Ian Cooke
Sheffield, England

Family structures ensure that one’s genes are passed down through generations, but that does not always go according to plan. The opportunity may not arise because childhood or adolescent disease, notably cancer but also infections or trauma, may supervene.

In 1996, I was doing a clinic late in the afternoon when I was telephoned and asked to obtain sperm from a comatose man with acute meningitis. I had been advising a PhD student about sperm recovery from paraplegic men by electroejaculation, so we had the technology. However, I had been an inaugural member of the Human Fertilization and Embryology Authority (HFEA) formed in 1990, which had created its Code of Practice.¹ I realized that in discussing posthumous reproduction, we had only ever thought of a man with cancer, who had had time to consider matters carefully, sign consent, and make preparations. We had never discussed an acute infection with rapid progression or a situation where a man did not have the time or opportunity to complete the procedures. Without written consent, it would have been illegal to use any recovered sperm, but humanity dictated that the opportunity be seized and any issues sorted later. I was informed the next day by the HFEA that I had acted illegally and had to dispose of the sample. However, on seeing his widow later, I was asked not to do so. She was seeking a judicial review of the HFEA decision, as her husband and she had previously discussed the issue and he was clear that he would want her to use his sperm.

The lower court ruling went against her, but the Court of Appeal agreed that although it was illegal to use the sperm in the United Kingdom, she could, according to European Community law, use the stored samples in other parts of Europe.² I wrote to colleagues in six European countries and only those in Belgium agreed to do the insemination with the cryopreserved samples. I arranged the ovarian stimulation and she took the stored sperm to Belgium. In this manner she had a child and later another. It is now explicitly illegal to do this in the United Kingdom without signed consent. However, she could not have her husband’s name on the birth certificate, so she subsequently fought to achieve that and was successful.

This high-profile case generated much debate, and the area has continued to develop. The question about gamete retrieval might be asked of adolescents with cancer, even of children, although gametes do not develop until puberty, so testicular tissue, ovarian strips or even whole ovaries have been frozen for future use. Adults with chronic diseases, including HIV, and those in hospice or intensive care units or members of the Armed Forces may consider their options. The problem may also arise at the request of relatives of those who are on life support but are brain dead. Of course, attending medical staff need to be aware of the possibilities, have the technology available, and offer it empathetically along with support. The process may be clear for those with partners or who are married, but not if they are single persons. Attention has also been drawn to the situation for couples in same-sex relationships.

The legal situation varies in different countries, but most require signed consent of the donor before death, although there may be no law at all. Lawyers and ethicists debate the factors to be taken into account and whether gametes represent property.³ The interests of the deceased donor, those of the spouse or partner, of other stakeholders such as parents or grandparents, even of the general public, have a role to play and could best be exercised in a multi-disciplinary team of health professionals such as fertility experts, oncologists, and palliative care staff.⁴ The welfare of the potential child, including psychosocial aspects, should be considered.⁵ Matters of designated paternity and inheritance for the future child are also important as are the interests of existing siblings, who may need to be consulted. Religious traditions may encourage retrieval and storage, as in Israel, or prohibit them, as in Iran. Others believe that cultural traditions should have an influence, as in New Zealand.⁶ Decisions may be made during bereavement, so there should be a defined time, such as a year, of built-in delay to allow for counselling and grieving.⁷

In more liberal societies, it has been suggested that the process should be simplified, that implied consent could be acceptable, or that the consent of partner or parents could be admissible and a tribunal decide later.⁸ Another alternative could be that consent would be routine unless the potential donor had confirmed a wish to opt out of donation. However, care would need to be exercised to avoid consanguinity or incest, and consideration given to the significance of raising a child in a single parent family.⁹ In the case of fallen soldiers, many are single men (and increasingly will be women), so there may not be a partner to consult. In Israel parents will be able to make the decision.

Professional societies have developed guidelines, such as those of the American Society for Reproductive Medicine (ASRM), the European Society for Human Reproduction and Embryology (ESHRE), and the American Society for Clinical Oncologists (ASCO), but not all practitioners are aware of these.¹⁰ There are recommendations that each institution should have a policy and a protocol for implementation with a form for consent, but again, the practice is not uniform.¹¹

The time for obtaining the samples may be when a condition is stable, before cell damage is inevitable from proposed chemotherapy or when death is imminent. If death has occurred, any retrieval should be done within 36 hours.

