ABA Health eSource
October 2008 Volume 5 Number 2

Post Mortem Gamete Retrieval After Christy
by Bethany Spielman, Southern Illinois University School of Medicine, Southern Illinois University School of Medicine, Springfield, IL

Bethany SpielmanThe Revised Uniform Anatomical Gift Act (UAGA 2006) has rapidly become the majority version of UAGA in the U.S. 1 It was targeted for adoption by all states by 2009 by the National Conference of Commissioners on Uniform State Laws and has been adopted by most states. 2 With the support of the Act's principal drafter, a judicial interpretation of the act in Christy merged two previously disparate areas of healthcare services: cadaveric organ and tissue retrieval, and postmortem gamete retrieval. This article recommends that hospital legal counsel become familiar with three key areas of conflict between UAGA 2006 and ethical guidelines for reproductive medicine specialists .: Is consent to postmortem gamete retrieval required? May gametes be retrieved from minors? May gametes be donated to close family members?

A. In Re Matter of Daniel Thomas Christy

On September 9, 2007, twenty-three-year-old Daniel Christy suffered severe head trauma in a motorcycle accident in southeast Iowa. Christy was listed as an organ donor. While waiting in a hallway of the University of Iowa Hospital, where Christy was hospitalized, Christy's fiancée, Amy Kruse, began to consider the possibility of having Daniel's sperm retrieved and saved. She and Daniel had planned to have children together. As it became clear that Christy was near brain death, Ms. Kruse discussed the possibility of sperm retrieval with Daniel's parents and others. His parents, as Daniel's medical surrogate decision makers, asked the hospital to retrieve his sperm. The hospital's ethic s committee was consulted but was unable to reach a decision. The University refused to retrieve the sperm without a court order. Daniel's parents filed a request for an emergency order. The principal drafter of the 2006 Uniform Anatomical Gift Act (UAGA 2006 ) filed an aff i adavit in support of the Christy 's stating that the National Commissioners on Uniform State Laws had contemplated a situation such as this. Judge Martha Beckelman of the 6 th District court Court of Iowa decided in favor of Daniel Christy's parents, ruling that the A act applies to sperm. "Under the act, an anatomical gift, including the gift of sperm , can be made by the donor, or, if the donor did not refuse to make the gift, by the donor's parents following the donor's death," she wrote. 3 After the ruling, however, the University still refused to retrieve the sperm until the Christys located a storage facility for it. The University of Iowa's Center for Advanced Reproductive Care would not store it or otherwise assist the Christys because it did not permit the use of sperm from donors who are unable to consent . . The hospital eventually agreed to store the sperm for up to a week while the Christys searched for a storage facility. Ms. Kruse and Daniel Christy's parents found a storage facility, then signed a consent form, agreeing to use the sperm only for in vitro fertilization , and agreeing not to have the fertilization done at the University of Iowa. Sperm was removed from Daniel Christy in the surgical intensive care unit on September 14. With family present, hospital staff then turned off the respirator.

II Implications of the Ruling: Three Questions and Six Answers about Post Mortem Gamete Retrieval (PMGR)

JJudge Beckleman's ruling has implications beyond the 6th District Court. Because of the Act's "uniformity of interpretation" provision, judicial interpretations of uniform acts are considered persuasive authority in jurisdictions that have adopted the acts. 4 The ruling is therefore likely to affect decisionmaking across the country. Additionally, because UAGA 2006 does not distinguish between male and female gametes, conflict like that between the Christys and the University of Iowa Hospital and the Center for Reproductive Services will be repeated, but also multiplied and made more complex, as families and potential gamete s recipients request help in implementing a wide variety of postmortem reproductive options. The Christy ruling is consistent with, and paves the way for, heightened survivor and recipient expectations about the possibility of postmortem gamete retrieval (PMGR).

Survivors and potential gamete recipients will inevitably ask for some gametes that medical professionals are reluctant to retrieve. Before Christy, the legality of PMGR was uncertain; healthcare organizations like the University of Iowa Hospitals were justified in declining some requests in order to protect their own legal and reputational interests. But Christy gave the legal "green light" to treating gametes as anatomical gifts under UAGA 2006. As a result, survivors and potential gamete recipients may become more assertive in their requests, and healthcare organizations may wonder whether requestors have a right to expect every request for gametes to be satisfied. Disputes are likely to focus on three questions: (1) Is Consent to PMGR Required?; (2) May Gametes be Retrieved from Minors?; and (3) May gametes be donated to close family members?

