** This blog is for general informational purposes only and is not, nor is it intended to be, legal advice.
While I was researching a topic unrelated to this blog post I stumbled upon the headline “A police officer’s widow gave birth to his daughter this week, three years after he was killed in the line of duty.” After reading that headline, I had to investigate.
The police officer’s widow was able to give birth to a daughter because of a procedure called posthumous sperm retrieval. In 1980, the first posthumous sperm retrieval (“PSR”) procedure was conducted on a 30-year old man who was declared brain dead from a motor vehicle accident. Since that first procedure nearly forty years ago, PSR is performed in patients who are in the persistent vegetative state, otherwise known as a coma with a poor prognosis for recovery. Sperm can generally be extracted from a patient who is declared brain dead or shortly after he is deceased. The first successful birth from PSR occurred in 1999, but since then more than 1,000 requests are made each year. However, most requests do not result in pregnancy because spouses often change their minds.
As you can imagine, many ethical questions exist regarding PSR. Legal implications of patient consent, rights of the deceased, and the motivation of family members who request PSR are all critical issues worth noting.
Countries have responded to PSR in different ways. Most countries have specific legislation addressing PSR; however, the United States does not have government regulations for PSR. The decision on how and when PSR will be performed is up to individual hospitals and fertility clinics. The American Society for Reproductive Medicine (“ASRM”) published an ethics opinion regarding the posthumous retrieval of gametes and embryos; the article stated that fertility programs are not ethically obligated to participate in posthumous reproduction. If a fertility clinic does want to engage in posthumous reproduction, consent forms that stipulate the disposition of gametes and embryos after the death of one or both individuals should be readily available. Caution should be exercised before proceeding with PSR, especially without the deceased’s consent or any written evidence of the deceased’s wishes. If evidence exists that the deceased would not have wanted posthumous reproduction, then medical providers should not provide it.
Many fertility clinics in the United States will only consider requests for sperm retrieval from the decedent’s wife with convincing evidence that the man would have wanted to conceive children posthumously. Evidence can be found through the deceased’s actions or discussions prior to death with respect to conception and pregnancy and/or stated or written wishes regarding PSR before death. ASRM recommends that counseling should be offered to the grieving party. ASRM also encourages an adequate timeframe to allow for grieving before making the decision to have a child through this process.
Medical providers and recipients of PSR might want to familiarize themselves with their specific state laws regarding posthumously conceived children. Jurisdictions vary on whether children are legally recognized as offspring of the deceased and whether they are entitled to any benefits of the deceased. Fertility clinics should be knowledgeable about the applicable state laws and should advise patients to seek legal counsel regarding specific state laws on PSR.
As always, the team at ThompsonMcMullan is here to assist you should you need any help or have questions in family planning and expansion.
This blog is the product of a collaborative effort by Attorney Sherry Fox, Attorney Frances Caruso, and Paralegal Mollie Schwam.
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