What drives the partners of men who have died to try and have their babies? Jenny Morber delves into the legally and ethically fraught world of post-mortem sperm donation.
There is a man waiting for the doctor and his time is running out.
It is late evening, just over an hour after the doctor first groped for his ringing phone. “Can you help us?” the woman on the other end had asked, her voice breaking.
Now, preparing for the procedure, the doctor is alert. He moves quickly. He scrubs his hands and arms with soap and snaps on his gloves. His assistant clinks down sterilised instruments and fluid-filled containers onto a stainless steel table. The walls are cinder block, painted a pale yellow. The air is cool and heavy with the scent of disinfectant.
The doctor sits over the patient ready to perform the surgery. He pauses, fixing a picture in his mind, then slices through the skin until he can see the organ’s outer layers. It glistens, milky white and veiny. The doctor cuts off a spongy piece and drops it into a vial. His assistant whisks it away.
Having verified that the procedure was a success, the doctor carefully sutures the patient back up. The patient remains still. The room is quiet. There is no beeping monitor or IV drip. No one checks the patient’s vitals. He has been given no pain relief.
The patient is dead.
He has, in fact, been so for a while – over 30 hours, according to his chart – but some of him survives. What the doctor has extracted is a liquid that can create life. An incredible substance that is neither person nor property; simultaneously so abundant yet valuable that we still haven’t quite figured out how to treat it. It is the dead man’s sperm.
Ana and Michael Clark had only been married a year when Mike got orders to ship out overseas for his fifth deployment. Mike, 25, was a sergeant in the Marine Corps. He joined at 18 and in his seven years had already earned several ribbons and medals, including a Purple Heart. The couple had decided to connect with a trip before Mike’s deployment: a motorcycle ride along a California highway.
It would be their last together. On the way back onto the highway after lunch, Mike lost control of their bike and they flew off a cliff. Ana survived the accident. Mike did not.
Recovering from spine and shoulder fractures in the hospital, Ana was grieving for not only her husband, but their future children. “We had talked about it maybe a week or two before he passed because he was going on the deployment, and he said, ‘Yeah, you know it’s too bad that we can’t go to a sperm bank now and freeze sperm… I have way too much to do at work.’”
I looked online and called the number for the sperm bank. Then I had to hire a hearse
Seeing Ana distraught over her lost chance at children with her husband, a friend suggested that she consider retrieving some of Mike’s sperm. You know, her friend said, sperm live a lot longer than you think. So Ana googled it. “I looked online and called the number for the sperm bank,” she says. It took a few calls before she found a doctor willing to perform a sperm extraction on a deceased patient. “And then I had to hire a hearse…”
The hearse took Mike’s body the 100 or so miles from the hospital in Riverside to San Diego for the procedure, and back again.
Over the phone, Ana comes off as independent and level-headed. Articles in the media sometimes hint that women interested in creating what is sometimes known as a posthumously conceived child are a little off, still clinging to the loved one they can never get back, not quite in touch with reality. Ana Clark’s feet seem firmly planted.
“It gave me a sense of hope that he wasn’t going to be gone for ever, that I was going to be able to have a piece of him that was still alive. Just for me. My very own little piece of my Mike.” More than that, Ana wanted Mike to have a legacy. “He was a very, very good man. He was a very good Marine, and to know that I would be able to carry a form of legacy, someone that was going to continue the path as the hero he was, I think that’s what really motivated me…”
In the late 1970s, Los Angeles urologist Cappy Rothman performed the first post-mortem sperm retrieval.
Before this, Rothman had been extracting sperm from men living with infertility, work that gave him a detailed knowledge of male reproductive anatomy, experience in sperm extraction and preservation, and contacts who knew he was interested in assisting men with reproductive issues. He had quickly become known in Los Angeles.
“Within six weeks of practice, I was booked up for six months,” he recalls. Then, when a prominent politician’s son was left brain-dead after a car accident, “I got a call from the chief resident of neurosurgery at UCLA and he said, ‘I have a strange request. [This politician] would like to have his son’s sperm preserved. Could you do it?’”
