Desperate for a “small piece” of their son that might live on, Peter Zhu’s parents have been granted the chance to have a grandchild using their dead son’s sperm.
In a case that’s sparking fresh ethical and moral questions about the post-mortem retrieval — and use — of human sperm, or eggs, a New York supreme court judge last week gave Zhu’s parents permission to use their late son’s sperm, extracted from his dying body, to produce a child, and new male heir.
But while Zhu, a 21-year-old West Point cadet killed in a skiing accident in February, always dreamed of one day having children, less clear was whether he would have wanted his parents to create his offspring posthumously, should they now find a doctor willing to perform the procedure, and a woman willing to be an egg donor and/or surrogate.
And, when a child is conceived from the sperm or eggs from their dead parent, bioethicists are asking whose best interests are really being served.
I think everyone’s gut reaction in this situation is, ‘this doesn’t feel right’
Today’s assisted-baby making techniques make procreation possible by a once unimagined array of means — “including reproduction after the death of one or both of the gamete (sperm or egg) providers,” the American Society for Reproductive Medicine wrote in a recent ethics statement on posthumous reproduction.
Last September, London’s Daily Mail reported that an unidentified British couple used sperm harvested from their dead son, killed in a motorcycle crash, to have a grandchild, using donors eggs and a surrogate. Sex selection techniques were used in the U.S. to create a male heir, the paper reported. The child is now a toddler.
The first known baby born from post-mortem sperm extraction was delivered in 1999, when Gaby Vernoff gave birth to a daughter in a Los Angeles hospital using frozen sperm that had been retrieved from her dead husband 15 months earlier.
Vernoff’s husband was in his early 30s when he died of a severe allergic reaction.
In Canada, post-mortem sperm retrieval can only happen with the deceased’s prior written consent. Under Canada’s Assisted Human Reproduction Act, before “human reproductive material” is removed from a dead body, there must exist a document signed by the “donor” authorizing the use of his or her gametes for the purpose of creating an embryo. The donor’s surviving spouse or common-law partner can use the material. There is no mention of the parents.
The act also prohibits obtaining sperm or eggs from a person under 18, unless there is a reasonable expectation that the “donor” will be able to raise the child.
“It’s considered a criminal offence to retrieve sperm and eggs unless the patient themselves had given written consent,” said urologist Dr. Keith Jarvi, of Toronto’s Mount Sinai Hospital. “We are not even allowed to consider it. We can’t just trust the family’s consent, we can’t just trust the partner’s consent. We have to have something indicating directly from the patient that was their desire.”
Canada limits use of post-mortem sperm to one of three options, one of which is reproductive use by the person’s partner, said Dalhousie University bioethicist Francoise Baylis. (Men can also consent to have their sperm used for training or education purposes.)
“Note — there is not the option of consent to the reproductive use of gametes for someone else’s reproductive project,” Baylis said in an email. “If a new life is to be created, it can only happen in the context of a prior family structure.”
In the Zhu case, the grandparents’ “parental” project is selfish, Baylis said. It satisfies personal needs, and not necessarily the needs of their deceased son, “or the needs of a being that does not yet exist (and so does not have needs),” she said.
“Further, if one thinks about the new life that is to be created — who is going to care for this child? The grandparents? The egg donor?” Baylis said. “What origin story will be told to this child? How will they experience this?”
If what counts most is having a male heir (Zhu’s parents come from China, and, in Chinese culture “only a son can carry on his family’s name,” they said in a petition to the court), would the hopeful grandparents end a pregnancy should it produce a female fetus, asks Arthur Caplan, director of ethics at NYU School of Medicine, in a podcast on Medscape.
In Canada, the more typical scenario is when parents wish to use their son’s sperm that had been frozen prior to chemotherapy. (Women are also increasingly cryopreserving immature eggs before undergoing cancer treatments.) Young people undergoing treatments that could render them infertile expect to be alive when their sperm or eggs are used. However, they can also bequeath ownership of their sperm (or eggs) to their parents, should they die. “Because that’s who you trust, your parents,” said Toronto fertility lawyer Sherry Levitan. “You’re not going to give your gametes to your prom date.”
However, Levitan was once involved in a case of a young man on life support whose parents desperately wanted a sperm sample retrieved before, or immediately after his death. (Generally the extraction of sperm should take place no later than 24 hours after death.)
What origin story will be told to this child? How will they experience this?
“It’s a grief manifestation — you know it. And the hospital knows it, and the lawyers know this is highly problematic, and nobody wants to say ‘no,’ because this is what people are hanging onto, and getting them through their grief,” she said.
However, “I have never been involved in a situation where the parents put everything together, and actually created a grandchild,” Levitan said.
Such a scenario would bring a child into the world “who will have zero opportunity to be raised by his or her parent,” Levitan said. “It is also psychologically possible that the child is going to feel like a replacement,” as if he or she was created for a purpose. “I think it could certainly be viewed as being unfair to the child to be born, really, to assuage grief, and without the possibility of being raised in a more usual circumstance.
“I think everyone’s gut reaction in this situation is, ‘this doesn’t feel right.’”
The American fertility group agreed, writing that the desires of the grieving parents do not give them any ethical claims to their child’s gametes.
Still, it’s an interesting conversation to have with loved ones, said Jarvi, a professor of surgery at the University of Toronto. “You never want to think that you may end up being in a traumatic accident. But it’s something you have to think about now, if you are a young man.
“If you don’t record it on paper, your wishes will not be adhered to.”
Jarvi said even partners aren’t necessarily a “reliable indicator” of a man’s wishes. Surveys have found that men often did not want to have children posthumously, even though their partners thought they did. “There is some disconnect between what the families think the men would want, and what the men actually would have wanted,” Jarvi said.