In the late 1970s, urologist Cappy Rothman performed the first post-mortem sperm retrieval. Before this, Rothman had been extracting sperm from men living with infertility, work that gave him a detailed knowledge of male reproductive anatomy, experience in sperm extraction and preservation, and contacts who knew he was interested in assisting men with reproductive issues. He had quickly become known in Los Angeles.
"Within six weeks of practice, I was booked up for six months," he recalls. Then, when a prominent politician's son was left brain-dead after a car accident, "I got a call from the chief resident of neurosurgery at UCLA and he said, 'I have a strange request. [This politician] would like to have his son's sperm preserved. Could you do it?'"
Rothman came up with three options: administer a drug that would make the entire body convulse, hopefully inducing ejaculation; remove the man's reproductive organs and go looking for sperm; or (because the brain-dead man still had some bodily functions) manual stimulation. "I remember there was a pause at the end of the phone... [the neurosurgeon] says, 'Hey doc, I've been asked to do a lot of things as chief resident of neurosurgery, but if you think I'm going to jerk off a dead man, you're crazy.'"
They decided on the second option. "It almost felt like Michelangelo," says Rothman, "being alone, in an OR, with the male anatomy. It was an education." He published a paper on this first case in 1980.
Post-mortem sperm harvesting is very much "a thing"
The first live birth resulting from a post-mortem extraction wasn't until 1999. Gaby Vernoff gave birth to baby Brandalynn from sperm extracted by Rothman 30 hours after her husband died. According to Gaby, the pregnancy took with the last vial of sperm. In the high-profile 2009 legal case Vernoff v. Astrue, Gaby went to court seeking social-security benefits for her posthumously conceived child. The courts found that Brandalynn was not entitled to survivors benefits because she was not her father's dependent at the time of his death, as required by California law.
In Arizona, though, courts had decided in 2004 that children conceived after their father's death were entitled to benefits. There, unlike California, biological parenthood is sufficient for legal parenthood.
Today, Rothman is co-founder and medical director of California Cryobank, the largest sperm bank in the US. He estimates that the practice has performed close to 200 post-mortem sperm extractions. Most of these are recent, as the procedure has become more common. Its records show just three extractions in the 1980s and 15 in the 1990s. But from 2000 to 2014, they performed 130: an average of just under nine a year.
And Rothman's is by no means the only clinic that offers this service. Recent statistics are scarce, but surveys of US fertility centers in 1997 and 2002 found increasing numbers of requests for post-mortem sperm retrieval, although from a very low base. According to Jason Hans, a professor in the Department of Family Sciences at the University of Kentucky, "The increasing prevalence of hospital and clinic protocols, legal cases, scientific and popular press articles also suggests an increase in requests for the procedure but, admittedly, may also represent increasing awareness rather than an increasing number of requests."
Whatever the specifics, post-mortem sperm retrieval is very much a thing.
What makes sperm special?
Our bodies, it seems, die not all at once, but in parts. Early scientific literature advises doctors to extract and freeze a sperm sample within 24-36 hours of death but case studies show that under the right conditions, viable sperm can survive well beyond this deadline. Rothman tells of a man who died kayaking in cold water whose sperm were in good shape a full two days later. And in April 2015, doctors in Australia announced a "happy, healthy baby" born from sperm removed 48 hours after the death of the father.
The sperm don't have to be zippy and perfect, just alive. Though swimmers freeze and thaw much better, sluggish sperm can still create a pregnancy. All it takes is a single sperm injected into an egg.
We still can't decide on what sperm are or are not.
But first someone must retrieve it. There are several main ways that sperm are harvested, including needle extraction. As the name suggests, this method involves inserting a needle into the testis and drawing out some sperm. It's often used in live patients but, because minimizing invasiveness does not matter the same in dead people, doctors tend to use other methods post-mortem.
One of these approaches is to extract the testis or epididymis surgically. As the epididymis is where sperm go to mature, this tissue is a popular target. The doctor surgically removes the epididymis and milks it or otherwise separates the sperm from the tissue. Alternatively, the epididymis or a piece of testicular tissue can be frozen whole.
A fourth option is rectal probe ejaculation...
As the sperm in the vas deferens are fully mature, it is also possible to extract them from there. The surgeon may make a slit in this long, flexible tube and draw out fluid with a needle (aspiration) or flush the tube with a solution (irrigation). Mature sperm are better able to move, find an egg, and penetrate it to complete fertilization.
