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 The recent birth of a child conceived with sperm withdrawn from a dead man has attracted considerable attention in both the scientific and lay press.^1,2 The increasing capabilities of modern reproductive technology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.