Rothman came up with three options: administer a drug that would make the entire body convulse, hopefully inducing ejaculation; remove the man’s reproductive organs and go looking for sperm; or (because the brain-dead man still had some bodily functions) manual stimulation. “I remember there was a pause at the end of the phone… [the neurosurgeon] says, ‘Hey doc, I’ve been asked to do a lot of things as chief resident of neurosurgery but if you think I’m going to jerk off a dead man you’re crazy.’”
They decided on the second option. “It almost felt like Michelangelo,” says Rothman, “being alone, in an OR, with the male anatomy. It was an education.” He published a paper on this first case in 1980.
It almost felt like Michelangelo
The first live birth resulting from a post-mortem extraction wasn’t until 1999. Gaby Vernoff gave birth to baby Brandalynn from sperm extracted by Rothman 30 hours after her husband died. According to Gaby, the pregnancy took with the last vial of sperm. In the high-profile 2009 legal case Vernoff v. Astrue, Gaby went to court seeking social security benefits for her posthumously conceived child. The courts found that Brandalynn was not entitled to survivor’s benefits because she was not her father’s dependant at the time of his death, as required by California law.
In Arizona, though, courts had decided in 2004 that children conceived after their father’s death were entitled to benefits. There, unlike California, biological parenthood is sufficient for legal parenthood.
Today, Rothman is co-founder and medical director of California Cryobank, the largest sperm bank in the US. He estimates that the practice has performed close to 200 post-mortem sperm extractions. Most of these are recent, as the procedure has become more common. Their records show just three extractions in the 1980s and 15 in the 1990s. But from 2000 to 2014, they performed 130: an average of just under nine a year.
And Rothman’s is by no means the only clinic that offers this service. Recent statistics are scarce, but surveys of US fertility centres in 1997 and 2002 found increasing numbers of requests for post-mortem sperm retrieval, although from a very low base. According to Jason Hans, a professor in the Department of Family Sciences at the University of Kentucky, “the increasing prevalence of hospital and clinic protocols, legal cases, scientific and popular press articles also suggests an increase in requests for the procedure but, admittedly, may also represent increasing awareness rather than an increasing number of requests”.
Whatever the specifics, post-mortem sperm retrieval is very much a thing.
Our bodies, it seems, die not all at once, but in parts. Early scientific literature advises doctors to extract and freeze a sperm sample within 24–36 hours of death but case studies show that under the right conditions, viable sperm can survive well beyond this deadline. Rothman tells of a man who died kayaking in cold water whose sperm were in good shape a full two days later. And in April 2015, doctors in Australia announced a “happy, healthy baby” born from sperm removed 48 hours after the death of the father.
The sperm don’t have to be zippy and perfect, just alive. Though swimmers freeze and thaw much better, sluggish sperm can still create a pregnancy. All it takes is a single sperm injected into an egg.
© Kyle Bean and Mitch Payne
But first someone must retrieve it. To understand the procedure, it is useful know a little about the male reproductive system. However you know them – balls, nads, nuts, marbles, cherries, cojones – the testes are the spherical organs that hang down behind the penis. Connected to each testis, cupping it from above, is the epididymis, the tube in which sperm mature and are transported from the testes to the vas deferens. The vas deferens carries mature sperm to the urethra, which runs down the middle of the penis to the outside world.
There are several main ways that sperm are harvested, including needle extraction. As the name suggests, this method involves inserting a needle into the testis and drawing out some sperm. It’s often used in live patients but, because minimising invasiveness does not matter the same in dead people, doctors tend to use other methods post-mortem.
One of these approaches is to extract the testis or epididymis surgically. As the epididymis is where sperm go to mature, this tissue is a popular target. The doctor surgically removes the epididymis and milks it or otherwise separates the sperm from the tissue. Alternatively, the epididymis or a piece of testicular tissue can be frozen whole.
As the sperm in the vas deferens are fully mature, it is also possible to extract them from there. The surgeon may make a slit in this long, flexible tube and draw out fluid with a needle (aspiration) or flush the tube with a solution (irrigation). Mature sperm are better able to move, find an egg and penetrate it to complete fertilisation.
This technique is still widely used for bulls, ferrets, leopards, elephants and hippopotamuses
A fourth option is rectal probe ejaculation, also known as electroejaculation. The doctor inserts a conductive probe into the man’s anus until it is next to the prostate. A jolt of electricity causes a muscle contraction that stimulates ejaculation of sperm through the usual channels.
