June 01, 2016

New Life after Death: The Legal Landscape of Posthumous Collection and Use of Gametes

Advances in medical science have enabled the retrieval and use of reproductive material, sperm and ova (collectively, gametes), from a recently deceased individual for procreative purposes. Families experiencing the unexpected death of a loved one may wish to use these advances in hopes of conceiving a child who would carry on the deceased’s genetic legacy. One scenario in which this may happen: A young man dies in an accident and is survived by his spouse. The couple wanted a baby and the surviving spouse continues to long for that child. Doctors can retrieve the deceased man’s sperm, which stays viable for around 48 hours after death, or doctors can use genetic material that the couple had previously stored for future use. While science has made it possible for a dead person’s survivors to conceive a child using his or her reproductive material, the ethical status of the practice and the legal status of the child are far from certain.

A review of legislation, case law, and professional guidelines reveals that there is no uniformity concerning the posthumous retrieval and use of reproductive material. There is also no consistency regarding the legal parentage or inheritance rights of children conceived from this new science. Although medical society guidelines specifically address posthumous retrieval and use, they are still merely suggestions for physicians and do not have the force of law.

Balancing Respect for the Law and the Dead

Generally speaking, decisions about whether to retrieve gametes from a deceased person are viewed through the lens of respect for the dead person’s body and the preference for not desecrating a corpse. Consenting to the procedure is the duty or privilege of the deceased’s next of kin1—typically a spouse or parent. If the retrieval procedure is performed, there is an expectation that the gametes will actually be used to conceive a child. Otherwise, as articulated by one writer, if the surviving spouse or parent decides not to use the gametes to conceive a child after all, the decedent’s corpse would have been violated for no other reason than to give the survivor reproductive peace of mind for a few years.2

In the United States, there are no federal statutes or regulations and few reported cases relating to posthumous reproduction. While lacking the force of law, doctors and lawyers have stated in ethics opinions and model legislation that the deceased person’s consent to the retrieval must be documented for the procedure to be performed. The American Society for Reproductive Medicine (ASRM) advised its members that a spouse’s request for the posthumous removal of sperm “without the prior consent or known wishes of the deceased spouse need not be honored,” and, because these requests pose judgmental questions, they should be considered individually in light of circumstances and relevant state law.3 The American Bar Association’s 2008 Model Act Governing Assisted Reproductive Technology prohibits retrieval of gametes from a dead body unless the deceased consented prior to death or in a record, except in the event of an emergency where the required consent is alleged but is unavailable and where, in the opinion of the treating physician, loss of viability would occur as a result of delay, and where there is a genuine question as to the existence of consent in a record.4

There are scant reported cases about the legality of postmortem gamete retrieval. In 2007, an Iowa state court found implied consent for posthumous sperm retrieval and use because the decedent had consented to be an organ donor under Iowa’s version of the Uniform Anatomical Gift Act.5 But in 2010, a Massachusetts hospital declined a husband’s request for posthumous retrieval of his deceased wife’s ova. In the absence of legal authority, the hospital administration decided to adopt a consent approach and found a lack of evidence of the wife’s consent.6 Given the medical ethical opinions against the practice, anyone desiring his or her gametes to be available for posthumous reproduction—say, a person in the military or someone who is terminally ill—should draft a written consent for such a procedure, even though it is not guaranteed to be sufficient in every state.

American laws requiring clear evidence of the deceased’s consent are on track with developing law in the international community. For instance, Canadian law allows posthumous conception only with the deceased’s written informed consent,7 and the law in the United Kingdom requires explicit written consent for posthumous reproduction.8

In 1984, the earliest reported international case, a French court found that it was a deceased man’s intent to have his wife use his cryopreserved sperm to conceive a child.9 But courts within a country can be inconsistent, as demonstrated by those in Australia. In 2012, an Australian court granted a request for posthumous sperm retrieval, though for preservation only.10 The decisions of other Australian courts grappling with posthumous retrieval of reproductive material have gone the other way, being overwhelmingly negative.11

Israel has been at the forefront of creating law to allow for continuing bloodlines after death. Israeli law requires only implied consent for posthumous sperm retrieval for the purpose of later insemination by a surviving female partner, but permission to use the sperm must be determined on a case-by-case basis.12 Israeli attorney Irit Rosenblum trademarked the Biological Will, which documents plans for use or disposal of sperm, ova, and embryos in case of death, incapacitation, or infertility. She also established the Biological Will Bank, which contains the reproductive material of about 1,000 men and women. In 2014, approximately 100 families were reportedly in various stages of the procedure, and four children have been born in this manner since 2001.13 For example, the child of soldier Keivan Cohen, killed by a sniper in 2002, was born 11 years after his death.14 Cohen, 20, was single and left no will. But his parents demanded that a hospital take a sample of his sperm two hours after his death. The sperm was held at the hospital, and administrators later refused to give his parents the sample, stating that only a spouse had such a right. A four-year court battle ensued, and with Rosenblum representing them, a Tel Aviv court ruled in the would-be grandparents’ favor in 2007. Israel, among the few countries that have addressed posthumous reproduction, is alone in recognizing the rights of parents to posthumous use of the deceased’s cryopreserved reproductive material in order to create grandchildren.

