Even Your Sperm Needs A Will
Don't forget to address your sperm or eggs in your will.
Tragedy and Heartbreak in the Rockies. This week, after her boyfriend’s sudden and tragic death, Kate Creswell of Colorado fought for her boyfriend’s sperm to be extracted to one day fulfill their dreams of having a child together. The couple had been together for seven years, and had planned to marry and have children in the near future. Unfortunately, during a weekend hike in the mountains, Tom Alexander became ill and was hospitalized with heart complications. A pacemaker was installed initially, and things were looking up. But at 4 a.m. on Sunday, he suddenly died in the hospital.
Creswell urgently requested that her boyfriend’s sperm be retrieved as soon as possible. Unfortunately, even with full support from Alexander’s family, Creswell hit roadblock after roadblock. Chief among them was the difficulty of finding a urologist willing to perform the extraction. They would also need a facility that would agree to cryopreserve and store the sperm. Alexander also didn’t leave a will or any medical directive — which meant he never expressly consented to having sperm extracted from his corpse, much less allowing his girlfriend to later conceive by using that sperm.
A Race Against Time. Creswell was up against the clock, and had to solve all of these independent problems in limited time. In order for sperm to be viable, it must be retrieved within 24-36 hours of death (some doctors say as long as 48 hours, but regardless, she had only a matter of hours). And as the clock counted down to the deadline with little hope in sight, Creswell gave up the fight.
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Crestwell’s attorney, Judith Hoechst, noted that “a written directive would have saved my client from the maze of roadblocks set in her path. But sperm retrieval in this heartbreaking case would not have violated state law, and my client was not afforded the individual respect and consideration she clearly deserved.” Creswell says she now “hopes to work with hospitals to establish protocols, and to encourage other people to write wills and medical directives.”
Consent? The core issue stopping medical professionals from assisting Creswell was one of consent. Although Alexander may have clearly indicated verbally his wish to Creswell to marry her and have children with her, he never reduced his wishes to a legal writing, and it is unclear if his general wish to have children with Creswell included the very different wish that such children be conceived posthumously.
Sadly, Creswell has not been the first in this situation. But for those left behind, the result is generally the same. Some hospitals have protocols that require specific consent to permit the retrieval, and those that do not are often hesitant to permit the retrieval without written consent left by the deceased or a court order.
Is Sperm Like a Kidney? Some believe that, just like with organ donation, next of kin should be able to authorize a sperm or egg retrieval. In a situation like Creswell’s, previously discussed here, one woman and the family of her suddenly deceased fiancé successfully convinced a judge in Iowa that sperm was just like an organ donation. With the added credence of a supporting affidavit from one of the principle drafters of Uniform Anatomical Gift Act (UAGA – the law that governs organ donation) stating that it was meant to cover sperm donation, as well as donation of more commonly thought of donated tissue and organs. The court ruled in favor of the retrieval. However that case occurred 10 years ago, and we have not seen other judges agreeing that post-death sperm retrieval is covered by UAGA.
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The Lesson. Everyone Needs A Will. Wills aren’t only for rich people. Sure, you need a will if you want to leave your millions to Fifi the dog to live in comfort and luxury. But even if you just wanted the exact same thing as whatever your state’s intestacy law provides, you should at least name a personal representative. That’s the executor in many states. He or she is the poor soul who has to deal with the business of your stuff after your death. And then if you have minor kids, naming a guardian is essential. Whether you wish to be an organ donor or not should be in there. And now, add to the list of key decisions to make, what you want done with your sperm or eggs (still contained in your body) after your death.
Your Homework. (1) Do your will. Don’t forget to address your sperm or eggs in your will. (2) If you are an attorney practicing estate planning, ask your clients about their sperm and eggs (why not add a little extra awkwardness to the already awkward conversation of death). (3) For fun bedtime reading, take a look at this law review article about post-mortem gamete retrieval and posthumous conception.
It’s too late for Creswell. But it’s not too late for other couples to have “the talk” and make informed decisions about whether their wish to have children together includes the idea of conceiving those children after one of them has passed.
Ellen 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, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.
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