Family Law

The Dead Will Reproduce, Legally -- And That’s Okay

Believe it or not, there is no law preventing this type of posthumous use of gametes.

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A few months ago, I wrote about the case of Peter Zhu, a West Point cadet who tragically died in a skiing accident. His parents petitioned a court to have his sperm retrieved for the possible use of procreation. At that time, the judge granted the retrieval, scheduling a later hearing to determine if the parents would be able to use the retrieved sperm for any purpose, and specifically for conception purposes. That second hearing happened last week, and the results are in. And you may already be aware of the shocking results: the court gave the parents — who may soon become grandparents — the green light to use their son’s cryopreserved sperm as they wish, including the possibility of conceiving their own grandchild.

No Violence To His Memory

Judge John Colangelo for the Superior Court of New York, Westchester County, focused his analysis on whether Zhu would have consented or wished for his sperm to be used posthumously. The testimony of Zhu’s parents, as well as that of his supervising officer at the academy, confirmed that Zhu had wanted and planned for kids. Of course, there was no express evidence that he would have wanted kids to be conceived after his death with his genetic material. Because, you know, who talks about that?! Much less, who puts it in writing? Zhu did, however, put in writing that he wished to be an organ donor. The court looked to the laws governing organ donation, which would squarely place decision making power in his parents’ hands. And, after all, New York Public Health Law does speak to organs, tissue, and body parts, and broadly defines tissue to include “spermatozoon.”

The court concluded, “even though Peter did not expressly state that he wanted his sperm to be used for reproductive purposes, should his parents chose to do so in the future, it would not do violence to his memory. Indeed, as his parents confirmed in their Petition and testimony, such use would not be contrary to Peter’s moral or religious beliefs, and would be consistent with his past conduct and statements.”

I admit that while I’m pro-baby, I struggle with the inference that wanting children during one’s lifetime equates to wanting one’s genetic material used to conceive such children after one’s death.  Obviously, there’s a big difference between wanting kids to raise them, and wanting kids when other people would have to raise them. However, this court was certainly not the first to make the inference, so it is not alone in its conclusions. Other courts have read the desire of the deceased for children generally as implying a consent for children post-death. And Judge Colangelo was not the first to look to the decedents wishes as an organ donor to support posthumous use of the deceased’s DNA for reproduction. He cites to an Iowa case where the parents, wishing to retrieve and use their son’s sperm, not only pointed to the fact that their son was an organ donor, but had even called as a witness one of the drafters of the Uniform Anatomical Gift Act (UAGA) to testify that UAGA was intended to include sperm!

We Don’t All Agree

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The court warns that the parents may face obstacles with medical providers. That’s a fair assessment, given that the American Society for Reproductive Medicine issued an ethics opinion opposing gamete retrieval when confronted with a situation similar to the Zhu case. The 2018 “Posthumous retrieval and use of gametes or embryos: an Ethics Committee opinion” specifically provides that, “In the absence of written documentation from the decedent, programs open to considering requests for posthumous use of embryos or gametes should only do so when such requests are initiated by the surviving spouse or partner.” That wasn’t the case here, because Peter Zhu was unmarried, and his parents are the ones who want to see that his genetic child is conceived.

Aside from having some supporting cases out there, perhaps the real answer is that there is no law preventing this type of posthumous use of gametes. As a society, if we were collectively opposed to this type of activity, some could certainly try to pass a law preventing it. Ireland, for instance, has. (It allows posthumous retrieval when consent is present; but use only by the deceased’s partner, and that partner must carry the pregnancy, aka have a uterus.)

As an author of a law review article “Reproductive Rights for the Dead” pretty on point for this case, I get it. Some people find posthumous conception bizarre and upsetting. For now though, it is the living survivors, with deep-seated beliefs for the future of their family and the wishes of the departed, that have prevailed in court.

While the result of a child being intentionally conceived to be raised by their grandparents may seem a little bizarre, it’s hard to be too angry about a situation where a child may come into the world with loving guardians who went to great lengths to fight for the child’s existence.

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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, 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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