sperm be retrieved and cryopreserved while we are living, but they can also be retrieved—during a very narrow time frame—after death.

Court Approved Post-Mortem Egg Retrieval. In 2011, an Israeli court was asked to consider the case of a 17 year-old girl who was struck by a car crossing the street. Her parents requested legal permission to harvest their daughter’s eggs for conception purposes. The parents were able to establish that their daughter wanted to have children generally at some point in her life. On only that basis, the court granted the parents’ request! Surprisingly, the court did not require a specific showing that the daughter would have wanted to have children conceived after her death.

In contrast, in 2010 a case arose in the United States where an American woman was placed on life support after a sudden pulmonary embolism. Her husband requested that her eggs be retrieved as the couple had planned to have more children together. The hospital, in this case Massachusetts General Hospital, refused to perform the procedure.

Interestingly, the hospital’s decision did not seem chiefly concerned by the woman’s lack of consent, but instead by old-fashioned concerns about the use of an unrelated surrogate to gestate potential children. The justification for the denial also discussed the complicated nature of the retrieval, requiring 7 to 10 days for the ovarian stimulation protocol and considered “medically risk.” Frankly, this was an odd concern, given that the woman’s condition was considered terminal.

Post-Mortem Sperm Retrieval. Of course, it isn’t hard to find cases where the tables are turned. Occasionally, a woman requests that the sperm of her male partner—though not always her spouse—be retrieved post-mortem. While post-mortem sperm retrieval is not always granted, it is granted frequently. Sometimes, the justifications are fascinating.

In the Iowa case of In re Matter of Daniel Thomas Christy, Christy tragically suffered severe head trauma in a motorcycle accident. He later became brain dead. While Christy was in the hospital, his fiancé sat in the waiting room waiting for medical news. While there, she happened to see a baby, and started to think about the family that she and Christy planned to have in the future. Ultimately, she asked that Christy’s sperm be extracted for her use to start a family. Upon her prodding, Christy’s parents agreed, and requested that Christy’s sperm be retrieved. But the hospital refused to take action without a court order.

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Thereafter, the court issued an order that the sperm be retrieved! Interestingly, the court did not focus on concerns about Christy’s consent. Instead, it relied on the Uniform Anatomical Gift Act (UAGA), a uniform statute that normally governs organ donation. The judge determined that under UAGA, the parents could authorize the removal of their son’s sperm and gift it to the fiancé, just as if it were a kidney or liver.

Notably, the judge relied an on affidavit submitted by Professor Sheldon Kurtz, who is the principal author of UAGA. While the language of UAGA doesn’t strictly seem to cover post-mortem sperm retrieval, this was a little like having James Madison submit an affidavit about the true meaning of the First Amendment. Professor Kurtz argued that the retrieval was consistent with the intent and mandates of UAGA. And the court gave deference to Professor Kurtz in issuing its order.

The implications of the Christy case are concerning, to say the least. UAGA has a low standard with respect to when anatomical gifts can be made. In the same vein, consent under UAGA need not be obtained from the individual whose organs are at stake. For example, anatomical gifts can be made on behalf of a child, and they can be granted by any person authorized to dispose of the decedent’s body. This is consistent with the public policy encouraging organ donation. It is far from clear, however, that the same public policy should support post-death child conception. On the other hand, the good news is that Christy appears to be the only judicial ruling since 2007 to rely on UAGA.

Just as a last will and testament describes our wishes to conclude our affairs after death, it is important to consider the wishes—specifically, the consent of the deceased—in this context. While there is value for a loved one in retrieving the eggs or sperm of the deceased, there ought to be some level of specific proof that the deceased wished his or her gametes to be retrieved and used for another generation.

For that reason, it should at least be a best practice when preparing a will to consider the possibility of both (a) currently cryopreserved gametes, and (b) the gametes currently stored safely inside us. In that way, we can at least be sure about the true intentions of the deceased who pass away with wills.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.