Posthumous Conception: It Happens More Often Than You Think

The legal landscape is highly dependent on the individual players involved in a request for posthumous DNA retrieval.

Why would someone want to have a baby with the sperm or eggs of someone who is already deceased? Sounds crazy. Or maybe not. But it happens shockingly often.

Olympian’s Widow Gives Birth To His Child 15 Months After His Death

In the latest high-profile controversy over posthumous conception, last month, we learned of the birth of a baby girl to an Australian woman named Ellidy Pullin, the widow of Olympic snowboarder Alex “Chumpy” Pullin. The Olympian died tragically in a diving accident in 2020.

Ellidy Pullin turned to their fertility doctor, Andrew Davidson, and asked that her spouse’s sperm be harvested from his body after his death. Davidson described how he entered fertility medicine never expecting to do posthumous sperm retrievals, but now, those requests are becoming more common. The doctor noted that he has done two other posthumous sperm retrievals since the Olympian’s death.

The process was successful for Pullin — as Davidson notes, it usually is, so long as the sperm is successfully retrieved within 48 hours of death.

What Are The Obstacles?

Davidson described how in Australia, the process to retrieve sperm posthumously varies from state to state. In the northeastern state of Queensland, for instance, a hopeful future parent would need to obtain consent from the coroner, if the coroner is involved, and the approval of the next of kin, as well as the hospital where the deceased person is located. Clearly, based on the Pullin progeny, this is a doable process — at least in Queensland.

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In the United States, the process to retrieve sperm — and specifically, to obtain the necessary permissions to do so — similarly varies state to state. Most states do not have specific laws on point, so the process tends to be more institution-specific, relying most often on whether an individual hospital is willing to permit such a procedure under their policies and procedures. And then the issue becomes whether a medical professional, with the appropriate skills, is willing and available to perform the procedure in the appropriate tight timeframe. You also, of course, need an appropriate place to store the sperm until use. The home freezer is not sufficient.

The Big Hang Up — Specific Consent

In the United States, the hospital itself is the most frequent obstacle that prevents a surviving loved one from having a chance to conceive with the DNA of their deceased spouse or partner. Many hospitals are unwilling to permit the retrieval of reproductive material without specific written consent. And by specific consent, that frequently means not just that the deceased wanted to have children with the survivor. The bar is often set higher. The consent must be that the deceased specifically agreed for their sperm or eggs to be harvested and used for reproductive purposes after their death.

That’s a high bar. It’s hard enough to get a will in place, even though we all know we should have one. (Yes, you included, the person reading this article right now.) But to put in writing that we consent to our loved ones using our DNA for children post-death is something most of us don’t put thought into.

Of course, there have been cases where lawyers have found success for their clients without specific consent by the deceased. In the 2019 case of Peter Zhu, a West Point cadet who died in a skiing accident, his family’s attorney successfully persuaded a judge that evidence of Zhu’s interest in being a father during his lifetime, and the family’s desire to continue their bloodline, was enough.

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But in other cases, families have been unable to persuade a judge or hospital quickly enough to permit a retrieval within the 48 hour post-death period. So the landscape is highly dependent on the individual players involved in a request for retrieval.

As the Pullins’ beautiful baby girl demonstrates, it’s worth taking a few seconds to write down your wishes. And if you have more time — about 10 minutes — you can check out this TEDx Talk where I try to convince the world to write down their posthumous wishes for their DNA. No time like the present!


Ellen 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.