Posthumous Reproduction

Posthumous or “after death” reproduction is now an issue to be dealt with by individuals and couples who have cryopreserved or frozen their genetic material at their fertility clinic. It is also relevant if you die suddenly and unexpectedly and it is your wish that your eggs or sperm be used so your spouse or partner (or if necessary surrogate) can give birth to your children after your death. If you have frozen your sperm, eggs, or embryos, you should be concerned with what will happen to your genetic material at your death. Divorce and the disposition of cryopreserved genetic material is an entirely different topic I will cover in another blog post soon.

Your fertility clinic will require that you sign a cryopreservation or storage agreement with them. This agreement is required so the clinic knows what disposition to make regarding your frozen genetic material if you die, separate or divorce. Regarding disposition at your death, your choices are you can direct that your gametes and/or embryos be destroyed, be donated to an individual or couple for reproductive purposes, be donated for scientific research or be donated to a specific individual or individuals.  You may wish to prioritize the order of what you want done with your frozen genetic material at your death.

It is important that you take your time in completing the clinic’s storage agreement. It should be consistent with your Will and consultation with an attorney experienced in assisted reproductive technology (ART) law and/or estate planning is advisable. Because frozen genetic material is considered a special class of personal property, your Will controls its disposition and it should direct in detail what you want done and how regarding your frozen gametes. The instructions in your Will should be consistent with the storage agreement you complete. 

In addition, you can also enter into a parental rights agreement with your partner or spouse, regarding the disposition of your genetic material most particularly frozen embryos. Most states have no laws dealing with posthumous reproduction.  There are some reported case decisions but there is no uniform body of law since the decisions are inconsistent. There is also no applicable federal law.   

The other side to posthumous reproduction concerns the retrieval of gametes from the decedent’s body shortly after death. To help reduce legal complications, anyone who believes their gametes should be retrieved from their body shortly after death should complete detailed written instructions so that it is clear this is what you want. This is especially important if you are terminally ill or suffering from a life-threatening illness or injury. These written instructions must be immediately available as should a copy if not the original of your signed and notarized Will. Retrieval of sperm must be completed within 24 hours so the retrieval phase is extremely time-sensitive.   As a rule, next of kin, will need to consent to retrieval. Your personal representative nominated in your Will must also be briefed so he/she knows what to do at your death. The Uniform Anatomical Gift Act (the “Act”) in your state is relevant to retrieval because it arguably authorizes your agent (if any) or next of kin to consent to the donation of your human tissue and organs.  Gametes by definition are human tissue. However, the Act was not written to deal with posthumous reproduction issues. 

You will also need to locate a cooperative urologist who can accomplish the retrieval quickly. Some and perhaps many health care providers will not want to cooperate with the post death retrieval of sperm or eggs. In this case, you will need legal counsel to work with you very quickly to obtain an emergency court order directing retrieval. Usually the local probate court will be involved. A recent case in Denver which the media reported on, concerned the unfortunate death of a young man whose girlfriend sought the retrieval of his sperm so she could carry his children. The decedent had sent her text messages about what he wanted done with his sperm if he died, but nothing else in writing existed regarding the decedent’s wishes. In this case, the decedent’s parents were his next of kin. They were devastated at his death and not able to actively assist the girl friend to facilitate the retrieval of the decedent’s sperm.  

Other posthumous cases concern accident victims, victims of crimes and those who are terminally ill.  These cases are all fact specific and it is impossible to predict if the health care provider in possession of the body will cooperate with the retrieval. It is possible if not likely they will be more cooperative with the decedent’s spouse than romantic partner. This is a complex area of the law still developing since the science almost always outpaces the law. Retrieval must occur very quickly if the gametes can be used for productive purposes.  Consultation with knowledgeable and experienced ART counsel is critically important to facilitate the retrieval of gametes post death.  

Advanced planning is highly recommended. Schedule your free consultation with Attorney Husson today!

Attorney Husson presented this topic to the medical staff, The University of Colorado, Department of Obstetrics & Gynecology, Advanced Reproductive Medicine Division, June 14, 2017.