From Grave to Cradle

While the United States may be lacking in law defining when gametes can be retrieved from a deceased person, a handful of states have explicitly addressed when the use of gametes for posthumous conception is recognized—and whether the deceased person is legally the parent of the resulting child. Five states—Alabama, Colorado, New Mexico, Texas, and Utah—have adopted the 2000 version of Uniform Parentage Act (UPA) section 707. Regarding the question of parentage, the 2000 UPA provides that if a spouse dies before placement of eggs, sperm, or embryos, the deceased spouse is only a parent of the resulting child if he or she consented on record to be the parent if assisted reproduction were to occur postmortem.15

Delaware, North Dakota, Washington, and Wyoming have adopted the 2002 amended version of UPA section 707, which expands the availability of parentage to any “individual” who consents to posthumous conception, rather than to only a “spouse.”16

As to the issue of consent, two states, California and Louisiana, expand on the UPA, requiring the deceased spouse’s consent to parenthood to be in writing.17 The California statute can be viewed, in part, as codifying the 1993 case Hecht v. Superior Court,18 in which the California Court of Appeals vacated the lower court’s ruling adverse to Deborah Hecht. Her boyfriend, Bill Kane, age 48, killed himself in 1991, the same year he visited California Cryobank Inc. with Hecht six times. Kane bequeathed the frozen sperm to her in his will and said as such in a letter to his adult children. The courts grappled with the question of whether sperm is property that can be transferred in a will. His adult children and former wife fought to prevent Hecht from receiving the 15 vials. The Los Angeles County Superior Court ordered the sperm destroyed in 1992, but was reversed on appeal, permitting Hecht to conceive a child if she chose to do so.

Growing Up Posthumously Conceived

These children of modern science face unique issues regarding inheritance rights. While it is possible for children to be born after one parent has passed without the use of assisted reproductive technology, the advancements mean the deceased can have a genetic child born years, even decades, after death.

Generally, a deceased person must have stated his or her intent that any posthumously born children will be recognized as heirs. In addition to the various iterations of the UPA, the Uniform Probate Code (UPC) includes the class of later-born children as being eligible to inherit from the genetic parent’s estate.19 Colorado and North Dakota have adopted UPC sections 2-120 and 2-121, which state that the deceased spouse’s consent can, but does not have to be, in writing and can also be presumed or demonstrated through clear and convincing evidence.20

Some states’ laws have placed greater limits on inheritance rights. For example, in Florida, “[a] child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.”21 Other state laws impose a timetable within which the sperm or eggs must be used to conceive a child for inheritance purposes.22 These particular state laws have been applied in cases deciding a posthumously conceived child’s right to Social Security benefits from the deceased.23

In the United States, the Rule Against Perpetuities, which has been retained in most of the country, must also be considered. The rule is usually stated as: no interest is good unless it must vest, if at all, not later than 21 years after the death of some life in being at the creation of the interest.24 The rule is notoriously difficult to properly apply.25 Depending on when the death of the specified “life in being” occurs, the rule may prevent these children from inheriting because they could be born after the acceptable time period.

Conclusion

Legislatures in the United States have largely left the question of posthumous collection of gametes to the purview of the deceased’s relatives and doctors. With no effective records kept on how often the procedure occurs, we have yet to fully measure the scope of the issue. The few legislatures that have addressed the problem have instead focused on when the person who provided the sperm or eggs is recognized as a parent, and when the resulting child is recognized as an heir. The statutes and cases, however, vary widely and their enactment has been limited, at best. With medical science enabling these practices to continue to develop, our society must cohesively address the legal, moral, and ethical issues they raise. In the meantime, to avoid as many conflicts as possible, assisted reproductive technology attorneys, estate planners, hospitals, and cryobanks must stay current on the issues relating to posthumous reproduction.

Endnotes

1. Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002).

2. Devon D. Williams, Over My Dead Body: The Legal Nightmare and Medical Phenomenon of Posthumous Conception through Postmortem Sperm Retrieval, 34 Campbell L. Rev. 181 (2011).

3. Ethics Comm. of the Am. Soc’y for Reprod. Med., Posthumous Reproduction, 82 Fertility & Sterility S260 (Supp. 2004); Ethics Comm. of the Am. Soc’y for Reprod. Med., Posthumous Collection and Use of Reproductive Tissue: A Committee Opinion, 99 Fertility & Sterility 1842 (2013); see also Ethics Comm. of the Am. Soc’y for Reprod. Med., Fertility Preservation in Patients Undergoing Gonadotoxic Therapy or Gonadectomy: A Committee Opinion, 100 Fertility & Sterility 1214 (2013).

