Posthumous sperm retrieval
Encyclopedia
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 parent if the gamete
s 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 cadaver
s 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.
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. The first successful conception using sperm retrieved post-mortem was reported in 1998, leading to a successful birth the following year. Since 1980, a number of requests for the procedure have been made, with around one third approved and performed. 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
. 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%.
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 whether the sperm was retrieved from a living or dead donor.
, 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 Australia
n states of Victoria and Western Australia
.
s 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. Following the 1997 case of Regina v. Human Fertilisation and Embryology Authority, the terms of the Act were extended to coma
tose 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.
i 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.
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 clinic
s and hospital
s. As such, many medical institutions in such countries institute in-house policies regarding circumstances in which the procedure would be performed.
. 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 recognised on the child's birth certificate
.
Spermatozoon
A spermatozoon is a motile sperm cell, or moving form of the haploid cell that is the male gamete. A spermatozoon joins an ovum to form a zygote...
are extracted from a man after he has been pronounced legally brain dead
Brain death
Brain death is the irreversible end of all brain activity due to total necrosis of the cerebral neurons following loss of brain oxygenation. It should not be confused with a persistent vegetative state...
. There has been significant debate over the ethicality and legality of the procedure, and on the legal rights of the child and surviving parent if the gamete
Gamete
A gamete is a cell that fuses with another cell during fertilization in organisms that reproduce sexually...
s are used for impregnation
Pregnancy
Pregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
.
Cases of post-mortem conception have occurred ever since human artificial insemination
Artificial insemination
Artificial insemination, or AI, is the process by which sperm is placed into the reproductive tract of a female for the purpose of impregnating the female by using means other than sexual intercourse or natural insemination...
techniques were first developed, with sperm donated to a sperm bank
Sperm bank
A sperm bank, semen bank or cryobank is a facility that collects and stores human sperm mainly from sperm donors, primarily for the purpose of achieving pregnancies through third party reproduction, notably by artificial insemination...
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 cadaver
Cadaver
A cadaver is a dead human body.Cadaver may also refer to:* Cadaver tomb, tomb featuring an effigy in the form of a decomposing body* Cadaver , a video game* cadaver A command-line WebDAV client for Unix....
s or patients either on life support
Life support
Life support, in medicine is a broad term that applies to any therapy used to sustain a patient's life while they are critically ill or injured. There are many therapies and techniques that may be used by clinicians to achieve the goal of sustaining life...
or in a persistent vegetative state
Persistent vegetative state
A persistent vegetative state is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. It is a diagnosis of some uncertainty in that it deals with a syndrome. After four weeks in a vegetative state , the patient is...
, particularly when the procedure is carried out without explicit consent from the donor.
Procedure
Epididymis
The epididymis is part of the male reproductive system and is present in all male amniotes. It is a narrow, tightly-coiled tube connecting the efferent ducts from the rear of each testicle to its vas deferens. A similar, but probably non-homologous, structure is found in cartilaginous...
, irrigation
Irrigation
Irrigation may be defined as the science of artificial application of water to the land or soil. It is used to assist in the growing of agricultural crops, maintenance of landscapes, and revegetation of disturbed soils in dry areas and during periods of inadequate rainfall...
or aspiration
Needle aspiration biopsy
Needle aspiration biopsy , may refer to fine needle aspiration cytology , fine needle aspiration biopsy and fine needle aspiration , is a diagnostic procedure sometimes used to investigate superficial lumps or masses...
of the vas deferens
Vas deferens
The vas deferens , also called ductus deferens, , is part of the male anatomy of many vertebrates; they transport sperm from the epididymis in anticipation of ejaculation....
, and rectal probe electroejaculation
Electroejaculation
Electroejaculation is a procedure used to obtain semen samples from sexually mature male mammals. The procedure is applied for breeding programs and research purposes in various species, as well as in the treatment of an ejaculatory dysfunction in human males....
. Since the procedure is rarely performed, studies on the efficacy of the various methods have been fairly limited in scope.
While medical literature
Medical literature
Medical literature refers to articles in journals and texts in books devoted to the field of medicine.Contemporary and historic views regarding diagnosis, prognosis and treatment of medical conditions have been documented for thousands of years. The Edwin Smith papyrus is the first known medical...
recommends that extraction take place no later than 24 hours after death, motile
Motility
Motility is a biological term which refers to the ability to move spontaneously and actively, consuming energy in the process. Most animals are motile but the term applies to single-celled and simple multicellular organisms, as well as to some mechanisms of fluid flow in multicellular organs, in...
sperm has been successfully obtained as late as 36 hours after death, generally regardless of the cause of death
Cause of Death
Cause of Death is a 1990 album by American death metal band Obituary. Cause of Death is considered a classic album in the history of death metal. The artwork was done by artist Michael Whelan...
