Expanding the use of posthumous assisted reproduction technique: Should the deceased’s parents be allowed to use his sperm?

Abstract

The posthumous retrieval and use of gametes is socially, ethically, and legally controversial. In the countries that do not prohibit the practice, posthumous assisted reproduction is usually permitted only at the request of the surviving spouse and only when the deceased left written consent. This paper presents the recommendations of an ethics committee established by the Israeli Fertility Association. In its discussions, the committee addressed the ethical considerations of posthumous use of sperm—even in the absence of written consent from the deceased—at the request of either the spouse or the deceased’s parents who wish to become the offspring’s parents or grandparents. It is concluded that under certain conditions, a request by the deceased’s parents to posthumously use the deceased’s sperm is justified and should be granted.

Keywords

Posthumous sperm retrieval postmortem sperm gamete retrieval reproduction ethics

Introduction

The development of gamete retrieval and cryopreservation for future use has enabled posthumous assisted reproduction (PAR). This procedure is usually applied in one of the followings scenarios: (1) the deceased provides gametes before his death (e.g. before chemotherapy or radiotherapy) and (2) the gametes are retrieved posthumously.

The storing of frozen sperm was originally developed for men undergoing surgery or other treatments that could harm their fertility. Rothman¹ described a method for obtaining viable sperm in a postmortem state. The advent of this technique, in the form of micromanipulation to perform intracytoplasmic sperm injection (which requires fewer sperm to achieve a pregnancy), has resulted in increased interest in postmortem sperm retrieval and the practice has been incorporated into clinical practice.

The posthumous use of sperm is sought in the majority of cases by the deceased’s spouse (married or in a significant relationship). However, there are cases in which the deceased’s parents express an interest in using the sperm, with the goal of raising the child either as parents or as grandparents. This raises social, bioethical, and legal issues that need to be considered by clinicians, policymakers, and stakeholders. In contrast to some countries that allow only the deceased’s spouse to take advantage of PAR, it is the opinion of the Israeli Fertility Association’s (IFA) Ethics Committee, which will be described below, that—under specific circumstances—the use of the deceased’s gametes by his parents is justified.^a

The medical background

Very limited information is provided in the literature regarding the outcome of pregnancies derived from the use of postmortem sperm.^3,4 A variety of medical approaches, techniques, and timings of sperm retrieval are suggested in the literature. However, due to the scarcity of cases, no general recommendations are available.^5,6

Shefi et al.⁵ concluded that viable sperm is obtainable up to 36 h after death regardless of its cause. There are various approaches available to obtain sperm from a cadaver, including orchiectomy, epididymal sperm aspiration, testicular sperm retrieval, and removing the epididymis. However, there is no standard approach.⁷ It is generally accepted that maximizing the amount of sperm obtained will optimize the assisted reproductive technologies (ARTs) outcome.

Other problems in postmortem sperm retrieval arise because sperm is usually collected in cases where the man’s fertility is unknown, so potential testicular samples with very few spermatozoa might be collected, and/or the sperm donor may carry genetic or infectious diseases that have not been tested for due to the circumstances. Moreover, sperm retrieval that is carried out a long time after death is connected to higher DNA damage and this may reduce fertilization and may affect the ART results.⁸

PAR policies in Europe and the US

The practice of PAR and posthumous retrieval of gametes is influenced by cultural, social, ethical, and religious values, thus resulting in a wide variation in policy.^b

The European Society of Human Reproduction and Embryology (ESHRE)¹⁸ has addressed the issue and discussed reproductive autonomy and the welfare of the future child. In the context of respecting reproductive autonomy, the ESHRE’s view is that although the presence of cryostored gametes or embryos indicates that a parental project was begun, it does not mean that the deceased wished the continuation of the project posthumously. Therefore, the ESRHE stresses the need to raise the issue of posthumous use of gametes or embryos when patients undergo a process of informed consent prior to any kind of ART. The rationale of the ESRHE is that PAR is justified only within an existing parental project and only when the deceased left written consent. Therefore, postmortem retrieval of gametes or the use of frozen gametes or embryos is not allowed in the absence of explicit instructions by the deceased prior to his/her death. In addition, only the deceased’s spouse or partner can use the gametes or embryos, and s/he is not allowed to donate them to a third party (such as the deceased’s parents). However, some members of the ESHRE Task Force that drafted the guidelines argued that the use of PAR by a third party is justifiable if prior consent was given.

