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Note: Postings to Androlog have been lightly edited before publication.

In the event of the unexpected death of a male patient, urologists may be called upon by the patient's partner, spouse, or relatives to perform a sperm extraction. This procedure, known as cadaveric sperm retrieval, is clouded by controversy and, in some instances, lack of clarity regarding ethics and the law. Because these requests typically arise in an “urgent” or “emergent” fashion, it is important for urologists to consider the relevant associated issues and familiarize themselves with factors that could affect their response to the requesting party. Perhaps more importantly, as will be made clear in the series of exchanges below, the urologist must not neglect the considerations that should be afforded to the deceased male. He is the one party in these scenarios who typically has the least pronounced voice and representation. The following string of Androlog entries address the issue of cadaveric sperm extraction, with several urologists discussing their own experiences with this delicate issue.

The discussion began with an entry by Grace Centola, who noted:

  • We have had requests in the last few weeks from a partner of a deceased individual wanting to have sperm/testis tissue retrieved following unexpected death of the male. Many questions have come up, notwithstanding issues such as: Who signs consent (the wife, but what if they are divorced/separated; fiancée; parents; etc)? Do we need a copy of the marriage certificate? May the specimens be used by the legal spouse only? What if the next of kin allows the use by a sexually intimate partner (not a legal spouse)? [Is there a] grieving period of 1 year? In New York State, a court order is required to collect the tissue from a deceased person if the person had not signed a consent [form] prior to death. I would be interested in any information that Androlog members could provide, especially regarding the issues brought up here, and [in obtaining] copies of consent [forms] or information sheets if you are able to provide them.

In response to Dr Centola's request, Mark Dutras described his experience with two such cases:

  • I did two of these in the early/mid 1990s, which hit the front page of virtually every paper in the world, so we put a lot of thought into when we would consider doing this in the future. To be brief, if the deceased did not clearly specify their wish for postmortem reproduction, there is no further discussion. When these have gone to court, the decisions have tended to be based on evidence of HIS wishes or lack thereof. When we did do retrievals, we required a 1-year delay before proceeding (with use of the deceased male's gametes). In the widely publicized Maresca case, she agreed at 1 year that she could not proceed. The second case was made public reluctantly by the family, and they did proceed elsewhere with IVF for one cycle only, did not conceive, and did not proceed further, although there was plenty of material remaining and the other lab reported good embryo quality. This was with the support of both his and her families. The question of inheritance rights, social security benefits, etc, has been a state-by-state, case-by-case decision.

Jay Sandlow then weighed in:

  • In regards to Dr Centola's questions about cadaveric sperm retrieval, we require prior written consent by the deceased (something that is quite unlikely to happen), and this has been passed through our hospital ethics committee, as well as the lawyers. I will be interested to hear what others recommend.

Eberhard Nieschlag noted that, in Germany, the law prohibits the use of gametes from a deceased individual for the purpose of any kind of procreation:

  • In Germany the situation is clear and easy: By law, it is not allowed to use gametes from a dead person for any kind of procreation.

Arnold Belker noted that Institutional Review Board approval must be in place before performing such a procedure. He also stressed that an advanced directive is almost never present, necessitating involvement of a legal team and, in some instances, attainment of a court order to proceed:

  • There is a library full of literature on the legal and ethical aspects of posthumous sperm retrieval. You must have in place an Institutional Review Board (IRB) approval in advance of any consideration of performing such a procedure. The first requirement will be for someone from your institution to research the literature concerning the legal and ethical aspects and then present a synopsis to the IRB. One of the provisions of the consent form that I believe to be wise is a statement that the retrievedsperm or tissue will be quarantined for 1 year after retrieval. If the widow or other person later desires to use the sperm/tissue for reproductive purposes, then the person wishing to use the sperm/tissue will be required to undergo psychological counseling with a report from the psychologic counselor sent to the retrieval team and/or IRB for approval to release the sperm/tissue for reproductive purposes (or refuse release of the sperm/tissue if the counselor feels the recipient is not psychologically fit for insemination, IVF, or whatever is needed). Performing the procedure without an advanced directive, which for practical purposes NEVER exists, is problematic and, for me personally, depends on numerous circumstances peculiar to each particular case. The process of gathering information and setting up a posthumous sperm retrieval program is time consuming and, after much work on behalf of many people, just might not be approved at your institution or in your state or locale. I don't want to discourage you from setting up such a program but believe that you should initiate it with the above information available.

Arieh Raziel from the Assaf Harofeh Medical Center in Israel weighed in on this issue and commented that, in Israel, “Our impression is that technological advances lead the way today rather than ethical judgment.” He noted the following procedures, which are followed at his institution:

  • Data on postmortem sperm retrieval (PMSR) had been presented by me at the ESHRE conference 2007. The presentation described our “rich” experience coming from an active medical center in Israel. 1) Israeli Attorney General's guidelines (Rubinstein, 2003). 2) Freezing needs application made by the spouse (or partner of the deceased). 3) Future use of cryopreserved sperm is allowed only after court approval. 4) Proof of explicit or inferred consent of the deceased (perimortem or stored sperm). 5) Six-month quarantine period for bereavement. 6) The parents have “no say” concerning PMSR. 7) Sperm retrieval and freezing from unmarried person should not be allowed. The logic for this: Sperm retrieval should be attempted only when there is a reasonable opportunity to use these gametes for attempts at reproduction, and the wife, not the family, must be the individual to provide consent. Until now, there were no additional applications for thawing of postmortem sperm retrieved in our center! Under pressure of involved families and time limits, our courts tend first to instruct freezing, even in unmarried persons, in contrast to current recommendations. The Attorney General's guidelines for PMSR in Israel are not honored. If implemented, the number of PMSR procedures will dramatically decrease. PMSR raises many medico-legal, moral, and ethical concerns. Our impression is that technological advances lead the way today rather than ethical judgment. This is the situation based on our center in Israel.