Interestingly, this technique was developed for and is still widely used in animal husbandry (for bulls, ferrets, leopards, elephants and hippopotamuses, among others). Because it does not require intact reflexes, it is also used for men who have spinal injuries.
But just because we know how to extract sperm after death, there is no assurance that someone will be given access to the procedure should they request it. Martin Bastuba, founder and medical director of Male Fertility & Sexual Medicine Specialists in San Diego, is the doctor who retrieved Mike Clark’s sperm after his motorcycle accident. “There are no specific rules,” Bastuba says. “Most of the laws on the books were written before this technology really existed.”
The US legal position is a tangle of confusing and sometimes conflicting regulations. The laws that govern tissue and organ donation are federal (the Uniform Anatomical Gift Act and the National Organ Transplant Act), but they don’t necessarily apply to sperm, classed as renewable tissue. Arthur Caplan, head of bioethics at the New York University Langone Medical Center, says that federal law “should be emended to include sperm, eggs, uterus, ovaries and testes”. Meanwhile, artificial reproduction is regulated by individual states.
If a man has made no prior directives, such as enrolling as an organ donor, the next of kin can decide when to stop life support, whether to donate a man’s organs, how his body will be used or disposed of, and his funeral rites. But his sperm are often treated differently.
Sperm, it is said, are special. Several recent court rulings have given sperm a legal status higher than that of blood, bone marrow or organs. While those substances and body parts may be used to save life, sperm – like eggs – are often singled out for their potential to create life. In line with this view are positions such as that of the American Society for Reproductive Medicine, which argued 2013 that, “in the absence of a written directive, it is reasonable to conclude that physicians are not obligated to comply with either request [for sperm extraction or use of extracted sperm] from a surviving spouse or partner”.
Other opinions and legal rulings vary, though. In 2006, a judge who was interpreting organ donation policy ruled that organs, sperm included, can be gifted by a man’s parents after his death, provided the man didn’t previously refuse to make such a gift.
Because we still can’t decide on what sperm are or are not, policies on post-mortem sperm extraction differ between hospitals, and are spotty and inconsistent. Many hospitals have no policy at all. In one review published in 2013 in the journal Fertility and Sterility, biomedical ethicists contacted 40 US hospitals about their post-mortem sperm collection protocols. Only six produced complete protocols, and 24 of them (60 per cent) reported that either they either had no protocol or were unaware of one. This lack of policy may be because post-mortem sperm requests are rare. Unfortunately, when a request is made, the countdown has already begun and the hospital needs to be able to decide quickly.
This variability means that two hospitals across the street from each other might make opposite decisions. The 2013 Fertility and Sterility review concludes: “Many institutions do not yet have protocols in place, and those that are in place differ in important ways, including the standard of evidence regarding consent, wait time mandates before use of the sperm, method of sperm retrieval, and logistics of sperm storage and payment for the procedure.”
Doctors seeking direction may find help in published guidelines, a kind of urology “pirate code”. The guidelines from the urology department of Cornell University have been adopted by New York Hospital and others formally and informally across the US. The guidelines include that the person requesting must be the wife of the deceased, that the couple must have been committed to having children together, and that the widow must wait at least a year to gain access to the extracted sperm.
The American Society for Reproductive Medicine’s position is that post-mortem sperm requests should be granted only to surviving spouses or life partners, and that there must be a grief period prior to the sperm’s use. Notably, it counsels that medical centres “are not obligated to participate in such activities, but in any case should develop written policies”.
If a doctor or hospital does not feel comfortable performing the procedure, often they can release the body to someone else. Bastuba has harvested sperm in the intensive care unit of a hospital, in a morgue, in a medical examiner’s office, and even in a funeral home. But there has to be enough time so that the sperm will still be viable. Every decision made along the way must comply with individual hospital policy or the decision of its medical ethics board.
What about other countries? Some have laws in place. Some don’t. Some are permissive. Some aren’t. It’s a global mess.