The discussion of the Ethics Committee of the American Society of Reproductive Medicine (ASRM) on this subject is based on the assumption that the essence of parenthood is not mere genetic continuity but includes gestation and participation in childrearing.¹⁹ Since the deceased will not take part in these aspects of parenthood, it cannot be argued that the right to parenthood is compromised by any prohibition on the posthumous use of gametes or embryos. According to the ASRM, the only relevant aspect of the right to parenthood after death is genetic continuity, which ought to be respected if the deceased explicitly expressed his wish that his sperm be used after death.

Therefore, according to the ASRM guidelines, before allowing posthumous reproduction, it is important to verify that the deceased specifically expressed a wish for continuity and stated that he is not opposed to the use of his/her gametes or embryos by his spouse. Moreover, the deceased’s desire for continuity can be fulfilled only in cases where the surviving spouse shares that desire. According to the ASRM, the spouse’s independent and autonomous wish in this context must be respected.

The ASRM addresses the difficulty in cases where gametes were not deposited prior to death and their retrieval posthumously might be objected to on the grounds of violation of bodily integrity. In these cases, it is far more complicated to determine the deceased’s wishes if no written or oral consent was given prior to death. Due to the spouse’s apparent conflict of interest in the matter, his/her testimony should be assessed with caution. Therefore, the ASRM concludes that physicians are not duty bound to perform posthumous sperm retrieval.

As for the use of a deceased’s gametes or embryos by his parents, the ASRM states that the parents’ desire to become grandparents does not give them the right to control the fate of the deceased’s gametes since the parents cannot argue that they are participants in the couple’s reproductive project. Therefore, the ASRM argues that parents have no claim regarding the deceased’s gametes and conclude that requests made by the deceased’s parents should be rejected.

In sum, professional ethical guidelines in Europe and the US impose limitations on the posthumous use of sperm. They require an explicit wish by the deceased¹⁸ or an implicit wish if a parental project was already begun.¹⁹ According to both the ESHRE and the ASRM, the permission to use the embryos or the gametes can be given only by the surviving spouse, although the ESHRE report mentions a minority view which allows for the use of the gametes or embryos by a third party (including the deceased’s parents) if the deceased gave his explicit consent.

The Israeli legal position

The legal position in Israel is complex and there is as yet no specific legislation in this area.^c The issue has been considered by the Attorney General (A-G) who published specific guidelines on the subject in 2003.²⁰ They are binding for clinicians who work in the public health care system. According to these guidelines, only the deceased’s spouse is allowed to use the deceased’s frozen sperm or to request its retrieval after death. However, the courts are under no obligation to follow these guidelines, and in some cases judges in lower courts have deviated from them. In most cases, the courts were willing to approve parents’ requests to retrieve sperm shortly after death and decided to delay their ruling on the use of the sperm by the parents when time was not a pressing factor. The Israeli Supreme Court has twice dealt with parents’ requests to use their deceased son’s sperm.^21,22 A summary of the various legal positions is presented in Table 1.

Table 1.

Legal position and IFA’s Ethics Committee’s recommendations on PAR.

User of sperm by:	Objective	Spouse Y/N	Condition	Legal position	Ethics Committee recommendations
Spouse	Wish to become a mother		The deceased did not express an explicit refusal to the use of his sperm	Permitted even without the deceased’s written consent²³	Permitted even without the deceased’s written consent
Parents of the deceased	Wish to become parents			Prohibited by the Supreme Court²² and the A-G guidelines	Prohibited
	Wish to become grandparents	No spouse	Deceased’s wish is known	A-G guidelines are unclear. Lower courts permit.²⁴ Supreme Court has no ruling on the matter	Permitted by way of a prospective mother who wishes to use identified sperm
		No spouse	The deceased did not leave explicit instructions	A-G guidelines prohibit. Lower courts permit.25Supreme Court has made no ruling on the matter, though some judges in the Supreme Court did not rule out this option	Permitted if the parents present proof of the deceased’s implicit wish
		Had a spouse who is not interested in using the sperm	Spouse opposes the parents’ wish to use the sperm	Supreme Court prohibits²¹	Some committee members were opposed since the spouse should have a right of veto. Others were in favor and would deny the spouse’s right of veto
		Had a spouse who is not interested in using the sperm	Spouse does not oppose parents’ wish to use the sperm	A-G guidelines do not permit. Lower courts have approved such requests.²⁶ Supreme Court has no direct ruling on the matter	Some committee members were opposed, claiming that only the spouse can initiate a parental project. Others were in favor when the deceased had expressed a wish that his sperm be used posthumously with a prospective mother

