Assisted posthumous reproduction: certainly not a dead issue

It is striking that assisted posthumous reproduction (APR) remains as enigmatic today as it was when I entered fellowship 35 years ago. APR is yet another example of a controversial subject involving reproductive medicine that is more often presented and discussed in the popular press than reported in our peer-reviewed journals.

Over the years, I have been asked many times to assist in procuring, storing, and potentially using gametes from deceased individuals to create a life for a living one. Each case was memorable and uniquely tragic. Although most requests involved sperm retrieval, in other instances pleas for ovarian tissue banking occurred and, more recently, appeals to access cryopreserved oocytes and embryos stored without an advanced directive by the decedent were made. The technical skills required to obtain a specimen for later use is perhaps the easiest aspect on which to focus attention, but it deflects consideration from more difficult issues that must be confronted in the future.

Heartbreaking circumstances compel physicians to relieve the suffering of families dealing with unexpected loss. This is understandable because it is our empathic nature that attracted most of us to practice medicine. There is always a great amount of pressure placed on attending physicians to acquiesce to demands by distraught parties to “do something” and in most cases, “time is of the essence.” But, in so doing, there are often dangerous trespasses of medical ethics in play, and the moral tenets that define us as professionals should always be defended and safeguarded.

The central issue in almost every case of APR relates to the lack of informed consent. Owing to the typical circumstances surrounding death, a written, or even witnessed, advanced directive rarely, if ever, exists. It is “presumed” that decedents would have desired children, even after death, but we know that this presumption may not always be true. Nearly 10 years ago, I surveyed attitudes of couples undergoing infertility treatments regarding the posthumous use of gametes and found discordancy of opinion, often to the dismay of spouses who assumed they would have free access to their partners’ sperm or eggs after their untimely demise. Even several patients who had previously consented to organ donation indicated they would not sanction APR. Simply stated, it was clear to me then that not everyone wishes to donate reproductive tissue to conceive children after death.

Over the years, there have been attempts to create policy through opinions structured to guide practitioners faced with requests for APR. A prime example was when The New York State Task Force on Life and the Law convened in 1985 with a mandate to develop public policy on a host of issues, including those arising from the developing field of assisted reproduction. Despite years of work and the publication of an exhaustive treatise that served as a template for proposed public policy, its recommendations were never passed into law. Included in the “Analysis and Recommendations for Public Policy” publication were specific recommendations that, “New York should enact legislation prohibiting the retrieval of gametes from deceased persons or living individuals incapable of providing informed consent, unless the individual consented to the retrieval of gametes under the particular circumstances, in writing, when able to do so, or the person seeking to retrieve the gametes establishes extraordinary circumstances in a judicial proceeding” (1). It is noteworthy that “implied consent” is not mentioned and that the use of frozen gametes is sanctioned only for exclusive use of identifiable life-partners, in cases in which third parties are not involved. Concern over the well-being of children conceived under such extraordinary circumstances is also voiced, although the task force members conceded that there is a lack of evidence to validate their concerns.

The research presented in this issue of F&S Reports by Trawick et al. suggests that programs remain at best reluctant and, at worst, totally ill prepared to address requests for APR (2). Interestingly, results of the survey of Society for Assisted Reproductive Technology clinics in 2020 mirror findings reported by Kerr and colleagues more than 20 years ago (3). In many ways, little has changed, perhaps because of the relative infrequency of the request, but the need for clarity regarding APR policy is obvious to anyone who has dealt with it. Importantly, as our ability to retrieve, cryopreserve, and indefinitely store gametes, tissue, and embryos continues to improve, we will face demands that are gender neutral and likely to extend beyond grieving spouses and life-partners.

A recent sensationalized case involving the untimely death of a young West Point cadet, Peter Zhu, whose parents were successful in obtaining judicial approval to harvest sperm from him following his death, serves as a case in point. The parents had no advanced directive from the decedent and produced no compelling documentation other than their own conflicted testimony that he would have wished to father children after death, even in the absence of a life-partner willing to bear a child under such dire circumstances. The ruling by the New York Supreme Court allowed the parents to have dispositional authority over the use of the specimen. Therefore, his gametes remain cryopreserved until such time, if ever, that his parents decide to use the tissue to create grandchildren (4).

Requests, such as that of the Zhu family, have occurred throughout the history of reproductive medicine for a number reasons. Unfortunately, the circumstances at the time such requests occur are almost always unanticipated, emergently dire, and cloaked in profound grief. Directives rely on individuals acting on “inferred” or “implied consent,” believing that they know what the decedent would have wanted them to do under such egregious circumstance. The Ethics Committee of the American Society for Reproductive Medicine published an opinion in 2018 regarding APR, stating, “In the absence of written documentation from the decedent, programs open to considering requests for posthumous assisted reproduction should only do so when such requests are initiated by the surviving spouse or partner” (5). Specifically, the Ethics Committee does not endorse petitions for gamete procurement by parties other than life-partners, such as parents who wish to raise “legacy of the child” offspring as their own.

Although requests for APR are relatively infrequent, which the survey study by Trawick and colleagues points out, the practice remains as controversial as ever. Accordingly, when cases related to APR do occur, they are often reported in the news. Because the application of APR has strong societal implication it invites opinions from multiple disciplines, including medicine, law, religion, and ethics. There are strong sentiments voiced from proponents and antagonists alike.

Assisted reproduction has expanded the feasibility for childbearing beyond the immediate time of gamete harvest, largely secondary to the ability to effectively cryopreserve and store specimens and embryos. With enhanced technology and improved success rates following gamete, tissue, and embryo thawing, it is likely that more requests using every aspect of reproduction (e.g., sperm, eggs, testes, ovaries, and embryos) will occur. Therefore, the topic of APR is timely and important to focus on. Even small survey studies have relevance, given the paucity of experience.

What lessons regarding APR have I learned from 35 years of experience? First and foremost, the focus should not be on the question of “Can you?” but rather “Should you?” It is the experience, insight, and judgment needed to address the latter concern that separates us as professionals from technicians merely following protocols or guidelines. Second, decisions regarding APR require a thorough knowledge of the law as well as institutional and regulatory policies. While practitioners should demonstrate a willingness to communicate and collaborate with colleagues and grieving families and use their administrative skills to navigate the inherent conflicts that arise, they should understand and acknowledge their limited authority and appreciate the potential for downstream liability. Third, it is important to engage the many stakeholders who are commonly involved in these cases, such as individual family members of the decedent, private attending physicians involved in the care of the patient, organ-donor transplant teams, chief medical officers for the hospital, urologists who must perform a procedure, and tissue bank directors who must store the specimen and others, in a dialogue even when it may not be possible to accommodate every demand. In view of the complex issues and conflicting interests presented by these cases, it is prudent to have policies in place to address APR requests so that decisions can be made efficiently when needed.