Postmortem sperm retrieval and use of posthumously created embryos

Consider This
Postmortem sperm retrieval and use of posthumously created embryos


Prachi Godiwala, M.D.

Department of Obstetrics and Gynecology
Division of Reproductive Endocrinology and Infertility
University of Connecticut Health


Posthumous sperm retrieval has been reported for the past four decades. There are several considerations prior to complying with requests for sperm retrieval and use posthumously. This paper explores the reasons why postmortem sperm retrieval is rarely performed, and summarizes the ethical, medical and practical ramifications of doing so using previously published guidelines and cases as models. In addition, it discusses the use of posthumously collected sperm later on in life by surviving individuals.

Consider This:

I recently received a late-night telephone request from the desperate mother of a male patient who had passed away. At age 38, his life had unexpectedly ended. The emergency room physician called our IVF center’s answering service to obtain guidance on whether it would be possible to retrieve his sperm for use after death. The patient was unmarried but did have a female partner who shared this hope.

In the vast majority of situations like this, the patient has not previously signed a consent for postmortem gamete collection.1 In such cases, is sperm retrieval ethically permissible? Who has the right to decide? What about the welfare of a child created from those embryos? What safeguards need to be in place to protect the care providers from legal repercussions, and how do we simultaneously uphold the wishes and legacy of the patient whose life has now ended? Now in the era of COVID-19, the ethical, medical, and practical ramifications of providing such a service are more important than ever, and are addressed here.

These questions have been around for nearly as long as in vitro fertilization has been possible. The first case of successful postmortem sperm retrieval was reported in 1980.2 At that time, sperm could only be harvested when the patient was brain dead (i.e. the heart and lungs were intact, allowing circulation to continue keeping sperm alive). In that case, sperm from a 30-year-old man who was involved in a motor vehicle accident was retrieved “at his family’s request,” requiring no formal consent process in order to undertake the procedure.

Since then, postmortem sperm harvesting has been attempted in a variety of ways, including removal from the epididymis, irrigation or aspiration from the vas deferens, biopsy from the testicular tissue, and rectal probe electroejaculation.3 None are well studied, as postmortem harvesting of sperm is rarely performed; indeed, in a 1997 report, only about one-third of requests to harvest sperm were honored.4  Nowadays, sperm may be retrieved from an individual who no longer has functioning heart activity, oxygenation, or circulation. The sperm ideally should be collected within 24 to 36 hours of the patient’s death, or motile sperm may not be found.3 Given these time constraints, as well as the ethical and practical issues noted here, it is rare for a request for sperm retrieval to actually be performed. However, there have been reports of successful pregnancies and births from posthumously collected sperm, with the first reported birth in 1999.5

The four pillars of medical ethics are autonomy, beneficence, non-maleficence, and justice.6 Respect for autonomy refers to the patient’s right to accept or refuse medical interventions. Beneficence refers to the duty of physicians to act in the best interests of their patients, while non-maleficence requires that physicians avoid causing harm to patients. Justice means that persons in like circumstances should be treated similarly and that resources are distributed fairly among patients.

In a landmark paper by Orr in the Journal of Medical Ethics, cases regarding the posthumous procurement of sperm were presented and an ethical rubric was developed addressing the permissibility of sperm harvesting.7 One ethical dilemma posed by the concept of posthumous sperm retrieval is the potential for disrespect of the dead body to compromise the autonomy of the now deceased patient. Western society, in general, has reservations about cutting, opening, or inspecting a dead body.8 However, most would agree that as long as the reason is important enough, such as an autopsy to determine the cause of death, or if the benefits of doing it outweigh the harms of disrespecting the dead body, such as recovery of organs for transplantation, it is permissible to carry out the procedure in the most respectful way possible. Interestingly, this practice has not yet been widely accepted in the case of retrieving sperm.7

The reasons why are unclear, but likely manifold. One reason could be that trespassing upon a dead person’s genitalia seems a more private and personal procedure than recovery of other organs within the abdomen or thorax, causing hesitation both among those requesting and those performing the procedure. In addition, the intrusion into the body of the dead person for an organ transplantation or autopsy has the potential to benefit other patients and contribute to medical knowledge, incorporating elements of both beneficence and justice to these altruistic acts. Posthumous sperm retrieval benefits only the person requesting it, and in many cases the creation of a child in the deceased person’s absence may not represent their wishes, violating the principle of autonomy.

The welfare of the child-to-be is an important consideration as well, although difficult to conceptualize.7 While in every other medical situation there is only one patient, in the field of posthumous human reproduction, there are not only two but three parties to consider: the deceased individual, the individual requesting the procedure to be performed, and the child-to-be. Some critics have presented the possibility of a more difficult upbringing for children conceived through posthumous ART, comparable to that of children being raised by a single parent.9 To these individuals, the creation of such a child may be a transgression of the principle of non-maleficence. However, it is considered ethically acceptable for infertility clinics to assist single parents in becoming pregnant, as well as couples in which one parent is expected to die soon from an illness, as the autonomy of the parents is the overriding factor. The welfare of children born from posthumous ART should be viewed similarly, if sufficient consent and understanding is present.

