Brigham Clinical Ethics Case Review is published by the Brigham’s Office of Clinical Ethics. Each issue highlights a Brigham case that posed an ethical problem for a patient, family members and/or caregivers, leading to an ethics consultation and Brigham Ethics Committee discussion. Please note that because cases are based on actual ethics consultations, some details may have been altered to protect patient privacy and confidentiality.

How Should I Respond to a Daughter’s Request for Sperm Retrieval from Her Dying Father?
Ethical Concerns Around Postmortem Sperm Procurement

This issue of Brigham Clinical Ethics Case Review highlights a case in which the daughter of a dying patient asked the treatment team to procure his sperm for future reproductive use.

The Case

The patient, an elderly man whose wife had predeceased him, was admitted to the ICU following a stroke at home. In his critically ill condition, he was unable to make his own health care decisions. The attending physician advised the patient’s daughter, his health care proxy agent, that he was unlikely to survive much longer.

Later that day, the daughter informed the attending that she wanted to preserve some of her father’s sperm for future use, as a male heir would be required for their family to retain the patient’s estate in their home country. The daughter did not provide any evidence of the patient’s own wishes in this regard, nor did she specify for whose use the sperm was intended. Uncertain how to respond, the attending paged the Ethics Service for advice.

Discussion

Postmortem sperm retrieval (PSR) involves harvesting sperm from a recently deceased man for cryopreservation (preservation by cooling to very low temperatures) and future use in assisted reproduction. Retrieval can also occur during the dying, or “perimortem,” phase.

Requests for PSR are proliferating, as advances in assisted reproductive techniques expand the possibilities for procreation. In the absence of legislation specifically addressing this practice, hospitals and clinics have largely been left to establish their own protocols and procedures based on ethical considerations. Many—including the Brigham—have looked to professional societies and fellow hospitals for guidance.

Postmortem sperm retrieval can be fraught with ethical concerns, predominantly around principles of reproductive autonomy and informed consent. Our society views the right of individuals to control their own reproductive fate as a fundamental interest, deserving of the highest protections. As the Ethics Committee of the American Society for Reproductive Medicine (ASRM) notes in its position paper on this subject, the interest in reproductive control remains ethically significant, and should continue to be respected, even after death (ASRM Opinion 2013).

To protect a deceased man’s enduring right to reproductive autonomy, before undertaking PSR it is important to establish that the creation of a child posthumously is consistent with his previously expressed wishes. The best evidence of such intent is a clear record of prior informed consent to posthumous sperm procurement and reproduction. If written documentation from the deceased authorizing the procedure is available, PSR is considered ethically justifiable (ASRM Opinion 2013).

The party with the strongest moral basis for requesting PSR is the surviving spouse or life partner, whose desire to have a child with the sperm of the deceased “may be viewed with sympathy” considering their shared intention to have a family together. When the request comes from other family members—for example, parents wishing to preserve the decedent’s legacy or produce grandchildren—the ethical justification is diminished because no joint reproductive effort can be said to have existed (ASRM Opinion 2013).

After receiving the attending’s page in this case, the Brigham’s Ethics Service reviewed professional guidelines and contacted Risk Management and the Office of General Counsel, both of which counseled against sperm banking without the patient’s prior written consent. The Ethics Service subsequently convened an ethics consultation with the treatment team and, drawing on this advice and the ASRM Ethics Committee recommendations, explained that PSR would not be ethically justifiable in this case because there was no written documentation of the patient’s prior consent to the procedure and the request was not being made by a spouse or life partner. The ethics consultants then met with the patient’s daughter to inform her that the team would be unable to fulfill her request on ethical grounds. The daughter accepted this decision and the patient died several days later.

Consideration of this case prompted the Ethics Service to initiate the process of developing a Brigham and Women’s Hospital policy on PSR. The policy was reviewed and approved by the Medical Staff Executive Committee and went into effect last May. The policy provides that the following criteria must be met for perimortem/posthumous sperm retrieval to be considered ethically justifiable:

  • Evidence of the dying or deceased man’s written consent for perimortem sperm retrieval must be presented before such a request can be fulfilled;
  • The dying or deceased man’s spouse or life partner must be the person to both request and use the sperm; and
  • Should a request for perimortem/posthumous sperm procurement be made, a formal ethics consultation should be obtained.

The full text of Brigham Policy 5.5.13: “Perimortem/Posthumous Sperm Retrieval” is available on the Ellucid system and can also be accessed through the link provided below.

Supporting Policy and Literature

Brigham Policy 5.5.13: Perimortem/Posthumous Sperm Retrieval

Ethics Committee of the ASRM. Posthumous collection and use of reproductive tissue: a committee opinion. Fertil Steril. 2013:99(3);1842-1845

As updated by:

Ethics Committee of the ASRM. Posthumous retrieval and use of gametes or embryos: An Ethics Committee Opinion. Fertil Steril. 2018:110(1):45-49

We welcome your feedback about Brigham Clinical Ethics Case Review! Please email your questions and/or comments to BWHEthicsService@partners.org. To learn more about ethics consults, visit the Office of Clinical Ethics website.

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