By: Svetlanna N. Valdes

Posted on: April 12, 2023

Imagine a young, heterosexual and cisgender newlywed couple deciding to wait to have children.  After a few years, they finally feel ready to start the journey of being parents and consult their doctor to properly prepare for it. The doctor prescribes prenatal vitamins to the wife, and the husband and wife begin their parenthood journey. A few weeks later, the husband suddenly passes away. The tragedy took away more than the man that she loved, it took away her dream of bearing his child. However, due to advancements in Assisted Reproductive Technologies (hereinafter “ARTs”), the wife’s dream of bearing her husband’s child could carry on after his death.[1]

So long as the wife can financially afford it, she will have 24-36 hours to call a clinic or hospital willing to perform postmortem gametic retrieval (hereinafter “PMGR”) of her spouse’s gametic (reproductive) material.[2]  However, attaining a possessory interest over the reproductive material of a deceased spouse can be challenging because clinics, hospitals, and courts on this practice differ depending on the jurisdiction.[3]

Postmortem extraction of gametes for future posthumous conception is a novel but an ongoing issue with little guidance and regulation.[4]  Accordingly, private agents (clinics and hospitals) are left deciding on a person’s ability to procreate using a decedent’s gametic material retrieved after the decedent has passed away.[5]  This blog stresses the need to consider PMGR when drafting wills and the need for federal regulation or state-wide notice to citizens regarding how best to prepare for a situation in which one would need explicit written consent from the decedent if they would like to extract the decedent’s gametic material.[6]

As technology advances, the notion of what makes up a “traditional” family transforms.[7]  Before the 1950s, a spouse would have to accept the loss of both her partner and her hope of having her partner’s child if her husband suddenly passed away.[8]  However, developments in ARTs have given a chance for a person to have a child, regardless of whether one of the partners has passed away unexpectedly.[9]

The science has advanced quicker than the law can keep up. Beginning with the clinics and hospitals, some can and will agree to extract the decedent’s sperm post-mortem so long as the spouse requests it, while others will not do so without prior written consent from the decedent. The same is true for courts in different jurisdictions. For example, New York and the District of Columbia have allowed close relatives to extract the decedent’s sperm without explicit prior written consent from the decedent, while California has not.

Since young couples are waiting to have children, but not necessarily waiting to get married, it is imperative that they consider whether they would want to have children even after they have passed away. The issue for courts revolves around the decedent’s intent. The California Court of Appeals in Robertson v. Saadat, for example, concluded that what a decedent wants while they are alive can be different from what they want after they pass away.[10]  One way for couples to prepare for this properly is to have a living will in place that explicitly states what they would want regarding their reproductive material after they pass away. If postmortem genetic retrieval is not addressed in your will then your spouse could end up having your child after you pass away, or your spouse could end up not being able to have your child after you pass away, even if that’s what both of you want. Would this really be a decision that you would want left to a hospital, clinic or court? Hopefully not if you could help it!

[1] See Susan M. Kerr, Post-Mortem Sperm Procurement: Is It Legal?, 3 DePaul J. of Health Care L. 39, 40 (1999) (disclosing that the first instance of postmortem sperm retrieval was accomplished in 1980 on a 30-year-old man who died after a motorcycle accident).

[2] See Shai Shefi et al., Posthumous Sperm Retrieval: Analysis of Time Interval to Harvest Sperm, 21 Hum. Reprod.2890, 2892 (2006) (concluding that sperm retrieval for purposes of PMGR can be performed 36 hours post-mortem even though the recommended timeframe was within 24 hours of the decedent’s passing).

[3] Compare In re Estate of Hartman, Case No. 2020 ADM 000183 (D.C. Sup. Ct. Aug. 30, 2021) (affording the decedent’s wife possessory interest in her husband’s sperm retrieved postmortem), and Matter of Zhu, 2019 NY Slip Op. 29146, ¶ 5, 64 Misc. 3d 280, 289, 103 N.Y.S.3d 775, 781 (Sup. Ct.) (granting a decedent’s parents the possessory interest in their son’s sperm retrieved postmortem), with Robertson v. Saadat, 262 Cal. Rptr. 3d 215, 229 (Cal. Ct. App. 2020) (rejecting the argument that a decedent’s silence on the matter of posthumous conception should be interpreted as consent to have his sperm retrieved postmortem and used to conceive posthumously).

[4] See Katheryn D. Katz, Parenthood from the Grave: Protocols for Retrieving & Utilizing Gametes from the Dead or Dying, 2006 U. Chi. Legal F. 289, 290 (2006) (discussing the lack of advice legal and medical professionals have on the matter of PMGR).

[5] See id. (providing that medical professionals have developed protocols allotting themselves too much procreative liberty over decisions on PMGR).

[6] See Robertson, 262 Cal. Rptr. 3d at 229 (holding that a spouse needs prior written consent if they want to use their deceased spouse’s sperm to conceive a child after the decedent passed away).

[7] See Ashley Stahl, New Study: Millennial Women Are Delaying Having Children Due to Their Careers, Forbes 1, 2 (May 1, 2020) (revealing that the “average age for first-time mothers [rose] from 21 to 26 [and for fathers] 27 to 31”); The American Family Today, Pew Rsch. Ctr. 1, 15 (Dec. 17, 2015) (explaining the growing diversity of household make-up that children grow up in now compared to prior generations).

[8] See Enrique Estudillo et al., Cryopreservation of Gametes & Embryos & Their Molecular Changes, 22 Int’l J. Molecular Scis. (Special Issue) 1–2 (2021) (revealing that the first reported cryopreserved spermatozoa that led to a pregnancy followed by live birth was in 1953).

[9] See Janet L. Dolgin, The Law Debates the Family: Reproductive Transformations, 7 Yale J. L. & Feminism 37, 42 (1995) (providing ART has made it possible for conception to succeed without sexual intercourse).

[10] See Robertson, 262 Cal. Rptr. 3d 215, at 230 (rejecting the spouse’s evidence of the decedent’s wish to have children while he was alive as meaning that he would want the same after he has passed away). See also Hecht v. Superior Court,20 Cal. Rptr. 2d 275, 276 (providing that the decedent made known his intent to have his partner have his children after he died “should she so desire,” because it was written in his will).

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