Use of dead man’s sperm raises ethical issues

The birth of a baby girl to California widow Gaby Vernoff in March was a blessed event for her and her family, but for many medical ethicists, it was an ominous warning about the need to establish ethical medical policies that keep up with advances in reproductive technology.

Last month, Vernoff became the first woman in history to give birth to a child conceived with sperm collected after the father’s death. Urologist Cappy Rothman, MD, medical director of the California Cryobank and the Center for Reproductive Medicine at Century City Hospital in Los Angeles, surgically retrieved sperm from the body of Vernoff’s late husband Bruce almost 30 hours after he had died in a Los Angeles Hospital.

Conceived from sperm frozen and stored after this event, the Vernoffs’ daughter was born four years after her father’s death.

Although the case made headlines across the country — including numerous newspaper and magazine articles and a segment on ABC’s newsmagazine 20/20 — such technology and practice apparently isn’t new. Rothman himself says he has performed similar procedures 12 times since 1978, although none of the other families decided to use the sperm.

Protocol developed by medical society

According to a March 28 article in the New York Times Magazine, the Birmingham, AL-based American Society of Reproductive Medicine has developed a protocol on ’posthumous reproduction” to guide clinicians. Additionally, a 1997 survey by the University of Pennsylvania Center for Bioethics found that 14 clinics in 11 states had retrieved sperm from dead patients on behalf of grieving loved ones.

What are the ethics of ’posthumous reproduction?” Should physicians and hospitals take part in creating potential human life from people who have died? Does retrieving a man’s sperm without his consent and using it to create a child violate his reproductive rights? How should hospital physicians and administrators respond when receiving such a request?

The issue, obviously, has no clear-cut answers.

Many medical ethicists, interviewed by Medical Ethics Advisor and quoted in the numerous articles on the Vernoff case, say that such a procedure cannot be performed on patients without their explicit indication that it would be in accordance with their wishes.

’I think, ethically, that you should not do it at all unless you have some proof of consent,” states Michelle Frelich Appleton, a professor of law specializing in family and medical issues at Washington University in St. Louis. ’In the best case, you would have some written document indicating that they wished to procreate after death.”

Appleton cites the case of an attorney in California who committed suicide but willed to his girlfriend sperm that he had frozen, giving explicit instructions that he wanted her to use it to become pregnant.

’He clearly intended for her to have his children after death,” she says. ’We can say that there are all kinds of ethical reasons why he shouldn’t be able to exercise that choice, but at least his intent was clear.”

First concern is patient’s consent

As providers of health care and as clinicians, the facility and its personnel have a duty to treat the patient, Appleton says. So, the issue of consent to the procedure should be their primary concern. ’The patient could put that in some living will or power of attorney,” she notes. ’The problem is that we are not used to thinking about procreation in those terms, but I think we should start thinking like that. I think that is the better way.”

With a sudden death, however, as in the Vernoffs’ case and many others, she acknowledges, determining true consent would be difficult. ’The surviving widow or family members could present a particularly sympathetic case, and I suppose you could argue that the person is dead, that person no longer has reproductive rights, so you could let the widow or family members have complete control over their reproductive destiny,” she explains.

’I just don’t see it that way,” Appleton says. ’Even in an effort to honor what we think the patient’s wishes might be, we may actually be violating that individual’s reproductive choice.”

Although he agrees that determining the patient’s own wishes is key to an ethical decision, Mervin H. Needell, MD, medical director of the Foundation for Bioethics and Philosophy at the University of Miami, says that in some cases the family’s wishes might be compatible with acting in the patient’s interest, even without that patient’s express consent.

’I think you have to consider this issue in terms of how would you decide to perform an invasive procedure on a patient who, being incapacitated, is unable to give consent,” he says.

Using that scenario as a framework, Needell says physicians would look to a ’proper surrogate,” such as a wife or family member, who would be empowered to make other medical decisions for the patient. ’The decision that the surrogate makes in this situation has to be made according to an ethical hierarchy,” he says.

First, the surrogate should be asked whether the patient ever made any specific statements indicating a preference for the use of his sperm after death. ’If we have that information, then, of course, you should follow his wishes. If we don’t have that specific information, then we have to move on to substituted judgment,” he says. ’This means that we have someone who says, ‘I knew him well, and given the circumstances in which we want to take semen from him, he would be willing to do it.’”

Keep donor’s best interests in mind

Barring a person who can make that kind of statement, the clinicians must decide to proceed based on the patient’s best interests or what they think a reasonable person in that situation would do. ’If the patient is dead, then he has no interest. So, it falls to what a reasonable person would do,” Needell says. ’If that person were alive and competent, would it be a reasonable thing for him to decide?”

Needell acknowledges that this methodology does not take into account the legalities involved or the issues of who would be responsible for any child that is created as a result of the procedure. Instead his focus is on the ethical considerations of the caregivers.

’The procedure I have outlined, that is how I ethically think it could be done,” he explains. ’I think, given specific circumstances, that it would be reasonable to make a judgment that this would be a proper and correct thing to do.”

Often, because it is the family making the request for the procedure, and essentially the family is called upon to determine the patient’s wishes, there may be an inherent conflict, he says. ’The critical decision is the impact on the autonomy of the individual. However, in considering the autonomy of the individual, you would want to take into consideration the family’s grief and how this would matter to the individual. It would bring the family and their wishes into the decision making, but only secondarily.”

Each patient’s situation would be different and should be considered individually. ’There is a lot more uncertainty to the specific cases than to the global procedure [for considering the decision],” he says. ’You have to weigh individual circumstances and find out whether they fit or not.”

Additional reading

Andrews LB. The Sperminator. New York Times Magazine. March 28, 1999.


Michelle Frelich Appleton, Washington University, One Brookings Drive, St. Louis, MO 63130-4899.

Mervin H. Needell, MD, Medical Director of the Foundation for Bioethics and Philosophy, University of Miami, Coral Gables, FL 33124. Phone: (305) 243-5723.

3. Retrieving sperm from deceased donors, or using sperm collected prior to death, should not be done, according to Michelle Frelich Appleton, professor of law at Washington University in St. Louis, unless:
A. Proof of consent is documented.
B. Family members request the procedure.
C. Patients request it verbally before death.
D. All of the above.

4. According to Melvin H. Needell, MD, medical director of the Foundation for Bioethics and Philosophy at the University of Miami, all that’s needed for consent to posthumous sperm collection is:
A. A proper surrogate.
B. Decisions made according to an ethical hierarchy.
C. Wishes made by the donor before death.
D. All of the above.