Posthumous Sperm Retrieval
When I read the Supreme Court’s opinion on Social Security survivor benefits for children whose genetic fathers died before their sperm were used to fertilize the mothers’ eggs, I was reminded how fussy we can be about retrieving sperm from deceased men. (In the Supreme Court case, the man’s sperm had been frozen while he was still alive.)
Consider, for example, the difference between taking sperm and taking organs from a dead person. If a man did not object while alive, family members may freely authorize retrieval of the man’s heart, liver, kidneys and other organs after his death for transplantation. However, physicians and ethicists are much more skeptical about retrieving sperm from a deceased man without his prior authorization and for use by anyone other than a spouse. According to the ethics guidelines of the professional association for fertility specialists, a “spouse’s request that sperm or ova be obtained terminally or soon after death without the prior consent or known wishes of the deceased spouse need not be honored.”
Why the different treatment? What interest does a dead man have in taking his sperm to his grave? In the usual case, the decedent’s spouse wants to use the sperm to have a child, and that seems like a reasonable request. It’s difficult to see how the man would be harmed, and he might even have authorized her use had he thought about it while alive.
Is there any reason to limit sperm retrieval to spouses? What if the man died without a partner, and his sister wants to use his sperm for artificial insemination of her same-sex spouse? What if he is a celebrity (say James Dean), and some of his fans want to have a child with his sperm? As Guido Calabresi has argued, we get our body parts as a matter of fortune, so why let people keep them when they are no longer of any use to them? Glenn Cohen has discussed the interest of people in not having parenthood attributed to them involuntarily while alive, and our children can affect how we are viewed by others, so maybe the interest in controlling one’s legacy is sufficient to deny sperm to strangers. Still, it’s not clear that we should privilege such an interest if the person has died (and the estate is relieved of any support obligations).
(And thank you very much, Gerard et al., for the opportunity to blog as a guest this month.)