Lower appellate court cases in Washington in 2009 and Pennsylvania in 2013 upheld the authority of a court to treat cryopreserved embryos as property, at least in the context of a divorce. It is not clear, except possibly under unique facts, that such a ruling would apply to an estate.
A gift of gametes or embryos by a person later deceased might imply consent on the part of the giver to produce a child. The fact that cryopreserved material is ordinarily in the possession of a cryopreservation facility may complicate such an assumption. Moreover, in general, courts have been reluctant to permit posthumous sperm retrieval or embryo transfer without a previous clear and explicit declaration, usually in writing, by the deceased.
A possible exception in the case of post-mortem sperm retrieval (PMSR) would be to consider it as an anatomical gift and subject to state law on anatomical gifts. An intriguing question is whether parents of, or other decision-makers for, the deceased, who might ordinarily give consent for anatomical gifts, would be permitted to consent to PMSR without a previous declaration by the decedent. What about the wishes of an unmarried partner, as opposed to those of the deceased’s parents? As has occurred in the United Kingdom, statutes might also limit the ability of a surviving progenitor or third party to transfer embryos for gestation.
Rights and Responsibilities of Physicians
A not-uncommon scenario is one that begins with a man in an emergency room with a severe traumatic injury who is either deceased or expected to die. A family member—a spouse, sibling, or parent, say—requests or even demands extraction of sperm. The situation becomes more dramatic when immediate use of the extracted sperm for IVF insemination is desired, since the viability of sperm outside the body is limited to at most a few hours. A decision becomes a matter of urgency, especially where the person desiring extraction threatens legal action if the sperm is not extracted. A logical solution, if in doubt, might be cryopreservation (with the clear understanding that it will not be used without a court order), leaving the decision about use of the sperm to a court. The situation isn’t quite that simple, since the wishes, often unexpressed, of the decedent are key. Then there is the matter of consent, as discussed above, since extraction is arguably a medical procedure that would require it. Moreover, in some ways, incompetency resembles death for purposes of progenitor “consent” and determination of legal parentage.
In 2013, the Ethics Committee of the American Society of Reproductive Medicine declared that the physician may ethically not comply with the request unless there has been a clear previous expression of consent to undergo the procedure and intent to be at least the biological father of the resulting child. It appears that the physician could ethically comply with such a request if made by a surviving spouse or “life partner.”
Policy Considerations, and Legal Rights and Responsibilities
Parentage may be thought of as a combination of social, biological, and legal status. As we have seen, there are, and ought to be, constraints on the establishment of legal parentage long after the death of a biological would-be parent, even though there is a genetic tie that, in the pre-cryopreservation world, might determine legal parentage. As a matter of policy, children ought to have the benefit of a social parent, i.e., one who would be recognized in the community as a parent, and who would be capable of rearing and nurturing them, as well as a legal parent, i.e., one who would be legally responsible for a child’s support.
Storage facilities may or may not possess some degree of dispositional control of cryopreserved gametes or embryos in their possession, but generally, dispositional control would remain with a surviving spouse, or life partner in the case of embryos, or one who has received them as a gift during the decedent’s life, subject to the law in the jurisdiction. The decision to use gametes for fertilization or to transfer an embryo after the death of a progenitor (the gamete provider) may impact not only the individuals who would be the child’s parents (and questions about legal parentage should be resolved before embryo transfer), but heirs or legatees of the deceased’s estate. In 2007, a New York court in Matter of Martin B, 841 N.Y.S.2d 207, permitted a widow’s children, created by means of her deceased husband’s frozen sperm, to be considered “issue” and “descendants” and thus to be beneficiaries of trusts created by the deceased husband’s father.