Family Law

All The Smart, Good-Looking Attorneys Need To Sign This Form

If you want your gametes (sperm or eggs) used for the conception of a child after your death (aka passing on your brilliant attorney genes to the next generation), you need to indicate your express wishes in writing.

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Lately, it’s becoming more common to hear stories where the wife of a man who died too young wants to preserve his sperm in order to have a child. It’s not just spouses, of course. Sometimes it’s a fiancée or other significant other. Or the deceased is a woman and loved ones are requesting her eggs or ovaries be saved. But the latest case has a different twist.

Last month, a West Point cadet in the United States Military Academy suffered traumatic injuries in a skiing accident. His parents, devastated by the loss of their son, asked their attorney to obtain a court order authorizing his sperm to be retrieved before being taken off life support. The decedent’s parents argued that they wanted to fulfill their son’s desire for children. They also argued the deep cultural significance to them of continuing the family bloodline and name — which would otherwise end with their son’s death. There is no mention of a spouse or significant other. So presumably, the family is facing a future of numerous assisted reproductive technology interventions to achieve the continuation of their bloodline. This likely includes an egg donor and a gestational carrier and significant medical expenses. At the end of the day, the parents likely hope to have a new grandchild, who they would raise themselves.

Time was of the essence, of course, because sperm generally must be harvested and frozen within 48 hours of death. The court granted the order. The sperm was retrieved. Now, the parents face the next hurdle: whether they can actually use the cryopreserved sperm. That hearing is scheduled for next week, on March 21.

An Impressive Win In An Area Lacking Legal Guidance

There are, of course, numerous profound ethical issues to be considered in these cases. Putting that discussion aside, this ruling is truly impressive. Especially in light of so many failed predecessors. I spoke with John J. Husson, Esq., a Colorado assisted reproductive technology attorney, who, after two decades practicing in this field, has seen a sharp increase in requests for post-mortem retrievals in cases of a sudden death. He has worked on a number of these cases just in the last few years.

Husson explained that there is a significant lack of law in this area. No statutes dictate specifically who can retrieve, control, and/or use the genetic material of a deceased person. What little specific posthumous reproduction guidance there is, is found in the form of guidelines issued by the American Society of Reproductive Medicine (ASRM), and, if applicable, in a state’s Uniform Anatomical Gift Act.

ASRM frowns on post-mortem gamete retrievals and use, unless the donor’s consent was made explicit and in writing before his or her death. As a result of the lack of a binding legal framework, Husson notes that his clients have been subject to the whims of those who are in control of the deceased’s body. “Religious health care facilities can be particularly troublesome because their doctrines may disapprove of the use of assisted reproduction technology.”

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Husson described the resulting irony of such an environment. In a recent successful case (where sperm was allowed to be retrieved from the deceased without a court order), a man was tragically and instantly killed in an accident. As a result of the immediate death, the body was not taken to the hospital, but to the coroner’s. Husson explained how the coroner was helpful in assisting with the wishes of the family. In stark contrast, Husson described how he worked on cases where death was not immediate, and the dying person was taken to the hospital. After the death, the decedent’s next of kin and loved ones were forced to grapple with the bureaucracy of the litigation-fearing hospital management, who stood in the way of a retrieval. In addition, Husson reported that many fertility centers and urologists refuse to get involved in posthumous gamete retrieval situations due to a fear of litigation.

The West Point case’s success is so rare because of the incredibly short time frame loved ones have to convince a medical facility to permit the retrieval — generally, only 48 hours from death. And, like in the West Point case, it is not unusual for a hospital to ask a family to produce a court order prior to permitting a retrieval. Finding an attorney, filing the petition, and getting an emergency hearing, all within two days (while also being emotionally devastated by the loss of the loved one), is an extremely difficult task.

The Solution. For Free. (You Get What You Pay For.)

The most significant fear that almost every institution and medical professional has is a lack of consent of the deceased. The solution for you and your loved ones, therefore, is easy. If you want your gametes — sperm, or eggs for that matter — used for the conception of a child after your death (aka passing on your brilliant attorney genes to the next generation), you just need to indicate your express wishes in writing. Back in Season 2 of the I Want To Put A Baby In You podcast, sperm bank director Dr. Betsy Cairo and I discussed the need for an easy way to document this type of consent. Here it is! Consider completing this and giving it to your fiancé(e) (or parents?) as an early birthday present.

(And for those of you who missed the earlier podcast episodes, you can even listen to the founder of Above the Law, David Lat, discuss his incredible path to parenthood.)

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Now press print, and get that form completed.

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.

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