A-G: Attorney General; IFA: Israeli Fertility Association; PAR: posthumous assisted reproduction.

The IFA’s Ethics Committee’s position and recommendations

The ethics committee of the IFA conducted a thorough process of deliberation and discussion on the posthumous retrieval and use of sperm with the goal of providing guidelines for clinicians as well as to influence public policy, which currently lacks clarity on this issue. The committee attempted to address the various scenarios of posthumous use of sperm. Admittedly, the IFA’s recommendations have no formal legal status. They do, however, provide professional ethical guidance to clinicians in their relationships with patients and their relatives. The recommendations are also an attempt to influence policymaking. Ultimately, clinicians who work in the public health care system will have no choice but to follow the A-G’s guidelines if they differ from the IFA’s recommendations.

In this article, we have chosen to present only the ethical deliberation and argumentation on this issue rather than its cultural and social aspects, in the hope that the discussion will therefore be of value to clinicians and policymakers in a broad range of countries.

In formulating its recommendations, the committee focused on two variables: first, whether the deceased’s sperm was obtained before or after his death and whether he expressed an explicit wish regarding its use after his death; and second, the source of the request: (1) the spouse, (2) the deceased’s parents who wish to raise the offspring as their child, or (3) the deceased’s parents who wish to raise the offspring as their grandchild.

Guiding principles

Three guiding principles provided the framework for the ethics committee’s discussion: first, a liberal society should respect the freedom of the individual, including the freedom to reproduce,^d and should limit its intervention to circumstances in which mental competence is a concern or when conflicting values must be balanced.

Second, since the deceased has ceased to exist, it is not possible to attribute interests or rights to him. Nonetheless, the committee members held that an individual’s explicit wishes, as expressed during his lifetime, should not be ignored. Following Kant,²⁸ the committee reasoned that the obligation to respect the wishes of the deceased is not an obligation toward the deceased but rather to the individual while he was alive. From the perspective of those who are living—even though an individual has no way of knowing whether and in what manner his wishes will be fulfilled after his death—there is clear benefit in knowing, while an individual is still alive, that after death his wishes will be respected.

Third, since the potential offspring is only a hypothetical entity, it has no rights.^e Nevertheless and based on an impersonal position, the committee’s view is that society has an obligation to protect the fundamental interests of future children while taking into consideration the rights and interests of living individuals involved in the matter.^f In what follows, we describe the committee’s recommendations in greater detail.

The deceased’s explicit or implicit wishes

Contrary to the ESHRE guidelines, the IFA position is that postmortem retrieval of sperm should be allowed for use by the deceased’s spouse and/or parents even if the deceased did not leave explicit instructions and as long as he did not express his objection to PAR. In our view, this procedure does not violate the deceased’s dignity any more than organ procurement. When the deceased expressed an explicit wish that his sperm be used posthumously and provided his wish accords with those of the living and the protection of their rights, the ethics committee is of the view that it is desirable to respect his wish. However, in many cases, the deceased has not expressed an explicit wish. Contrary to the ESHRE position, the committee members hold the view that under certain circumstances (to be described below), the use of the sperm should be allowed, where there is evidence of the deceased’s implied wish (such as implicit statements or indications from the deceased’s behavior while he was alive).

The identity of the individual making the request

The deceased’s spouse

When the deceased explicitly stated that his spouse can use his sperm and when she indeed wishes to do so, the committee felt that her wish should be granted, but only following an appropriate mourning period of a year in order to ensure that her choice is made autonomously and after serious consideration.