France, Germany, Sweden and Canada are among the countries that prohibit posthumous sperm retrieval. In the United Kingdom, it is not allowed unless the man has given prior written consent. In the mid-1990s, the case of Diane Blood brought the issue into the public eye there. Diane and her husband Stephen had already begun trying for a family when Stephen died suddenly from meningitis. At first the courts denied Diane’s request to have children using Stephen’s sperm, saying its collection had been illegal. But after appeal, she won the right to send the sperm outside the UK so she could undergo insemination in a more permissive country.
Diane eventually gave birth to two boys with her husband’s sperm. But the UK government refused to recognise Stephen as the boys’ father, making them fatherless in the eyes of the law. Following efforts from Diane, in 2003 the government acknowledged that it had denied the Blood family basic human rights by preventing Diane from naming Stephen on the boys’ birth certificates. Diane has since published a book about her experience and continues a career in media. She writes in an email that “time has moved on. Now people don’t even understand what all the fuss was about.”
Women continue to push against UK prohibitions. Beth Warren recently won a legal battle to prevent her husband’s sperm from being destroyed following his death. He had banked sperm before beginning cancer treatment and later died from a brain tumour. Regulations had stipulated that the sperm could not be stored beyond ten years without renewed consent.
Some countries have laws. Some don’t. It’s a global mess
Removing sperm without the donor’s prior written consent is forbidden in the Netherlands, even though proxies are allowed to make decisions relating to issues like organ donation and tissue collection. Doctors clearly struggle with these restrictions. In one case, of a man who was due to be taken off life support, a team of doctors eventually denied a request to retrieve sperm, in line with regulations. In their paper they reflect, almost wistfully, that they could have instead sent him to neighbouring Belgium before his life support was withdrawn, because sperm retrieval is not prohibited there.
There is little literature on attitudes in Asia, but what is available suggests restrictive policies. According to Asian Bioethics Review and various press reports, in 2005 a Taiwanese military officer’s fiancée requested his sperm after he was killed by a tank that he was guiding onto a truck. The Taiwanese Department of Health first denied her request for sperm retrieval but then acquiesced under public pressure – though she never got access to it. Later, the government enacted legislation that prevents even married couples who are taking steps to undergo artificial insemination from continuing to do so after the husband’s death.
In Queensland, Australia, a woman was denied the right to harvest and freeze her husband’s sperm after his unexpected death, although they were planning to start a family. She later learned that her husband may have donated sperm when he was a student. A paper written on the case by an ethicist argues why, in principle, the woman should have been able to buy the sperm were it still available and viable.
Fertility doctors working in Western Australia describe the situation there in a 2014 paper for Human Reproduction: “There is an anomaly in the Law as one Act of Parliament says that we can collect sperm while another indicates that we cannot store such sperm,” they write, adding that they do not extract sperm posthumously without a Supreme Court Order. “We hope that one day this legal mess is sorted out,” they add.
In Israel, implied consent suffices – a deceased man need not have left a written document, but his widow just has to say that she believes he would give consent were he alive to do so. The government may even provide financial assistance: state health insurance will pay for as many IVF cycles as needed to produce two babies. As for the rights of posthumously created children, after a 2007 court battle any child produced is considered the deceased man’s legal heir.
Some fertility clinics in the US and elsewhere refuse to perform a post-mortem extraction if the person requesting is anyone other than the man’s wife or committed partner, unless he has left written instructions that state otherwise. These policies mirror the American Society for Reproductive Medicine’s position as well as the Cornell guidelines, which state that “the wife must be the individual to provide consent, not the deceased man’s family, as the wife is the individual with whom the deceased intended to procreate”.
Israel’s relatively permissive policies have recently created a rather tricky situation. The Times of Israel reported in 2015 that parents of a combat reservist killed in training have won the right to have his grandchild. But there was a twist. They won rights to the sperm despite the fact that their son’s widow refused to have his baby after his death and objects to his parents’ efforts to use the sperm themselves.
It’s worth remembering that for every case reported in the media – and there are many – there are likely many more people privately requesting the procedure and quietly succeeding, or not.
How do doctors and review boards weigh up decisions on post-mortem sperm extraction? “Like most issues in reproductive ethics or medicine in general, your big concerns are respecting the wishes and consent of the patient,” says Elizabeth Yuko, a bioethicist. “In this case, because the patient is deceased, this makes it a little trickier, but you also want to respect the welfare of the future child… In a lot of cases you are guessing what the wishes of the deceased are.”