A fourth option is rectal probe ejaculation, also known as electroejaculation. The doctor inserts a conductive probe into the man's anus until it is next to the prostate. A jolt of electricity causes a muscle contraction that stimulates ejaculation of sperm through the usual channels.
Interestingly, this technique was developed for, and is still widely used in, animal husbandry (for bulls, ferrets, leopards, elephants, and hippopotamuses, among others). Because it does not require intact reflexes, it is also used for men who have spinal injuries.
It's more complicated than performing the procedure
But just because we know how to extract sperm after death, there is no assurance that someone will be given access to the procedure should they request it. Martin Bastuba is founder and medical director of Male Fertility & Sexual Medicine Specialists in San Diego. "There are no specific rules," Bastuba says. "Most of the laws on the books were written before this technology really existed."
Sperm, it is said, are special. Several recent court rulings have given sperm a legal status higher than that of blood, bone marrow, or organs. While those substances and body parts may be used to save life, sperm -- like eggs -- are often singled out for their potential to create life. In line with this view are positions such as that of the American Society for Reproductive Medicine, which argued in 2013 that, "In the absence of a written directive, it is reasonable to conclude that physicians are not obligated to comply with either request [for sperm extraction or use of extracted sperm] from a surviving spouse or partner."
Two hospitals across the street from each other might make opposite decisions.
Other opinions and legal rulings vary, though. In 2006, a judge who was interpreting organ donation policy ruled that organs, sperm included, can be gifted by a man's parents after his death, provided the man didn't previously refuse to make such a gift.
Because we still can't decide on what sperm are or are not, policies on post-mortem sperm extraction differ between hospitals, and are spotty and inconsistent. Many hospitals have no policy at all. In one review published in 2013 in the journal Fertility and Sterility, biomedical ethicists contacted 40 US hospitals about their post-mortem sperm collection protocols. Only six produced complete protocols, and 24 of them (60%) reported that either they either had no protocol or were unaware of one. This lack of policy may be because post-mortem sperm requests are rare. Unfortunately, when a request is made, the countdown has already begun and the hospital needs to be able to decide quickly.
This variability means that two hospitals across the street from each other might make opposite decisions. The 2013 Fertility and Sterility review concludes: "Many institutions do not yet have protocols in place, and those that are in place differ in important ways, including the standard of evidence regarding consent, wait time mandates before use of the sperm, method of sperm retrieval, and logistics of sperm storage and payment for the procedure."
Why not make universal guidelines?
The guidelines from the urology department of Cornell University have been adopted by New York Hospital and others formally and informally across the US. The guidelines include that the person requesting must be the wife of the deceased, that the couple must have been committed to having children together, and that the widow must wait at least a year to gain access to the extracted sperm.
The American Society for Reproductive Medicine's position is that post-mortem sperm requests should be granted only to surviving spouses or life partners, and that there must be a grief period prior to the sperm's use. Notably, it counsels that medical centers "are not obligated to participate in such activities, but in any case should develop written policies."
Because the patient is deceased, this makes it a little trickier...
If a doctor or hospital does not feel comfortable performing the procedure, often they can release the body to someone else. Bastuba has harvested sperm in the intensive care unit of a hospital, in a morgue, in a medical examiner's office, and even in a funeral home. But there has to be enough time so that the sperm will still be viable. Every decision made along the way must comply with individual hospital policy or the decision of its medical ethics board.
How do doctors and review boards weigh up decisions on post-mortem sperm extraction? "Like most issues in reproductive ethics or medicine in general, your big concerns are respecting the wishes and consent of the patient," says Elizabeth Yuko, a bioethicist. "In this case, because the patient is deceased, this makes it a little trickier, but you also want to respect the welfare of the future child... In a lot of cases you are guessing what the wishes of the deceased are."
There are other considerations too, including respecting the integrity of the dead man's body, his right to procreate, his right not to procreate, family members' rights to children or grandchildren, and alleviating the grief of surviving loved ones.
The rights of the dead almost always supplant the rights of the living.
Where a man has made his wishes clear, the rights of the dead almost always supplant the rights of the living. Why? Law professor Glenn Cohen says this question is almost as old as philosophy itself. There are two main camps. "One says... if you can't experience anything... how can we talk cogently about you being harmed?" he says. "The other camp says no, your life can go better or worse depending on what happens to you after you are dead." For those in this camp, he says, it's much more natural to think that banning posthumous retrieval is necessary to prevent harm to the dead.