When the deceased did not leave explicit instructions regarding the use of his sperm and the spouse is interested in using it, the committee’s position accords with the current legal position in Israel and the ASRM position, namely that his implied wish should be clarified based on the spouse’s statement. In this context, the committee members did not ignore the fact that the spouse has a dual role (expressing her personal wishes and providing information about the deceased’s wishes). Therefore, in view of the potential conflict of interests, and in order to reduce the uncertainty regarding the wishes of the deceased, the committee recommends modifying the consent form for the depositing of sperm, such that the patient will be required to seriously consider his wishes and express them as clearly and unambiguously as possible. From an ethical perspective, the committee members are of the view that as long as it is known that there was no explicit objection by the deceased to the posthumous use of his sperm, the spouse’s reproductive autonomy should be respected.

The deceased’s parents who wish to become the offspring’s parents

This case was discussed by the Israeli Supreme Court in the appeal of Shachar versus the State of Israel.²² In that case, it was argued that one can assume that any individual who dies without a spouse or partner would wish to have a child after his death. In addition, the deceased’s parents argued that their right to parenthood should also be respected. The Supreme Court decided to reject the parents’ request on the grounds that the deceased’s spouse has the sole and ultimate right to decide whether the sperm can be used to fertilize her eggs. The ethics committee concurred with this decision for the following reasons:

First, there is no clear and unambiguous evidence that every person would wish to have a child posthumously if he died childless. Although several studies suggest that the majority of men approve of postmortem use of sperm, 14–26% are opposed.^32,33 Furthermore, among religious groups the percentage of those opposed is even higher.³³

Second, notwithstanding the pain and grief of the parents who have lost their son, they have already fulfilled their right to parenthood (whether it was biological or social).

Third, to grant the parents’ wish requires the assistance of two women—an egg donor and a surrogate mother—who will not be raising the child. These women are willing, for their own reasons, to go through various medical procedures that involve medical risks, physical pain, and mental distress. The use of women’s bodies not for their own benefit could nonetheless be justified if two conditions are met: First, they express their autonomous consent and were not subject to any form of exploitation or coercion. Second, the use of their bodies will achieve a worthy objective. Israel, for example, has determined that the goal of fulfilling the right to parenthood for couples without children is a worthy objective that justifies the use of egg donation and surrogacy.^g In the case of the deceased’s parents, the committee takes the view that this latter condition is not met, since the deceased’s parents have already realized their right to parenthood. Furthermore, unlike the usual case of surrogacy, in which clinicians can medically assess the quality of the sperm and the chances of successful fertilization with some accuracy, in posthumous sperm retrieval this assessment cannot be made. This adds to the difficulty in justifying the use of a woman’s body for the benefit of others.

Fourth, in view of the fact that the offspring is only a hypothetical entity, an impersonal examination of the issue should be carried based on the fundamental interests of children. Research on children born from gamete donation shows that many of them wish to know the identity of their biological parents.^36–38 Thus, the committee concluded that the creation of filius nullius (a child without biological parents) is not a desirable situation from the outset and constitutes harm to the fundamental interests of children.

The deceased’s parents who wish to become grandparents

In this context, the parents’ request can be made under four different scenarios. In the first two, the deceased had no spouse when he died. In the first, the deceased explicitly expressed a wish that his sperm be used posthumously, while in the second, his wish is unknown. In this scenario, the parents base their request to use his sperm on the grounds of his implied wish and are able to present evidence of his wish for continuity after his death.

The committee takes the view that in the first scenario the deceased’s wish can be respected and that his parents can donate his sperm to a sperm bank for joint reproduction with a prospective mother. The committee believes that in certain circumstances, such a scenario has advantages over anonymous sperm donation, which is the only legal option available for women who wish to obtain donated sperm in some countries, including Israel. For example, the future offspring will know the identity of his biological father and will have the benefit of a relationship with the deceased’s family members, if they and his mother desire it.

In the second scenario, the committee held that if the parents can convince the court of the deceased’s implied wish to have a child posthumously, the use of his sperm should be allowed for reproduction with a prospective mother, based on the same arguments presented above. However, if the deceased’s parents cannot convince the court regarding the deceased’s wish, the request should be rejected.

