When TV news reporter Dylan Lyons was killed in Florida at the beginning of this year, his fiancée was devastated. She knew that Lyons, who had dreamed of having children with her, would have wanted his legacy to continue, so she reached out to a urologist who was able to retrieve sperm from Lyons’ body. Now, Lyons’ fiancée is planning to go through IVF to conceive his child.
Around the world, such stories, about grieving women fighting to use their dead husband’s sperm to get pregnant, occasionally crop up. Conservative thinkers condemn the technology for being “unnatural” and for bringing children into “fatherlessness.” Others find the topic uncomfortable to discuss because it mixes sex and death. Still, experts say that requests for the practice, first reported in a 1980 case study, have increased over the years, although there aren’t hard statistics. The method itself is simple—usually involving a small surgical procedure—but those requesting the practice face many ethical barriers.
In the US, many institutions follow a 2018 set of guidelines from the Ethics Committee of the American Society for Reproductive Medicine. The ASRM guidelines are straightforward about some issues: If there is clear, informed, written consent from the deceased regarding their wishes for postmortem sperm retrieval (PMSR), the practice is ethical. Likewise, if the deceased made clear they did not want the practice performed, any requests will be denied. There is also a clear preference for spouses over other family members making this request.
But it’s rare to have “explicit donor permission,” according to David Magnus, director at Stanford Center for Biomedical Ethics. No one expects to die in unforeseen circumstances. And though it’s standard to ask folks for preferences regarding organ donation in the event of death, people are not usually asked about PMSR. Unless a couple had taken part in a fertility program in which they had to explicitly declare their intentions for their genetic material after death, it would be the exception that someone could provide hard proof of consent.
Another barrier is the typical cut-off point for the procedure: 24 hours after the time of death. However, a recent clinical report from the University of Miami found that sperm could be viable for up to 106 hours (more than four days) after death. With this development, PMSR could become an option for more people, thus raising more ethical questions, including how we can determine implied consent and whether those in the depths of grief can make such monumental decisions.
In 2004, Gulam Bahadur, a consultant clinical andrologist and lab director based in the United Kingdom, described posthumous reproduction as one of “the most challenging, difficult and sensitive [ethical conundrums encountered] in any field of medicine, entailing complex moral, ethical and legal concerns.” Like any other decision involving the dying and dead, it’s never one that should be taken lightly.
Most societies agree that the dead should be treated with respect and that we should act in good faith to carry out what the person would have wanted. This is evident in the care taken with corpses, the existence of wills, and the honoring of “deathbed” wishes. Because protecting the interests of the dead is so important, some people doubt there can ever be implied consent when it comes to posthumous choices. In fact, according to the ASMR, jurisdictions that prohibit the practice “regard the retrieval as an impermissible violation of the body of the deceased,” much like other crimes that might be committed against the dead.
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Critics argue that even if someone wanted to have biological children—for instance, if they were actively trying to have children before they died—it can’t be assumed that they would have wanted to become a posthumous parent. As Jason Hans, professor in family sciences at the University of Kentucky, puts it, some argue that “posthumous parenthood does not provide the experiences that make parenthood meaningful while living.” By being dead, the deceased father has no way to benefit.
But, crucially, on an experiential level, they also have no way of being subjected to any harm. With this view, we can ask, as the ASMR itself does, “How can [the dead] have a stake in anything? How can they be harmed or benefited?”
Though this accounts for the fact that posthumous parenthood isn’t inherently unethical, we must still try to work out whether PMSR is something a person would have wanted, or at least something they wouldn’t have objected to. The best way to do that, according to both Magnus and Hans, is to trust the ones who were closest to them.
Magnus says that this can be done using best practices from other forms of end-of-life care. Clinical teams often make end-of-life decisions without documentation about what the patient would have wanted; in only 20 to 30 percent of cases will patients have left advance directives. Still, doctors allow the families to render subsidy judgment, saying, “You know him better than we do at the hospital. We've never met this guy before he showed up,” Magnus says.
“It's not obvious that the decision about whether to have a kid is necessarily weightier than the decision of whether to live or die,” argues Magnus. “Shouldn't we allow the loved ones to make that call under those circumstances?” Hans agrees, adding that “the default assumption can and should be that the deceased would consent to a surviving spouse’s request for PMSR.”
In addition, as thinkers like Julian Savulescu have argued from a utilitarian perspective, we should presume consent in these situations, because it will benefit the partner who deeply wants it and because it will benefit the child if we think that it’s better for them to exist. As Hans says, “Procreation is viewed as a fundamental legal right by the US Supreme Court,” so this shouldn’t have to change when one parent, whose consent we would be able to assume, is no longer alive.
Another consideration might be around the life of the future child, particularly worries that it’s unethical to bring fatherless children into the world or unfair to bring children into the world with so much expectation. However, single mothers can and do often partake in assisted reproduction with a sperm donor. Plus, many children are born with deceased parents—when they die before, or shortly after, they’re born. The same argument isn’t made that these children shouldn’t exist or that their life isn’t worth living.
Though the recommended 24-hour time frame for PMSR could change with the University of Miami’s case report, we must still question whether it’s ethical to require such a momentous decision to be made in the few days after death. When the dignity of the body in death is still generally regarded as absolute across societies, how do people deal with the psychological aftermath of beginning such a process? Crucially, the ASRM dictates that spouses wait at least a year before using the sperm to allow “adequate time for grieving and counseling.” Since the surviving family must wait a year to use the sperm anyway, they’ll avoid making the decision to conceive the child in the midst of grief and will have preserved at least the option to use it.
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More left-leaning objections to the practice of PMSR include the argument that the practice is fixated on genetic lineage and relies too much on notions of the traditional, heteronormative family. It also can’t go unnoticed that only a very specific type of person—a wealth person—would be able to go through the process. (Health insurance often doesn’t cover generic fertility treatments, so it undoubtedly wouldn’t cover such an avant garde approach, and there are hefty storage costs for the cryopreserved sperm.) However, both of these qualms could apply to any active attempt to have biological children, as well as the inequity of fertility treatments; they don’t raise unique issues for PMSR.
Interestingly, Ranjith Ramasamy, a medical doctor and author of the clinical report at the University of Miami, says that following most cases of PMSR, most spouses will not go on to use the sperm in assisted reproduction. “People move on … the primary reason they do this isn’t really to procreate but to have closure and at least a choice,” Ramasamy said.
PMSR shouldn’t be allowed without deep consideration—there would be clear breaches of ethics in cases where the deceased evidently wouldn’t have consented to it. But, in many instances, it’s ethically permissible and should be allowed, both as a way of people exercising their rights to conceive and procreate as they wish, as well as their right to grieve. Who are we to decide how the grieving grieve? If the dead can’t speak, those who knew them most intimately would be best placed to decide on their posthumous future.“It's a piece of the grieving process,” Magnus adds. “People are really just grasping to hold onto their loved one in any way.”