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%.
If the sperm is viable, fertilisation is generally achieved through intracytoplasmic sperm injection
Intracytoplasmic sperm injection
Intracytoplasmic sperm injection is an in vitro fertilization procedure in which a single sperm is injected directly into an egg.-Indications:...
, a form of in vitro fertilisation
In vitro fertilisation
In vitro fertilisation is a process by which egg cells are fertilised by sperm outside the body: in vitro. IVF is a major treatment in infertility when other methods of assisted reproductive technology have failed...
. The success rate of in vitro fertilisation remains unchanged regardless of whether the sperm was retrieved from a living or dead 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 FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, in which the widow of deceased cancer
Cancer
Cancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...
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
Menopause
Menopause is a term used to describe the permanent cessation of the primary functions of the human ovaries: the ripening and release of ova and the release of hormones that cause both the creation of the uterine lining and the subsequent shedding of the uterine lining...
women.
Similar legislation exists in Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and the Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n states of Victoria and Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
.
Areas requiring written consent
Guidelines outlining the legal use of posthumously extracted gameteGamete
A gamete is a cell that fuses with another cell during fertilization in organisms that reproduce sexually...
s in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
were laid out in the Human Fertilisation and Embryology Act 1990
Human Fertilisation and Embryology Act 1990
The 1990 Human Fertilisation and Embryology Act is an Act of the Parliament of the United Kingdom.-Coverage:The act covers several areas:# The licensing of human fertility treatment involving the use of donated genetic material ....
. The Act dictates that explicit written consent by the donor must be provided to the Human Fertilisation and Embryology Authority
Human Fertilisation and Embryology Authority
The Human Fertilisation and Embryology Authority is a statutory body in the United Kingdom that regulates and inspects all UK clinics providing in vitro fertilisation, artificial insemination and the storage of human eggs, sperm or embryos. It also regulates Human Embryo research...
in order for extraction and fertilisation to take place. Following the 1997 case of Regina v. Human Fertilisation and Embryology Authority, the terms of the Act were extended to coma
Coma
In medicine, a coma is a state of unconsciousness, lasting more than 6 hours in which a person cannot be awakened, fails to respond normally to painful stimuli, light or sound, lacks a normal sleep-wake cycle and does not initiate voluntary actions. A person in a state of coma is described as...
tose patients, and so theoretically assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
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
New York State Senate
The New York State Senate is one of two houses in the New York State Legislature and has members each elected to two-year terms. There are no limits on the number of terms one may serve...
Roy M. Goodman
Roy M. Goodman
Roy M. Goodman is an American politician. He was born in New York City and is the grandson of Israel Matz, founder of the Ex-Lax company.-Political career:...
proposed a bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
in 1997 requiring written consent by the donor in 1998, but it was never passed into law.
Areas requiring implied consent
In 2003, IsraelIsrael
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
i Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
Elyakim Rubinstein
Elyakim Rubinstein
Elyakim Rubinstein was the Attorney General of Israel from 1997 to 2004 and is currently serving as a Judge on the Supreme Court of Israel.Rubinstein, a lifelong Israeli diplomat and civil servant, has had an influential role in that country's internal and external politics, most notably in...
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 BelgiumBelgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, have no specific legislation regarding the rights of men on gamete donation following their death, leaving the decision in the hands of individual clinic
Clinic
A clinic is a health care facility that is primarily devoted to the care of outpatients...
s and hospital
Hospital
A hospital is a health care institution providing patient treatment by specialized staff and equipment. Hospitals often, but not always, provide for inpatient care or longer-term patient stays....
s. 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 statePersistent vegetative state
A persistent vegetative state is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. It is a diagnosis of some uncertainty in that it deals with a syndrome. After four weeks in a vegetative state , the patient is...
. 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
Judaism
Judaism ) is the "religion, philosophy, and way of life" of the Jewish people...
. 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
Halakha
Halakha — also transliterated Halocho , or Halacha — is the collective body of Jewish law, including biblical law and later talmudic and rabbinic law, as well as customs and traditions.Judaism classically draws no distinction in its laws between religious and ostensibly non-religious life; Jewish...
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
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
and even the legal rights of the child to marry (due to the possibility of consanguinity
Consanguinity
Consanguinity refers to the property of being from the same kinship as another person. In that respect, consanguinity is the quality of being descended from the same ancestor as another person...
between partners) can be affected. For this reason, several countries, including Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
and the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, impose a maximum term for the use of extracted sperm, after which the father will not be legally recognised on the child's birth certificate
Birth certificate
A birth certificate is a vital record that documents the birth of a child. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuing registration of that birth...
.