Deceased Son’s Genetic Material Used To Create Grandchild -- Is That Even Legal?

In the US, like many countries, there's no clear law when it comes to posthumous conception or postmortem gamete retrieval.

Earlier this month, a California fertility doctor proudly described how he was honored to assist a British couple in the conception of their grandchild. How did that happen? Like many stories in the world of assisted reproductive technology (ART) law, the tale begins with tragedy. The British couple’s only child, a son, had died suddenly in a motorcycle accident, at the young age of 26. Somehow, the son’s body wasn’t recovered for two full days.

But after the discovery of the body, his parents apparently jumped into action quickly; they had their son’s sperm extracted from his body. Once extracted, the parents began the process of trying to use the sperm to bring into the world their own grandchild. Oh boy.

There was one major problem, however. While using a deceased person’s sperm to engage in posthumous conception isn’t illegal per se in the United Kingdom, British law requires that consent of the gamete-provider be expressly provided, and that the consent unambiguously authorize the use of sperm for conception posthumously. The parents didn’t have anything like this with their deceased son.

So without proof of their son’s intentions, the grandparents-to-be hit a dead end in their home country. But they were undeterred. They shipped the sperm from merry old England all the way to the sunshine state, California. Once the sperm had safely immigrated to the West Coast — and probably taken up surfing and a taste for indie music — the British parents arranged to find an egg donor in America. Ultimately, they found the donor, and created embryos. They then found a gestational carrier to act as a surrogate, and bring their son’s son into the world.

The couple were successful, and they now have a three-year-old grandson.

Perhaps morbidly, posthumous conception is, of course, one of my favorite topics.

How Long Is Sperm Good For?

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There are a lot of difficult moral questions in such a case. But first, let me answer the biological question. The fact that the son’s body was not found for two days, and yet we have a baby here today, is medically stunning. Most reports I’ve seen say that sperm or eggs are viable only if recovered fairly immediately after death — in the 24 to 48 hour range. But the son’s body in this case wasn’t even found for two days, before his sperm was extracted. So while I’m only a Juris Doctor, and not a medical doctor, this is an atypical case, as far as I know.

Is The UK Law Good Public Policy?

Now, onto the legal and ethical questions. The United Kingdom’s law on posthumous conception is consistent with a number of other countries that have thought about the line between the freedom to posthumously conceive and the moral questions involved in such a situation. Ireland, for example, recently passed legislation permitting posthumous conception, but only when specific consent of the deceased is present. Israel is one of the more permissive countries when it comes to post-mortem gamete retrieval and posthumous conception. But the Israeli courts involved in such cases also routinely look to the question of consent.

The consent of the deceased is at the peak of ethical concerns when permitting this new form of medically advanced family-building. But some argue that the requirement for specific consent may not be the right answer. In a recent article comparing legal structures of posthumous conception in the US, UK, Australia, and Israel, Harvard law student Shelly Simana argues that posthumous conception should be permitted even without evidence of express consent.

Simana contends that the default should be to presume the deceased consented, unless there was evidence of an objection by the deceased. Simana also suggests that the bodily integrity of the deceased is overhyped — they are deceased, after all — and that ethical considerations should give weight to other competing interests — such as a partner’s interest (if there is a partner) in procreating and becoming a parent, the parents’ interest in grandparenthood, and the child’s opportunity to come into existence. Of course, weighing all of these interests in an appropriate way becomes highly challenging.

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It’s Not Easy In The United States

In the US, like many countries, there’s no clear law when it comes to posthumous conception or postmortem gamete retrieval, with or without the deceased’s consent. There is at least one case where the parents and fiancée of a deceased man (who also happened to die in a motorcycle accident) convinced an Iowa court that sperm falls under the Uniform Anatomical Gift Act. So, just like corneas or kidneys, the next of kin had the authority to donate their son’s sperm for use by the son’s fiancée. Although Australian courts have also occasionally taken this approach, we haven’t seen other US courts following suit.

interviewed Betsy Cairo about this issue. Cairo owns a sperm bank, so we asked her to appear on a podcast that I co-host called I Want To Put A Baby In You. Cairo explained that she has often received the distressed call of a significant other of a recently deceased person asking for help retrieving and storing gametes. But she can’t do anything to help them without the specific consent of the deceased, which is rarely present. Like the UK law, her sperm bank requires specific consent of the gamete provider, because it abides by strict New York tissue bank regulations. That’s true even if the couple was married and planning to have kids. It’s a tough denial, especially when it seems clear that consent would have been freely given if anyone had thought to have that conversation before it was too late.

The Solution

Don’t ride a motorcycle, obviously. But beyond that, think about your untimely death more. If the worst happened, would you want your significant other (or parent, or other relatives) to be able to conceive a child with your genetic material? If so, put it in writing, and in a formal way. Don’t just talk about it abstractly, and don’t leave anything to chance. The best option is to write down your wishes in a will.

In the meantime, for the rest of the world struggling with the ethical dilemmas ripe in this area, the specific consent rule draws a hard line that is easily understandable. But when a sudden death happens, and I am on the phone with the heartbroken significant other or parent — and wanting nothing more than to be able to help — I’ll admit it’s hard to stay true to that line. If we all did, we would have one less three-year-old grandson in England.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.