Consent is one of the most important topics to consider in this scenario. In the majority of cases of postmortem sperm retrieval, informed consent is not present, and in many cases even implied consent is impossible. Indeed, in one study, only one of 19 individuals undergoing perimortem sperm cryopreservation provided written consent ahead of time for the use of stored sperm.1 Crucially, the question at hand is not only whether the patient desired to father children, but whether they would have wanted to do so posthumously. While the patient’s negative right to be left alone or decline the procedure is almost universal, a corresponding positive right to have such a procedure performed is not. Of note, although gamete retrieval, storage, and later use by the surviving partner are interrelated, they are separate processes that require separate acts of consent.

When embryos are created prior to the death of one of the partners, and there is no documentation of wishes opposing their use after the death of one of the partners, it would seem reasonable to allow the surviving partner to use those embryos. The surviving partner has contributed equally to the creation of those embryos, so they may lay claim to their use. However, the use of gametes cryopreserved prior to a patient’s death is a grayer area. The surviving partner did not contribute to the creation of those gametes, so it is difficult to allow that partner to lay claim to them. However, the reason that the gametes were frozen in the first place must be considered. In many cases, the act of freezing these gametes represents a joint reproductive desire between the two partners which can be fulfilled by the surviving partner.

The most difficult scenario is the one my patient experienced: one partner passes away, no sperm has been cryopreserved ahead of time, and there is no documentation of a pre-existing joint reproductive desire. Given the time constraints in harvesting sperm postmortem, the invasive nature of the harvesting procedure, and lack of documentation of the deceased individual’s wishes, it is not surprising that the vast majority of these cases are denied.

Physicians struggle the most with these types of cases. There are two issues, coinciding with the two points in the process where physicians are required to be involved: 1) whether physicians can ethically and legally comply with a surviving partner’s request for the harvesting of sperm from the deceased, and 2) whether physicians can ethically use the postmortem harvested sperm in the creation of embryos for the surviving partner. Because neither of these questions can be answered with certainty without clear consent from the deceased partner before death, the ASRM concludes that physicians are not ethically obligated to comply with either request, and that physicians should familiarize themselves with the policies of their IVF practice as well as the laws in the state where they practice.9

In addition, there are restrictions on who can request a deceased patient’s gametes to be cryopreserved. Per the ASRM Ethics Committee, if the request comes solely from someone other than a spouse or partner—such as from a parent, as in my patient’s scenario—it is not ethically permissible to comply with this request.9 A joint reproductive goal does not exist between the deceased individual and their parent; the desire of parents to remain connected to their deceased child or to continue their legacy via grandchildren is insufficient claim over their child’s gametes. Other factors that may strengthen the case to retrieve sperm include a legal spousal connection between the deceased patient and the living partner, or if they had conceived children together prior to the death, providing evidence of prior intent of reproduction with that partner.  

One physician, Dr. Soules, has brought several practical issues regarding this process to light, including the possibility for communicable diseases being passed in the sperm to the surviving partner.10 Those cryopreserving sperm for IVF are required to undergo infectious screening, and sperm donors have even more stringent requirements for infectious testing prior to use of their sample, including tests for gonorrhea, chlamydia, hepatitis B and C, syphilis, human immunodeficiency virus (HIV), cytomegalovirus (CMV) and human T-lymphotropic virus (HTLV).11 Should infectious screening be performed, and if so, at whose expense?

Novel pathogens like SARS-CoV-2, the virus responsible for the current COVID-19 pandemic, offer additional uncertainty, as it is currently unknown whether it affects sperm or semen quality.12 There have been conflicting results regarding whether the virus is transmitted in semen, and it may affect fertility by causing an orchitis.12,13 In one report, a higher percentage of those with the virus in their seminal fluid were at the active stage of infection rather than in the recovery phase, suggesting that it may be more likely to be found in those with severe disease, including those who had died of the disease.14 If these sperm are used to create embryos, how do we obtain such testing from a patient who has already died so that we may ensure that the surviving partner is safe?

The last practical consideration is where and how sperm harvesting will take place. To perform it in an operating room, utilizing supplies and personnel usually reserved for living patients or life-saving organ donation, may seem an unjust use of resources. It also requires a nearby embryology laboratory and staff available to rapidly process the tissue. Where should this occur, and who should pay for these services? Health insurance is unlikely to reimburse for services provided after the patient’s death, so should family members be expected to pay out of pocket? These are practical questions of justice that have no clear answer, even though Soules raised them over two decades ago.10

In my patient’s case, we ultimately declined to retrieve sperm for multiple reasons. The request came from the patient’s mother, and not his partner; he and his partner were unmarried; and there was neither any documentation indicating his wishes to father children in the future, nor did he have any prior children or a history of infertility treatment to support that assumption. Given what I know now about the ethical and practical ramifications of providing this service, I am certain this was the right decision. However, it is difficult to offer such a response to family members who have recently lost a loved one and are in shock, grieving, and looking for a way to hold on to their lives as they know it.

While this knowledge has not changed my clinical practice, it has made me more aware of the policies of my IVF center and our state laws regarding posthumous conception. The IVF process should include formal consents that address this exact scenario to try to minimize the occurrence of such cases.9 It has also encouraged me to examine what I might desire if faced with the tragic loss of a family member, including my husband, or what I may deem acceptable if I were to pass away unexpectedly. My husband and I have recently had conversations regarding freezing sperm in case of unexpected death, especially given the recent COVID-19 outbreak and possibility of exposure to the disease among health care workers. In addition, it has sparked many conversations with families and friends, and encouraged them to think about what they may want for their own futures if they are ever in the unfortunate circumstance of having to make these difficult decisions in the wake of the death of a loved one.


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