Posthumous sperm retrieval
Posthumous sperm retrieval (PSR) is a procedure in which spermatozoa are extracted from a man after he has
been pronounced legally brain dead. There has been significant debate over the ethicality and legality of the
procedure, and on the legal rights of the child and surviving spouse if the gametes are used for impregnation.
Cases of post-mortem conception have occurred ever since human artificial insemination techniques were first
developed, with sperm donated to a sperm bank being used following the death of the donor. While religious
arguments have been brought against the process even under these circumstances, far more censure has arisen
from a number of quarters with regards to invasive retrieval from fresh cadavers or patients either on life support
or in a persistent vegetative state, particularly when the procedure is carried out without explicit consent from the
donor.
Legality
The legality of posthumous sperm extraction varies from jurisdiction to jurisdiction. Generally, legislation falls into
one of three camps: a full ban, a requirement of written consent from the donor, or implied consent obtained from
the family.
Areas with full bans
Following the 1984 Parpalaix case in France, in which the widow of deceased cancer patient Alain Parpalaix
obtained permission from the courts to be inseminated with her husband's spermatozoa after his death, the
Centre d’Etude et de Conservation du Sperme Humain (Center for the Study and Preservation of Human Sperm)
petitioned the courts successfully for a full ban on posthumous insemination, in line with the country's ban on in
vitro fertilisation for post-menopausal women.
Similar legislation exists in Germany, Sweden, Canada and the Australian states of Victoria and Western Australia.
Areas requiring written consent
Guidelines outlining the legal use of posthumously extracted gametes in the United Kingdom were laid out in the
Human Fertilization and Embryology Act 1990. The Act dictates that explicit written consent by the donor must be
provided to the Human Fertilization and Embryology Authority in order for extraction and fertilization to take
place. Following the 1997 case of Regina v. Human Fertilization and Embryology Authority, the terms of the Act
were extended to comatose patients, and so theoretically assault charges could be (but in this case were not)
brought against doctors for overseeing or performing the procedure.
There are few other jurisdictions that fall into this category. New York senator Roy M. Goodman proposed a bill in
1997 requiring written consent by the donor in 1998, but it was never passed into law.
http://en.wikipedia.org/wiki/Posthumous_sperm_retrieval
Areas requiring implied consent
In 2003, Israeli Attorney General Elyakim Rubinstein published several guidelines outlining the legal situation of
posthumous sperm retrieval for the purpose of later insemination by a surviving female partner. The guidelines
specified firstly that only requests by a partner (married or otherwise) of the deceased would be honoured –
requests by other members of the donor's family would be flatly denied. While extraction of the sperm was
guaranteed following a request by the partner, permission to use the sperm was to be determined case by case, a
court of law deciding on the basis of the effect on the presumed wishes of the donor, and the effect of the
procedure on the donor's dignity. If it could be demonstrated that the deceased took definite steps towards
parenthood (implied consent), use of extracted sperm by the female partner would generally be permitted.
No legislation
Many other countries, including Belgium and the United States, have no specific legislation regarding the rights of
men on gamete donation following their death, leaving the decision in the hands of individual clinics and hospitals.
As such, many medical institutions in such countries institute in-house policies regarding circumstances in which
the procedure would be performed.
Ethics
There are several ethical issues surrounding the extraction and use of gametes from cadavers or patients in a
persistent vegetative state. The most debated are those concerning religion, consent, and the rights of the
surviving partner and child if the procedure results in a birth.
A number of major religions view posthumous sperm retrieval in a negative light, including Roman Catholicism and
Judaism. Roman Catholicism proscribes the procedure on much the same grounds as in vitro fertilisation, namely
the rights of the unborn. Judaic strictures are based on the halakhic prohibition on deriving personal benefit from a
corpse, and in the case of those in a persistent vegetative state, their categorisation as gosses (dying person)
prohibits anyone from touching or moving them for anything that does not relate to their immediate care.
Consent of the donor is a further ethical barrier. Even in jurisdictions where implicit consent is not required, there
are occasions in which clinicians have refused to perform the procedure on these grounds. If no proof of consent
by the donor can be produced, implied consent, often in the form of prior actions, must be evident for clinicians to
proceed with the extraction. Sperm retrieval is rarely carried out if there is evidence that the deceased clearly
objected to the procedure prior to his death.
Finally, if the procedure is performed and results in a birth, there are several issues involving the legal rights of the
child and its mother. Because posthumous insemination can take place months or even years after the father's
death, it can in some cases be difficult to prove the paternity of the child. As such, inheritance and even the legal
rights of the child to marry (due to the possibility of consanguinity between partners) can be affected. For this
reason, several countries, including Israel and the United Kingdom, impose a maximum term for the use of
extracted sperm, after which the father will not be legally recognized on the child's birth certificate.
http://en.wikipedia.org/wiki/Posthumous_sperm_retrieval