People's thoughts around post-mortem sperm extraction seem to be opening up. In 2008, a survey in a southern state of the US found that "overall attitudes and... beliefs were primarily in favor of posthumous harvesting." And in 2015, ethicists in Australia published a commentary supporting a presumption of consent on the part of the dead man. They argue that there are plenty of benefits to both the deceased and his partner, and that the welfare of the living widow and the future child should be the primary concern.
But what about the children?
Some feel that posthumous sperm donation should be prohibited in part because it creates disadvantaged children who will never know their biological father. But many children never know their biological father, even if he is alive.
Julianne Zweifel, a clinical psychologist and ethics committee member at the University of Wisconsin School of Medicine and Public Health, disagrees. "Adults are making a decision to bring a child into the world with, by definition, a deceased parent because of adult needs and not sufficient concern is being paid to what is the impact on the child," she says.
According to Zweifel, research shows that people are not good at considering the welfare of those we do not yet know. Only once the child is a reality can we truly contemplate its welfare. "I don't think that the adults who would pursue this are really in a psychological place where they can genuinely, really, truly envision the concerns for the child."
There is also the impossibility of ever knowing one's father.
Zweifel worries about the burdens placed on a child created through loss. "That child can end up being what some people would call a memorial candle to the deceased person... That child can feel that people are looking for traits of the deceased parent in them and they can feel beholden to do that."
There is also the impossibility (rather than the mere unlikelihood) of ever knowing one's father. "When you come into the world with a father who is dead, he is never going to be reachable for you," says Zweifel. In her work with single mothers using sperm banks, she says that many choose identity-release donors so that their child can be in touch with the donor at a later time.
That said, in some countries, truly anonymous sperm donation can and does occur. And post-mortem sperm retrieval does not guarantee that the child will never have a father present, just that such a father will not have the usual genetic relationship. There have been cases in which children with genetic diseases or abnormalities seek but cannot find information about their sperm donor to help with treatments or future risks. A posthumously conceived child would at least have family history to look back on.
As for evidence, there is very little research on the possible psychological or health effects on a child conceived using sperm extracted posthumously. In 2015, an admittedly tiny study found that four children born from posthumously acquired sperm "have shown normal health and developmental outcomes."
Would you use a dead man's sperm?
After everything -- the illness or trauma that causes a man to die, the decisions around whether to try to get sperm, the processes and procedure involved if you do decide to -- the surprising thing is, most relatives never even use the sperm.
Rothman and Bastuba view post-mortem sperm extraction mostly as an act of compassion for those who are grieving. Of the roughly 200 procedures they have performed, says Rothman, the extracted sperm have only been used twice. "What I'm finding is most of the time it's done to [ease] the immediate grief of a family with a loss."
Bastuba agrees: "Like so many things in life, it's not the actual. It's the perception. This longing to try to keep a piece of someone who was so important. That, to me, is the true value." To his best recollection, no sperm from his post-mortem donors have produced a live child. In Israel, arguably one of the most permissive countries for posthumous reproduction, a 2011 article in Fertility and Sterility found that "none of the 21 post-mortem frozen tissue samples in our national sperm bank were requested for fertilization use during the past 8 years."
She has no regrets about the decision she made.
Even those who are strongly focused on posthumous reproduction may eventually move forward without it. A Texan mother, Missy Evans, gained media attention in 2009 for her attempts to use her deceased son Nikolas' sperm to create a child. "The reason that I felt so strongly about it," Missy says, "is because of what my son's desires were for his life." She won permission to harvest Nikolas' sperm, and sought and found willing surrogates in several countries.
But the process has been a struggle. Half the sperm vials have been used up and none of the embryos created have been viable. "It is so expensive and it is so time-consuming and it is so heartbreaking," Missy says. She is not sure if she will continue.
In the meantime, Missy has become a grandmother through her surviving son. "I spent so much time wreaking havoc with my family that these last few years we have spent just enjoying the granddaughter that I actually have," she says. "My son was super afraid that I had concentrated my efforts on having my other son's kid or kids that I wasn't going to bask in the joy of the child that was here and so I listened to him." Even so, she says that she has no regrets about the decision she made.
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This story, by Jenny Morber, originally appeared on Mosaic Science. It has been edited for length, and subheads have been added. Edited by Chrissie Giles, fact-checked by Lowri Daniels, originally copyedited by Tom Freeman.