4. Charles P. Kindregan Jr., Genetically Related Children: Harvesting of Gametes from Deceased or Incompetent Persons, VII J. Health & Biomedical L. 147 (2011).

5. In re Christy, No. EQVO68545 (Iowa Dist. Ct. Sept. 14, 2007). No other reported decision equates postmortem gamete retrieval with organ donation.

6. David M. Greer et al., Case 21-210: A Request for Retrieval of Oocytes from a 36-Year-Old Woman with Anoxic Brain Injury, 363 New Eng. J. Med. 276 (2010); see also Jacqueline Clarke, Dying to Be Mommy: Using Intentional Parenthood as a Proxy for Consent in Posthumous Egg Retrieval Cases, 2012 Mich. St. L. Rev. 1331.

7. Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (effective Dec. 1, 2007) (Can.).

8. Human Fertilisation and Embryology Act, 1990, c. 37, sch. 3, para. 5 (U.K.); Chief Executive’s Letter CE(97)01, Human Fertilisation & Embryology Authority (Feb. 11, 1997), http://www.hfea.gov.uk/3247.html.

9. Parpalaix c. CECOS, Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Creteil, Aug. 1, 1984, Gaz. Pal. 1984, 2, 560 (Fr.).

10. In re H, AE [2012] SASC 146 (Austl.).

11. MAW v W. Sydney Area Health Serv. (2000) 49 NSWLR 231 (Austl.) (declining to permit removal of semen from a dying man); Re Gray [2001] 2 Qd R 35 (Austl.) (holding that the court lacked jurisdiction, there is no right in a dead body other than to ensure its burial, it is potentially a misdemeanor for any person to improperly interfere with or offer indignity to a dead body, and the Transplantation and Anatomy Act 1979 did not apply); Baker v State of Queensland [2003] QSC 2 (Austl.) (concluding that contract law cannot be used in place of property concepts); AB v Attorney-General (Vic) [2005] VSC 180 (Austl.) (finding that neither the Supreme Court’s jurisdiction nor the Human Tissue Act 1982 (Vic) allowed removal of the tissue).

12. Ministry of Justice, Guidelines of the Attorney General of the Government, No. 1.2202 (2003) (Isr.). These guidelines have also been applied for posthumous ova retrieval. Mikaela Conley, Israeli Court Allows Family to Harvest Dead Daughter’s Eggs, ABC News (Aug. 11, 2011), http://abcnews.go.com/Health/Israeli-family-permission-freeze-dead-daughters-eggs/story?id=14272156.

13. Ido Efrati, Israeli Court Decides Dead Man’s Sperm Can Be Used After All, Haaretz (June 16, 2014), http://www.haaretz.com/misc/iphone-article/.premium-1.599111.

14. Irit Rosenblum, Dead 11 Years, Soon to Be a Father, Times of Israel: Blogs (Nov. 26, 2013), http://blogs.timesofisrael.com/dead-for-11-years-and-soon-to-become-a-father/.

15. See Ala. Code § 26-17-707; Colo. Rev. Stat. § 19-4-106(8); N.M. Stat. Ann. § 40-11A-707; Tex. Fam. Code Ann. § 160.707; Utah Code Ann. § 78-45g-707.

16. Del. Code Ann. tit. 13, § 8-707; N.D. Cent. Code § 14-20-65; Wash. Rev. Code § 26.26.730; Wyo. Stat. Ann. § 14-2-907.

17. Cal. Prob. Code § 249.5(a); La. Rev. Stat. Ann. § 9:391.1(A).

18. 20 Cal. Rptr. 2d 275 (Ct. App. 1993).

19. Unif. Probate Code §§ 2-120 (Child Conceived by Assisted Reproduction Other Than Child Born to Gestational Carrier), 2-121 (Child Born to Gestational Carrier).

20. Colo. Rev. Stat. §§ 15-11-120 to -121; N.D. Cent. Code §§ 30.1-04-19 to -20.

21. Fla. Stat. § 742.17(4); see also N.Y. Est. Powers & Trusts Law § 5-3.2(b); Va. Code Ann. § 20-164.

22. The previously discussed statutes in California, Louisiana, New York, and Virginia contain this limitation.

23. See, e.g., Burns v. Astrue, 289 P.3d 551 (Utah 2012). Here, the court had to decide whether a signed agreement to donate preserved sperm to the donor’s wife in the event of his death was sufficient to constitute “consent in a record” to being the “parent” of a child conceived by artificial means after the donor’s death under Utah intestacy law. See Utah Code Ann. § 78B-15-707.

24. See generally Philip G. Peters Jr., The Ambiguous Meaning of Human Conception, 40 U.C. Davis L. Rev. 199 (2006).

25. Lucas v. Hamm, 364 P.2d 685 (Cal. 1961).