There are other considerations too, including respecting the integrity of the dead man’s body, his right to procreate, his right not to procreate, family members’ rights to children or grandchildren, and alleviating the grief of surviving loved ones.
Where a man has made his wishes clear, the rights of the dead almost always supplant the rights of the living. Why? Law professor Glenn Cohen says this question is almost as old as philosophy itself. There are two main camps. “One says… if you can’t experience anything… how we can talk cogently about you being harmed?” he says. “The other camp says no, your life can go better or worse depending on what happens to you after you are dead.” For those in this camp, he says, it’s much more natural to think that banning posthumous retrieval is necessary to prevent harm to the dead.
In post-mortem sperm extraction, when we ask “What are sperm?” we’re also asking “What is life?” and “What is death?”
One place where living men are asked about the fate of their sperm after death is at a sperm bank. In 2012 a group of researchers explored this data. Of around 360 men with cancer or infertility diagnoses who banked sperm at a Texas sperm bank, almost 85 per cent consented to post-mortem use.
Aaron Sheffield, a youth pastor from Tallahassee, Florida, banked sperm prior to treatment for testicular cancer. He agrees that if his wife had wanted to use his sperm to create a child after his death, she should have been able to. “It goes back to just marriage vows,” he says. “She has as much right as I do to use it if she had wanted to… I don’t think ethically or morally that she would be in the wrong to use it.” Today the couple have two children, conceived naturally. They have destroyed Aaron’s banked sperm and he has had a vasectomy.
In a US telephone survey published in 2014, researchers asked people whether or not they would want their spouse to be able to use their sperm (or eggs) after their death to make a child. Seventy per cent of men aged 18–44 said yes. The researchers concluded that a presumption of consent would result in the dead men’s wishes being honoured three times more often than the current conservative standard.
When we ask “What are sperm?” we’re also asking “What is life?” and “What is death?”
Over the last four decades attitudes towards the issue seem to have changed. Rothman recalls how an interviewer once attacked him on TV: “She was just so biased. You could tell she hated what I did,” he says. “They thought it was awful… I think [later] they sent flowers and apologised…” Although unpleasant, such treatment reflects an unease shared by many – in academic as well as popular arenas.
A 1998 British Medical Journal article discussing the ethics of sperm retrieval said: “Doctors have… unwittingly sanctioned the use of dead men’s bodies for women’s gratification.” The article concluded that doctors “must find the courage to say no to assaulting vulnerable, brain dead patients”.
In 2003 a group of doctors published a paper with their findings that instituting the relatively restrictive Cornell guidelines “dramatically decreased the number of post-mortem sperm retrievals performed at our institution”. They wrote: “We consider this a prudential conservative approach, given the lack of societal consensus on the subject.” Another ethics study in 2002 concluded: “Even with consent, the welfare of the potential child must be considered.”
More recently, people’s thoughts around post-mortem sperm extraction seem to be opening up. In 2008, a survey in a southern state of the US found that “overall attitudes and… beliefs were primarily in favor of posthumous harvesting”. And in 2015, ethicists in Australia published a commentary supporting a presumption of consent on the part of the dead man. They argue that there are plenty of benefits to both the deceased and his partner, and that the welfare of the living widow and the future child should be the primary concern.
But what about the children? Some feel that posthumous sperm donation should be prohibited in part because it creates disadvantaged children who will never know their biological father. But many children never know their biological father, even if he is alive. “What I found hard to grasp,” says Diane Blood, “was that I could have the sperm of an anonymous donor, even one who was dead, but not my own husband.”
Julianne Zweifel, a clinical psychologist and an ethics committee member at the University of Wisconsin School of Medicine and Public Health, disagrees. “Adults are making a decision to bring a child into the world with, by definition, a deceased parent because of adult needs and not sufficient concern is being paid to what is the impact on the child,” she says.
According to Zweifel, research shows that people are not good at considering the welfare of those we do not yet know. Only once the child is a reality can we truly contemplate its welfare. “I don’t think that the adults who would pursue this are really in a psychological place where they can genuinely, really, truly envision the concerns for the child.”
Zweifel worries about the burdens placed on a child created through loss. “That child can end up being what some people would call a memorial candle to the deceased person... That child can feel that people are looking for traits of the deceased parent in them and they can feel beholden to do that.”