The committee reached its conclusion based on the following arguments: first, according to the second guiding principle stated above, society’s obligations toward the deceased derive from its commitment to respect the wishes of an individual when he is alive. It follows that the use of a deceased’s body should not be allowed in a way that he might have opposed, but failed to state this explicitly while alive. Respecting the deceased’s wish, despite its lack of significance after death, has some positive effect on an individual’s welfare while alive.

Second, the committee members takes the view that the depositing of the deceased’s sperm in a sperm bank at the request of his parents with the aim of finding a prospective mother, in the absence of any proof that the deceased himself would have approved, creates a practice of “child production” as a commodity. The committee felt that the mere availability of gametes is not a sufficient condition to justify the creation of children.

In the third and fourth scenarios, the deceased had a spouse but did not leave written instructions and his parents base their request on his implied wish. In the third scenario, the spouse is not interested in using the deceased’s sperm and opposes the parents’ wish to do so. In the fourth, the spouse is not interested in using the sperm but has no objection to the parents’ wish to do so. In considering the parents’ request, the committee takes the view that there is no right to grandparenthood, since the rights of parents do not include the right to use the gametes of their children. Nonetheless, even in the absence of a legitimate claim right, the committee members considered arguments for and against granting the parents’ request, including the rights and interests of the spouse. The Committee members were split over the status of the deceased’s spouse in this context and whether she has the right of veto.

Some committee members expressed the view that the deceased’s parents should not be allowed to make use of the sperm in the third and fourth scenarios. Similar to the positions of the ESHRE and the ASRM, they argued that bringing a child into the world is a result of intimate relations between the spouses and is based on their mutual wishes. Therefore, in view of the spouse’s decision not to use the sperm, and in the absence of the explicit wishes of the deceased, the deceased’s parents should not be allowed to use his sperm.

Other committee members held the view that the spouse has a right of veto only when she and the deceased have common children. In these circumstances, she can present a reasonable demand that additional children not be born from his sperm in order to maintain the integrity and distinct identity of her family, without the introduction of half-siblings from another woman. However, in the absence of common children, they felt that the spouse should not have the right of veto.

The general rationale to allow the parents to use the sperm stated that if a specific action can benefit one person and not harm another, then the action is morally permissible. More specifically, five points were presented: First, the spouse is not harmed since her autonomous wish not to become pregnant from the deceased’s sperm is maintained. Second, the implied wish of the deceased for continuity can be respected and realized through a reproductive project with a prospective mother. Third, it broadens the opportunity range of the prospective mother who might wish to be impregnated with identified sperm. Fourth, it becomes possible to respect the wish of the deceased’s parents and to relieve their grief somewhat. Fifth, the child will be raised by one biological parent and can choose to have a relationship with the deceased’s relatives.

As stated in the beginning of this section, the IFA’s recommendations have no formal legal status. They were formulated in order to provide professional ethical guidance to clinicians and to influence the legislature and the courts by presenting the various relevant ethical considerations. Since the committee members were split in their positions on the third and fourth scenarios and could not even reach a majority view, it was decided to present the various considerations. It was thought that this presentation could be beneficial for policy makers and judges who deal with PAR.

Summary

Contrary to the guidelines issued by the ASRM and the ESHRE, which allow the use of a deceased’s sperm conditional on there being explicit instructions from the deceased and agreement by the spouse, the IFA’s guidelines allow the use of the deceased’s sperm even when his wish is only implied and when he did not leave behind a spouse. Furthermore, unlike the guidelines issued by the ASRM and the ESHRE, the IFA’s guidelines allow the deceased’s parents to use his sperm and to produce a grandchild by way of an arrangement with a prospective single mother.

Although cultural aspects unique to Israel (such as the culture of bereavement and Israel’s pro-natalist position^h) played their part in the committee considerations, the ethical arguments presented above can stand in their own right regardless of any particular social and cultural background. It is hoped that these ethical arguments will contribute to the discussion of posthumous artificial reproduction and particularly to the discourse surrounding the interests of the deceased’s parents.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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