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."
The rights of the dead almost always supplant the rights of the living.
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.
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."