Ethical Issues in Posthumous Sperm Retrieval

2016 - 4 August- Clinical Controversies Highlighted at the 45th Critical Care Congress
Wynne E. Morrison, MD, MBE, FCCM; Nneka O. Sederstrom, PhD, MPH, MA, FCCP, FCCM; Nicholas S. Ward, MD, FCCM
This Ethics article addresses the ethics of posthumous sperm retrieval.
Case Study 1: Parental Request for Posthumous Sperm Retrieval
An 18-year-old single man is admitted to the medical intensive care unit (MICU) with profound coma following respiratory and cardiac arrest from a drug and alcohol overdose. In the MICU, the patient’s examination is consistent with brain death. He is maintained on mechanical ventilation and weaned off vasopressors. Subsequent toxicology tests show no evidence of drugs or alcohol, and his body temperature is normal. After further testing, he is declared brain dead by the neurology service. The patient’s parents are informed at the bedside, and a discussion about organ donation occurs. During the discussion, the parents tell the medical team that they wish to harvest their son’s sperm so that it may be used in the future to “keep his legacy alive.”

In Case Study 1, the discussion focuses on an 18-year-old man who has an unanticipated devastating traumatic injury leading to declaration of death by neurologic criteria. Given the unexpected nature of the patient’s death, the ethics of accepting the parents’ request for posthumous retrieval are not as straightforward as they are in other situations, as in expected deaths or deaths of people with life partners. The literature addresses the issue of married or unmarried cohabitants who expect to procreate.(1) It also addresses pediatric populations with diseases (eg, cancer) whose treatments result in sterility, infertility or subfertility. In these cases, attempting to protect the reproductive integrity of the gonads is paramount in order to preserve the potential for procreation when the child is of age and expresses interest.(2) The patient in Case 1 is an unmarried 18-year-old man who has not yet expressed interest in procreation, nor had an illness from which a conversation about preservation of procreative abilities could have stemmed.

Unfortunately for the patient’s parents, the rationale of sperm retrieval for the sake of “keeping his legacy alive” is not one that can be justified using the current ethical standards for sperm retrieval.(3) Gamete harvesting is not the same as whole organ or tissue donation. In whole organ and tissue donation, one could argue that the donation confers a benefit on society and/or on a living person. In the case of requests for posthumous gamete retrieval/reproduction, there are no such clear direct benefits, even if there are possible individual or social benefits that accrue from a child born in these circumstances. In this specific case, the parents are requesting sperm retrieval because of grief associated with the loss of their child. This request cannot be upheld by any of the accepted standards of presumed consent for procreation, nor is it based on any previously articulated wishes by the patient about what to do with his gametes. As such, it would be ethically justifiable to recommend refusing the request for sperm retrieval and to offer support and grief counseling services to the parents. There are moral implications in honoring the dead; assisting the parents in finding more appropriate ways to ensure their son “lives on” should be promoted.

Case Study 2: Life Partner Request for Posthumous Sperm Retrieval
A 40-year-old man is admitted to the coronary care unit with severe myocardial infarction. Despite aggressive care, he has a cardiac arrest before he can be taken to the catheterization laboratory and, after 30 minutes of advanced cardiac life support, is pronounced dead. After telling the gathered family about the events, a woman who says she is his wife asks whether she can have sperm removed from the patient’s body so that she may have his child. All of the other family members present are very supportive of this request.

The families in both vignettes are suffering an acute loss, and part of their understandable grief response is to consider how to preserve the legacy of their loved one. Gamete retrieval is different from any other means of preserving that legacy, because of the potential to create a new person, adding additional ethical and legal ramifications.

Case Study 1 is problematic because the patient had not identified a partner with whom he planned to have children, and parents do not typically take on the role of deciding how, and with whom, their grown children procreate. In Case Study 2, it is more reasonable to consider whether gamete retrieval should be allowed, since there is an identified life partner/child bearer. There is precedence in several countries for allowing procurement in these circumstances. Due diligence is important to ensure that the woman identified is indeed someone whom the deceased would have wanted to bear his children. While it would be rare to have a written directive specifying the patient’s consent to gamete retrieval, studies have shown that the majority of the public would approve of a spouse using their own gametes for reproduction.(1)

Other concerns include the impact on a child of conception after a parent’s death. It is difficult to argue that the child would be better off not being born. The life partner is certainly legally entitled to seek an anonymous sperm donation, and using her deceased husband as the donor instead would offer the child a greater genetic and possibly greater emotional connection to her deceased husband’s family, which is a possible benefit. The impact on the child is important to anticipate, but is not a justification for banning the procedure. 

 If sperm are obtained, a waiting period before reproductive assistance occurs would almost always make sense. The partner gains time to process the acute grief response and to confirm that having a child continues to make logistical and psychological sense after she adjusts to the life changes that will occur after the death. She should be counseled on the financial implications of gamete storage and assisted reproduction, neither of which is generally covered by health insurance (therefore, fees would be out-of-pocket). Important legal questions include: Can the child inherit from the deceased? What about life insurance or disability benefits? It is worth exploring potential conflicts of interest (eg, a second spouse attempting to divert inheritance from the children of a first spouse by conceiving a child)?

The American Society for Reproductive Medicine Ethics Committee opinion on posthumous collection and use of reproductive tissue states that clinicians are allowed, but not obligated, to participate in posthumous assisted reproduction. They specify that a spouse or life partner should be identifiable. They also recommend including a person’s wishes regarding postmortem use of his/her gametes or embryos on fertility treatment consent forms, so that his/her prospective consent for both posthumous gamete retrieval and posthumous parenting is clear.(3)



1. Hans JD, Yelland EL. American attitudes in context: posthumous sperm retrieval and reproduction. J Clin Res Bioeth. 2013;S1:008.
2. Fallat ME, Hutter J; American Academy of Pediatrics Committee on Bioethics; American Academy of Pediatrics Section on Hematology/Oncology; American Academy of Pediatrics Section on Surgery. Preservation of fertility in pediatric and adolescent patients with cancer. Pediatrics. 2008 May;121(5):e1461-e1469.
3. Ethics Committee of the American Society for Reproductive Medicine. Posthumous collection and use of reproductive tissue: a committee opinion. Fertil Steril. 2013 Jun;99(7):1842-1845.