Posthumous reproduction: perspective on the ASRM guidelines

By Brian E. Edwards, MA, and Edward E. Wallach, MD

In today's technology-intensive practice climate, posthumous reproduction remains a rare patient-care dilemma, yet it is a situation that deserves careful consideration.

The introduction of assisted reproductive technology (ART) has provided physicians, ethicists, and lawyers with a host of novel issues for which solutions need to be found. The recent birth of a child conceived with sperm withdrawn from a dead man has attracted considerable attention in both the scientific and lay press.^1,2 The increasing capabilities of modern reproductive technology are accompanied by new ethical quandaries.

Posthumous conception involves conception after the death of one or both of the gamete donors. In the case where the male partner is deceased, there are two potential sources of gametes: sperm cryopreserved prior to death and sperm retrieved after death. Sperm cryopreservation has been used successfully to preserve fertility in the face of radiation or chemotherapy. Sometimes the outcome of such treatment is unfortunate and the man dies. The female partner can subsequently use the stored gametes for artificial insemination or in vitro fertilization and thereby be impregnated with the gametes of the deceased partner, thereby initiating posthumous conception.

Postmortem sperm retrieval has become another method for facilitating posthumous conception. Rothman published a brief report describing "a method for obtaining viable sperm in the postmortem state."³ Surgical means were used to remove viable spermatozoa from the vas deferens of a male traffic casualty. This method plus manual and electrical means of ejaculatory stimulation have been used to retrieve viable spermatozoa from both recently deceased men and males who exist in a persistent vegetative state.^3-5 Because none of these men had provided explicit consent for posthumous sperm retrieval while alive, interested parties sought evidence for implicit consent. In one case, opinions voiced by the deceased before death about his desire to have no more children provided the impetus to deny retrieval.⁴

As with any medical procedure, informed consent should be sought before sperm or oocyte extraction and the cryopreservation of gametes and embryos. Documentation of explicit consent permitting postmortem sperm retrieval would be uncommon. This absence of consent is primarily due to the relative novelty of the procedure. Therefore, postmortem sperm retrieval often occurs with either a complete lack of consent or through an implied consent.⁴ Expressed wishes or actions during one's life could serve as a form of implied consent. An example of the former would be an earlier expression by the deceased of his desire to someday have children. An example of the latter could include continuous efforts, interrupted by death, to conceive a child. Implied consent has an obvious shortcoming. It is not logical to assume that since the man desired children while alive, he would want children who would never know their father to be born. Implicit in expression of a desire for fatherhood during life is the thought that the man would be able to participate in the life of his child.

In posthumous conception, a child is created. This child will never know its biological father and may have a confused sense of lineage. It can be argued that the conception of this fatherless child is tantamount to intentionally producing a disadvantaged child. However, one cannot conclusively prove that single parenting will have a detrimental effect on the developing child. This opinion may, in fact, originate in a rigid idealization of a traditional family structure, rather than any concrete claim. Unless overwhelming evidence surfaces that confirms psychological harm to children reared by a single parent, analysis of the procedure should proceed on other grounds.

The right to nonprocreation

Posthumous conception involves the possibility of nonvoluntary parenthood. Under the law, there is a protected right to nonprocreation as noted in Davis v. Davis.⁶ This case dealt with the disposition of cryopreserved embryos in divorce. The court awarded custody to Mrs. Davis, who wished to undergo embryo transfer or, later, donation. The court's decision was based on the assumption that the preimplantation embryos constituted human beings with all appropriate protective rights. Upon appeal by Mr. Davis, who preferred that the embryos not be transferred, the court decided that rather than award the embryos to one or another of the couple, the trial court should determine an equitable method of joint custody. Following this decision, Mrs. Davis sought the opinion of the Supreme Court of Tennessee. This court found that there is a right to "procreational autonomy" protected by the Fourteenth Amendment. Along with the right to procreate is the right not to procreate. It is this right of nonprocreation that led the court to determine that if Mrs. Davis had other means to achieve pregnancy without the cryopreserved embryos, then Mr. Davis' interest in nonprocreation would prevail.

While this concept should protect some from becoming parents after death, it can also provide for the converse. This is best illustrated by another legal case, that of Hecht v. Superior Court.⁷ This case, argued in the California Court of Appeals, involved the distribution of previously cryopreserved sperm. Before committing suicide, William Kane willed multiple tubes of frozen sperm to his girl friend, Deborah Ellen Hecht. He provided explicit written consent for use of his sperm in impregnating Hecht. Kane's children from a previous marriage, in an attempt to avoid complications of inheritance, sued to prevent Hecht from using the sperm. Hecht, as proxy for her yet-to-be-conceived child, relinquished all claims to the estate of William Kane. A subsequent trial ordered the destruction of the stored sperm. In the end, the stored samples were not destroyed and the right of Ms. Hecht to the sperm was confirmed. Mr. Kane's specific desires were maintained through the carrying out of his last will and testament.

