His parents told a court that they wanted to keep the ability to use sperm to have children genetically related to Peter. The court approved their wishes and Peter’s sperm was recovered from his body and stored in a local sperm bank.
We have the technology to use the sperm, and potentially eggs, of dead people to create embryos and eventually babies. And there are millions of eggs and embryos – and even more sperm – in storage and ready to be used. When the person who supplied those cells dies, like Peter, who decides what to do with them?
This was the question raised during an online event organized by the Progress Educational Trust, a UK charity for people with infertility and genetic conditions, which I attended on Wednesday. The panel included a doctor and two lawyers, who addressed many tricky questions but provided few concrete answers.
Ideally, the decision should be made by the person who provided the oocytes, sperm or embryos. In some cases, the person’s wishes may be quite clear. Someone who might be trying for a baby with their partner can keep their own sex cells or embryos and sign a form stating they are happy for their partner to use these cells if she dies, for example.
But in other cases, it’s less clear. Partners and family members who wish to use the cells may need to gather evidence to convince a court that the deceased really did want to have children. And not only that, but that they wanted to continue their family line without necessarily becoming parents themselves.
Sex cells and embryos are not property: they are not covered by property law and cannot be inherited by family members. But there is some degree of legal ownership for the people who supplied the cells. It’s tricky to define such ownership, however, Robert Gilmour, a Scotland-based family law specialist, said at the event. “The law in this area hurts my head,” he said.
The law also varies depending on where you are. Posthumous reproduction is not permitted in some countries and unregulated in many others. In the United States, laws vary by state. Some states will not legally recognize a child conceived after a person’s death as that person’s offspring, according to the American Society for Reproductive Medicine (ASRM). “We have no national rules or policies,” Gwendolyn Quinn, a bioethicist at NYU, tells me.
Meanwhile, companies like the ASRM have put together guidance for clinics. But this can also vary slightly between regions. Guidance from the European Society for Human Reproduction and Embryology, for example, recommends that parents and other relatives should not be able to request the sex cells or embryos of the deceased person. This would apply to Peter Zhu’s parents. The concern is that these relatives may be hoping for a “memorial child” or as a “symbolic replacement for the deceased”.
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