Cappy Rothman commented that out of 50 postmortem sperm retrieval procedure requests, only two resulted in sperm retrieval. Both were wives of recently deceased men, and both women went on to have children via IVF/ICSI. He also noted:

  • I would recommend to proceed immediately with postmortem retrieval but inform the families there may be some objections to its use. Very rarely will the sperm be used but giving families hope and decreasing pain is always a kind and healing opportunity for a physician. Lawyers, judges, and ethicists do not have patients. It is our duty as physicians to be an advocate for our patients in need. In 1978, as a clinical instructor at UCLA, I was asked to retrieve sperm from a prominent politician's son who was on life support awaiting organ donation. In 1980, I published “A method for obtaining viable sperm in the postmortem state”, and over the past 30 years, at the request of grieving families, I've performed or facilitated in the retrieval of approximately 50 postmortem procedures. When I receive a phone call from a grieving family in tremendous pain due to the untimely loss of a husband and/or son and who can be comforted and given hope by sperm retrieval, in the spirit of the Hippocratic Oath to decrease pain and suffering, I facilitate their request. Conditions of refusal are based on a family member's opposition or if the deceased had previously had a vasectomy. To date, out of the approximate 50 postmortem requests I've been involved with, only 2 wives wanted to retrieve their husband's sperm and both had normal children with IVF/ICSI.

Finally, Bill Somers noted that he had done two procedures and would not do another due to issues he did not consider prior to the requests being made:

  • I've done two and I won't do another. There are some sticky situations concerning postmortem retrieval that I didn't consider at the time. 1) Did the deceased actually give fully informed consent or did he just mention that he'd like to have kids someday? 2) Did he agree to have his child or children raised without a father? 3) Did he agree to let his children be raised by another man if his wife remarries? 4) In the event that IVF is required, did the deceased give consent knowing his child could be exposed to a slightly higher rate of birth defects? 5) Did the deceased give permission to destroy the specimen some day in the future if his wife doesn't use it, or will it languish in a cryolab forever? 6) Is the wife motivated by future social security benefits? I believe our responsibility is to act as physicians and help the families through the grieving period. Unless we can obtain informed consent from the patient before his medical condition prevents him from communicating his wishes, then we should counsel families against postmortem sperm retrieval.

Postmortem sperm retrieval is indeed a controversial issue. Those individuals making the request are usually in the acute stages of grief and disbelief over the typically sudden and unexpected death of a loved one. Because of this, many have advocated for a quarantine period after sperm retrieval. However, as Land and Ross (2002) note, a quarantine period has problems of its own. For example, how long should a quarantine period be? Who releases the sperm? Who pays the cost of the storage? These are just a few of the issues raised by a quarantine period, and until these and other issues are resolved, a mandated quarantine period will be difficult to impose.

In addition to the issue of a quarantine period, the wishes and consent of the deceased must be taken into consideration. Again, the deceased may be the party with the least active representation in these matters. In countries such as the United Kingdom, this is straightforward: posthumous insemination is forbidden without explicit consent from the father (Hill, 2003). However, in the United States, the issue is less clear cut. Without the express consent of the deceased male, one must attempt to infer his wishes. The Ethics Committee of the American Society for Reproductive Medicine (2004) has attempted to provide some guidance, stating that, “a spouse's request that sperm or ova be obtained terminally or soon after death without the prior consent or known wishes of the deceased spouse need not be honored.” While somewhat vague, this does provide a basis for a physician to refuse a request if the patient's wishes cannot be surmised.

The postmortem sperm retrieval issue should be considered closely by urologists in advance of the request. As Dr Belker suggests, involvement of your institution's legal and ethical review bodies should be undertaken by those considering establishing such a program.

Based on the cumulative responses in this string of entries, it appears that, in the end, few requests are honored. Of those requests that are honored, even fewer result in eventual efforts at procreation using the deceased's gametes in assisted reproductive techniques. Finally, the urologist must remain a vigilant advocate for the deceased male, whose ultimate intentions may be acutely overshadowed by a severely distraught spouse or family member.

References

  1. Top of page
  2. References
  • Ethics Committee of the American Society for Reproductive Medicine, Posthumous reproduction. Fertil Steril. 2004; 82 (suppl 1): S260S262.
  • Hill J.. Posthumous sperm retrieval. Lancet. 2003; 361: 1834.
  • Land S., Ross LS. Posthumous reproduction: current and future status. Urol Clin N Am. 2002; 29: 863871.
  • Rothman CM. A method for obtaining viable sperm in the postmortem state. Fertil Steril. 1980; 34 (5): 512.
  • Rubinstein E.. Postmortem sperm retrieval and its use. Israel Attorney General Guidelines. 2003; 2202: 113.