A) Is Consent to PMGR Required? Two Answers

Some medical centers, as well as ethical guidelines of the American Society for Reproductive Medicine (ASRM), require evidence of consent on the part of the gamete source. 5 UAGA 2006, however, does not require such consent. Under UAGA 2006, as long as the deceased has not explicitly refused to donate, consent may be given by those on a list of prioritized decisionmakers. Its list of persons authorized to give consent includes individuals who may also be potential recipients of the gametes. 6

B) May Gametes be Retrieved from Minors? Two Answers

Some medical centers, as well as ASRM guidelines, prohibit gamete retrieval from minors. ASRM guidelines assume that only adults--not minors--will be involved in posthumous reproduction. Moreover, And ASRM guidelines that address living gamete donors state that programs should not allow minors to participate as gamete donors. 7

UAGA 2006, by contrast, permits postmortem retrieval from any minor who is old enough to apply for a driver's license. Under UAGA 2006, whether minors have consented or refused, they may, upon death, be the source of organs and tissues, including gametes, if their parents consent. 8

C) May gametes be donated to close family members? Two Answers

Some programs, as well as ASRM guidelines, strongly discourage retrieval for donation to certain close family members: brother to sister sperm donation; sister to sister - in - law egg donation; father to daughter sperm donation; and maternal or paternal aunt donation to infertile wife of nephew. 9 UAGA 2006, however, permits retrieval of organs and tissues for donation to these close family members. 10

In the face of UAGA 2006's new "permission," healthcare providers are likely to feel pressured by survivors and potential recipients to perform some PMGR that they are not ethically prepared to perform. Just because UAGA 2006 provides a more permissive answer in each case than do ASRM guidelines doesn't mean that hospitals must acquiesce to survivor and potential recipient requests. Legal counsel should be aware of the discrepancies, however, between UAGA 2006 and professional ethical guidelines and help their organizations address them before they become the occasion for conflict.

1 Revised U.A.G.A. (2006); Iowa Code § 142C.1. et seq. The Uniform Anatomical Gift Act provides the framework for uniform laws governing cadaveric organ and tissue donation in the states.
2 National Conference of Commissioners on Uniform State Laws, Uniform Anatomical Gift Act, available at http://www.anatomicalgiftact.org/DesktopDefault.aspx (visited September 8, 2008).
3 In re Daniel Thomas Christy, Johnson County Case No. EQVO68545 (Sept. 14, 2007).
4 Del. J. Corp. L. 350 (1999) Unreported Cases: General Electric Co. v. Star Technologies, Inc. No. 14,923 Court of Chancery of the State of Delaware, New Castle, July 1997; Hicks. V. Meyers. 2 Va. Cir. 122 at 122; Bohna v. Hughes, 828 P. 2d 745 at 759 ( Alaska 1992); Matthew B. Todd, Avoiding Judicial In-Activism: The Use of Legislative History to Determine Legislative Intent in Statutory Interpretation, 46 Washburn L. J. 189 (2006) at 215.
5 New York Hospital Guidelines for Consideration of Requests for Post-mortem Sperm Retrieval, available at http://www.cornellurology.com/guidelines.shtml (visited July 3, 2008) James J. Finnerty, et al., Gamete Retrieval in Terminal Conditions: Is it Practical? What are the Consequences?, 2 Current Women's Health Reports 175-178 (2002) at 177; Michael R. Soules, Posthumous Harvesting of Gametes -- A Physicians' Perspective, 27 J.L. Med. & Ethics 362-364 (1999) at 364; The Ethics Committee of the American Society for Reproductive Medicine, Posthumous reproduction, 82 Fertility and Sterility Supp. 1 (Sept. 2004) S260-S262; The Ethics Committee of the American Society for Reproductive Medicine, Family Members as Gamete Donors and Surrogates, 80 Fertility and Sterility 1124-30 (2003) at 1129.
6 Revised U.A.G.A. § 9 (2006).
7 The Ethics Committee of the American Society for Reproductive Medicine, Posthumous reproduction, 82 Fertility and Sterility Supp. 1 (Sept. 2004) S260-S262.
8 Revised U.A.G.A. §§ 4, 8 (2006).
9 The Ethics Committee of the American Society for Reproductive Medicine, Family Members as Gamete Donors and Surrogates, 80 Fertility and Sterility 1124-30 (2003) at 1129.
10 Revised U.A.G.A. § 11(2006).

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