The Rights of the Deceased in Posthumous Procreation?

The Rights of the Deceased in Posthumous Procreation?

Losing a loved one is not only a sad and traumatic time, but requires a significant amount of thought as to not only his or her estate, but what his or her death means for your future. If you were the recent spouse of the loved one, maybe you foresaw a future of your life in your home, with your children, and the years of happiness and hard work that marriage would bring. However, what if someone told you that you could still have this future and a family, even if your spouse could not be there?

For decades, doctors have been able to extract a deceased’s biological DNA so that his spouse (or other family members) may still be able to procreate through the use of in vitro fertilization (IVF). The science has proven to work; but should your family members be permitted to use your sperm to create a child, even if you can no longer give consent?

What is Post-Mortem Sperm Retrieval (PMSR)

Post-mortem sperm retrieval (PMSR) is a process by which doctors may extract sperm from the deceased. To be viable, the procedure must take place no later than 24 hours after the man has died. If the sperm is found to be viable, fertilization may take place through IVF. The success rate is unaltered if the genetic material is recovered from a living or dead donor. Any issues resolving PMSR, however, must be decided immediately as viability changes with the passing of time.

The Ethical Issues of PMSR

The ethical issues come down to two competing issues: what is ethically/legally right in the best interest of the deceased and can and should the court interfere with the family’s right to procreate.

PMSR around the World

Many countries have cracked down on post-mortem sperm retrieval (PMSR). PMSR is illegal in France, Germany, Sweden, among other countries, regardless of whether the deceased has given consent for its use. In Israel, extraction may occur but it is up to the judge to determine whether or not its use is permitted.

PMSR in the United States

The United States, however, still has very little regulation as to PMSR and it is generally up to the institution to decide how it wants to handle PMSR. It was estimated that 60 percent of institutions did not have any type of PMSR procedure and provided very little guidelines as to when and where this procedure may take place. This type of extraction is generally governed by the rules that regulate organ donation. Generally, the Universal Anatomical Gift Act of 2006 provides that next of kin may consent to the recovery of organs and tissues unless the deceased has expressly forbidden it, or there is evidence showing that the deceased would not have consented.

Legal and Ethical Considerations of PMSR: Should it be legal in the US?

In an attempt to establish some form of guidelines, nine American institutions created a working guideline to help identify key elements that need to be established before PMSR is considered. The following are factors that are (or should be) considered, especially when institutions are attempting to avoid liability:

  • Who can bring a request for PMSR? Should it be the spouse or the parents? What if the spouse and parents have conflicting interests?
  • What type of evidence needs to be produced to show that the deceased would have consented?
  • If evidence exists that the deceased would have consented, to what extent can it be used? How many children can and should be created? Under what circumstances would the deceased have these kids? Is it in the best interest of the child (or children) that their family is created in this way?
  • Finally, how do these children affect the deceased’s estate and probate rights?

Experienced Family Law Attorneys in Mount Pleasant, Charleston Area

Family rights are extremely important in the United States. The right to procreate is fundamental in the United States and is protected. To what extent, however, should the right to procreate be protected? Family law issues regarding a deceased and his rights are highly complex and are still in its infancy; an experienced family law attorney like the attorneys at Klok Law Firm LLC can help elaborate further on the ethical and legal issues surrounding PMSR. Contact Klok Law Firm LLC today for an initial and confidential consultation.