Respect for the reasonable wishes of the deceased is consistent with the values of our society. Simply stated, this respect offers a great deal of assurance to the living. Knowing that one's corpse will not be mutilated, or that one's estate will not be randomly distributed to various town officials provides a significant measure of security to the living. Postmortem sperm retrieval without consent represents a violation of the bodily integrity of the deceased, but posthumous conception represents an affront to symbolic autonomy of the deceased. During life, the right of an individual not to procreate is protected. Likewise, after death, this right should also be defended.

To reiterate, informed consent is obtained before cryopreservation of sperm or embryos. There are stipulations concerning the disposition of the embryos or sperm in such situations as divorce, death, or loss of contact between the storage facility and the gamete donor(s). All possible contingencies are considered in an effort to maximize the "informed" nature of this decision.

Implications for ob/gyn practice

Posthumous conception is at the forefront of reproductive technology. There are no coherent federal, state, local or institutional regulations at present to deal with this complicated issue. It will be necessary for the physician to foster a dialogue about this issue until such guidelines exist.

The clinician should inform gamete donors about the technical possibilities of posthumous conception. The clinician must also inform such patients of the possible consequences of their decisions, including potential financial and social hardships. It is also important to relay the power of the grief process and how it may drive the surviving partner to pursue posthumous conception for reasons of guilt or a sense of duty to the deceased partner. For example, if a man were to die, leaving either frozen embryos or sperm, his wife may choose to pursue a pregnancy out of a feeling of duty or of a need to construct a living tribute to her dead spouse. These feelings would hamper a rational decision-making capacity. An improper motivation to pursue a pregnancy may ultimately prove psychologically, physically, and financially detrimental to the surviving partner. An active dialogue may reveal these possibilities. The man, through clearly documenting his wish that his sperm/embryos not be used after his death, would prevent the possibility of the conception based on feelings of guilt and a potentially misplaced sense of duty. Only through a clear and active dialogue can consent be truly informed and potentially unfortunate situations avoided.

Use of extant embryos and cryopreserved sperm after the death of the donor would be acceptable when there is explicit consent, provided the potential recipient is of sound mind and is in agreement with the aim of the deceased. The rationality of the grieving recipient could be ensured through the use of a temporary moratorium on use of the gametes or embryos. This would give the recipient time to grieve and work through potentially misplaced feelings of guilt and duty. The question of postmortem sperm retrieval is more complicated, as consent would be difficult to obtain, given the often accidental nature of the death in question. Death cannot be predicted and there would generally be no reason to gather such consent ahead of time. Ideally, consent for postmortem sperm retrieval could be given through a stipulation in a will or through specific notation in a durable power of attorney. Education about this technology may better enable the public to both accept it and to prepare for its possibility through the preparation of appropriate documentation. Federal and state legislatures, in concert with concerned institutions, must determine a set of rational and well-reasoned guidelines in order to prevent abuse.

REFERENCES

1. Andrews LB. The sperminator. New York Times. March 28, 1999; Sect 6:62.

2. A birth spurs debate on using sperm after death. New York Times. March 27, 1999; Sect A:11.

3. Rothman CM. A method for obtaining viable sperm in the postmortem state. Fertil Steril. 1980;34:512.

4. Ohl DA, Park J, Cohen C, et al. Procreation after death or mental incompetence: medical advance or technology gone awry? Fertil Steril. 1996;66:889-895.

5. Kerr SM, Caplan A, Polin G, et al. Postmortem sperm procurement. J Urol. 1997;157:2154-2158.

6. Furrow BR, Johnson SH, Jost TS, et al. eds. Health Law: Cases, Materials, and Problems. 3rd ed. St. Paul, Minn: West Pub Co; 1997.

7. Shah M. Modern reproductive technologies. Legal issues concerning cryopreservation and posthumous conception. J Leg Med. 1996;17:547-571.

Mr. Edwards is a graduate student, Department of Obstetrics and Gynecology, The Johns Hopkins University School of Medicine; Dr. Wallach is Professor of Obstetrics and Gynecology, Department of Gynecology and Obstetrics, The Johns Hopkins University School of Medicine, Baltimore, Md. He is also a former president of the American Society for Reproductive Medicine (ASRM).

 

Edward Wallach. Posthumous reproduction: perspective on the ASRM guidelines. Contemporary Ob/Gyn 2000;10:89-97.