There is also the impossibility (rather than the mere unlikelihood) of ever knowing one’s father. “When you come into the world with a father who is dead, he is never going to be reachable for you,” says Zweifel. In her work with single mothers using sperm banks, she says that many choose identity-release donors so that their child can be in touch with the donor at a later time.
That said, in some countries, truly anonymous sperm donation can and does occur. And post-mortem sperm retrieval does not guarantee that the child will never have a father present, just that such a father will not have the usual genetic relationship. There have been cases in which children with genetic diseases or abnormalities seek but cannot find information about their sperm donor to help with treatments or future risks. A posthumously conceived child would at least have family history to look back on.
As for evidence, there is very little research on the possible psychological or health effects on a child conceived using sperm extracted posthumously. In 2015 an admittedly tiny study found that four children born from posthumously acquired sperm “have shown normal health and developmental outcomes”.
After everything – the illness or trauma that causes a man to die, the decisions around whether to try to get sperm or not, the processes and procedure involved if you do decide to – the surprising thing is, most relatives never even use the sperm.
Rothman and Bastuba view post-mortem sperm extraction mostly as an act of compassion for those who are grieving. Of the roughly 200 procedures they have performed, says Rothman, the extracted sperm have only been used twice. “What I’m finding is most of the time it’s done to [ease] the immediate grief of a family with a loss.”
Bastuba agrees: “Like so many things in life, it’s not the actual. It’s the perception. This longing to try to keep a piece of someone who was so important. That to me is the true value.” To his best recollection, no sperm from his post-mortem donors have produced a live child. In Israel, arguably one of the most permissive countries for posthumous reproduction, a 2011 article in Fertility and Sterility found that “none of the 21 post-mortem frozen tissue samples in our national sperm bank were requested for fertilization use during the past 8 years”.
Even those who are strongly focused on posthumous reproduction may eventually move forward without it. A Texan mother, Missy Evans, gained media attention in 2009 for her attempts to use her deceased son Nikolas’s sperm to create a child. “The reason that I felt so strongly about it,” Missy says, “is because of what my son’s desires were for his life.” She won permission to harvest Nikolas’s sperm, and sought and found willing surrogates in several countries.
But the process has been a struggle. Half the sperm vials have been used up and none of the embryos created have been viable. “It is so expensive and it is so time-consuming and it is so heartbreaking,” Missy says. She is not sure if she will continue.
“I don’t want children with anyone else,” she says, “I only want them with my husband.”
In the meantime Missy has become a grandmother through her surviving son. “I spent so much time wreaking havoc with my family that these last few years we have spent just enjoying the granddaughter that I actually have,” she says. “My son was super afraid that I had concentrated my efforts on having my other son’s kid or kids that I wasn’t going to bask in the joy of the child that was here and so I listened to him.” Even so, she says that she has no regrets about the decision she made.
So what can you do to make sure that what does or doesn’t happen after your death is what you want? One practical thing is to include your future reproductive wishes in your living will. Especially in countries like the US, where the legal situation can be unclear, we really need to be having these conversations and putting our wishes down on paper.
Sadly this is not yet reality. But perhaps not surprisingly, Israel is leading the way. One enterprising lawyer there advertises a special service just for such needs in the form of The Biological Will. According to the company, the will, which allows children to be conceived after the death of both parents if necessary, means that “the right to genetic continuity can now be independent even of life itself”. In an unequivocal statement, its founder writes: “Denying the right to procreation is a sentence, perhaps closest in nature, to involuntary sterilization or the death penalty.”
As for Ana Clark, it has now been almost two years since Bastuba collected sperm from her dead husband. Does she still want to have Mike’s child? “Absolutely,” she says. “There is no possibility of me not having this child.” She wants to wait a couple of years, to give herself time to get her Master’s degree so she can provide for her child in the way she wants. “Whoever I do choose to be with is definitely going to have to accept that this is something I am going to do, and there is nothing they can do about it.”
Her family, she says, is completely supportive. It is strange to think that there would likely be fewer people questioning the ethics of Ana’s decision if she were to buy sperm from an anonymous donor. But she already met the man she wants to father her children. “I don’t want children with anyone else,” she says, “I only want them with my husband.”