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.^[1]

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.

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Procedure

  The first successful retrieval of sperm from a cadaver was reported in 1980, in a case involving a 30-year-old man who became brain dead following a motor vehicle accident and whose family requested sperm preservation.^[2] The first successful conception using sperm retrieved post-mortem was reported in 1998, leading to a successful birth the following year.^[3] Since 1980, a number of requests have been made, with around one third approved and performed.^[1] Gametes have been extracted through a variety of means, including removal of the epididymis, irrigation or aspiration of the vas deferens, and rectal probe electroejaculation.^[3] Since the procedure is rarely performed, studies on the efficacy of the various methods have been fairly limited in scope.

While medical literature recommends that extraction take place no later than 24 hours after death, motile sperm has been successfully obtained as late as 36 hours after death, generally regardless of the cause of death or method of extraction. Up to this limit, the procedure has a high success rate, with sperm retrieved in nearly 100% of cases, and motile sperm in 80-90%.^[4]

If the sperm is viable, fertilisation is generally achieved through intracytoplasmic sperm injection, a form of in vitro fertilisation. The success rate of in vitro fertilisation remains unchanged regardless of the status of the source.^[4]

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 1994 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,^[5] in line with the country's ban on in vitro fertilisation for post-menopausal women.^[6]

Similar legislation exists in Germany, Sweden, Canada and the Australian states of Victoria and Western Australia^[5]

Areas requiring written consent

Guidelines outlining the legal use of posthumously extracted gametes in the United Kingdom were laid out in the Human Fertilisation and Embryology Act 1990. The Act dictates that explicit written consent by the donor must be provided to the Human Fertilisation and Embryology Authority in order for extraction and fertilisation to take place.^[7] Following the 1997 case of Regina v. Human Fertilisation 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.^[5]

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.^[8]

Areas requiring implied consent

In 2003, then-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 – other members of the donor's family could not request the procedure. 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.^[9]

Many other countries, including Belgium and the United States,^[5] have no specific legislature 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 the permissible use of the procedure^[10]

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 fertilisation occurs successfully.

A number of major religions hold negative stances towards posthumous sperm retrieval, including Roman Catholicism^[11] and Judaism.^[12] Roman Catholicic 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 prevents any from touching or moving them for anything that does not relate to their immediate care.^[12]

Consent of the donor is a further ethical barrier. Even in jurisdictions not requiring implicit consent, clinicians on occasion refuse to perform the procedure on these grounds.^[10] If no proof of consent by the donor can be produced, often implied consent in the form of prior actions must be evident for extraction to proceed. It is rare for the procedure to be performed if the deceased made clear his objection prior to his death.

Finally, if the procedure is performed and results in a birth, there are numerous effects on the legal rights of both the child and mother. Because posthumous insemination can take place months or even years after the father's death, it can in some cases be difficult to ultimately 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 for the father to be legally recognised on the child's birth certificate.^[5][9]

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