In a fertility clinic, the potential sperm or egg donors should specify the fate of the gametes in such a hypothetical scenario. Would the gametes still be available for donation? Would a recipient be willing to accept a donation from a deceased donor? Should the gametes be donated for research without ultimate transfer, or be allowed to perish? Men and women were mostly correct in predicting their partner’s agreement to consenting to posthumous assisted reproduction (~75%), and agreed at the same rate (75%), but that left many disagreeing or not able to predict their partner’s choice.¹²

Another possibility is that a couple has had a successful in vitro fertilization (IVF) cycle and been able to freeze supernumerary embryos. If the father dies, should his wife or partner be able to have his embryo(s) transferred? The courts have already ruled that following a relationship breakdown, such embryos cannot be used. If the mother dies, would the husband or partner be permitted to use a surrogate to carry the pregnancy? How long could the gametes or embryos be held in storage? Although this may be for extended periods for a living donor or couple, provided storage fees are paid, what would be the situation if the donor had died? Would the potential recipient be responsible, or would that determination not be feasible?

The International Federation of Fertility Societies (IFFS) publishes a triennial survey of the laws and regulations governing reproductive practices.¹³ In 2021, 69 countries responded. 20 had regulations addressing posthumous reproduction, while 49 did not; they were often at different administrative levels of society. Details are available on immediate collection of sperm and oocytes, delayed posthumous sperm insemination, insemination of frozen and thawed oocytes, and transfer of frozen and thawed embryos according to the conditions prevailing in each responding country.

Sperm and later egg and embryo cryopreservation allowed the possibility of sustaining the life of gametes beyond the span of an individual. These technical developments made posthumous reproduction feasible. Ethical, legal, and administrative issues remained, however. These are different in various cultures and jurisdictions, so responses and practices will continue to develop.

References

1. Human Fertilisation and Embryology Authority. “UK fertility regulator.” Accessed March 8, 2023. https://hfea.gov.uk/.
2. R v. Human Fertilisation and Embryology Authority, ex parte All England Law Reports 1997;2:687-704.
3. O’Donnell, Kath. “Legal conceptions: Regulating gametes and gamete donation.” Health Care Analysis 2000;8:137–154. doi.org/10.1023/A:1009498427921.
4. Amatao, Paula, et al. (Ethics Comm Amer Soc Reprod Med.) “Posthumous collection and use of reproductive tissue: A committee opinion.” Fertil Steril 2013;99(7):1842-45. doi:10.1016/j.fertnstert.2013.02.022.
5. Hashiloni-Dolev, Yael. “Posthumous reproduction (PHR) in Israel: Policy rationales versus lay people’s concerns, a preliminary study.” Culture Med Psych 2015;39(4):634-50. doi:10.1007/s11013-015-9447-6.
6. Douglass, Alison, and Ken Daniels. “Posthumous reproduction: a consideration of the medical, ethical, cultural, psychosocial and legal perspectives in the New Zealand context.” Med Law Int. 2002;5(4):259-79.
7. Pennings, Guido, et al. “ESHRE task force on ethics and law 11: Posthumous assisted reproduction.” Hum Reprod. 2006;21(12):3050-53. doi:10.1093/humrep/del287.
8. Maddox, Neil. “Children of the dead: posthumous conception, critical interests and consent.” J Law Med. 2020;27(3):645-62.
9. Benshushan, A., and JG Schenker. “The right to an heir in the era of assisted reproduction.” Hum Reprod. 1998;13(5):1407-10. doi:10.1093/humrep/13.5.1407.
10. Daar, Judith, et al. (Ethics Committee of the American Society of Reproductive Medicine.) “Posthumous retrieval and use of gametes or embryos: An Ethics Committee opinion.” Fertil Steril. 2018;110(1):45-9. doi:10.1016/j.fertnstert.2018.04.002.
11. Batzer, Frances, Joshua Hurwitz, and Arthur Caplan. “Postmortem parenthood and the need for a protocol with posthumous sperm procurement.” Fertil Steril 2003;79(6):1263-9. doi:10.1016/S0015-0282(03)00384-4.
12. Nakhuda, Gary, Jeff Wang, and Mark Sauer. “Posthumous assisted reproduction: A survey of attitudes of couples seeking fertility treatment and the degree of agreement between intimate partners.” Fertil Steril. 2011;96(6):1463-6. doi:10.1016/j.fertnstert.2011.09.018.
13. “Chapter 8: Posthumous Reproduction.” International Federation of Fertility Societies’ Surveillance (IFFS) 2022: Global Trends in Reproductive Policy and Practice, 9th Edition. Steven Ory et al, eds. Global Reproductive Health 2022;7(3):e58. doi:10.1097/GRH.0000000000000058.