A New York Supreme Court judge this month ruled that the parents of a 21-year-old man who died earlier this year can use his frozen sperm to produce a child.
In a ruling released last week, Judge John Colangelo said the court would place no restrictions on how the parents could use the sperm, “including its potential use for procreative purposes.”
Peter Zhu, a U.S. Military Academy cadet from Concord, Calif., was fatally injured on Feb. 23 in a skiing accident on a slope on campus in West Point, N.Y. He was found unresponsive and taken to the hospital, where doctors determined the accident had fractured his spine and cut off oxygen to his brain. Zhu died four days later.
Doctors kept Zhu, who was an organ donor, on life support for two days while they made arrangements to transplant his vital organs. During that time, his parents hired an attorney who submitted a court request for postmortem sperm removal. “We are desperate to have a small piece of Peter that might live on and continue to spread the joy and happiness that Peter brought to all of our lives,” his parents said in a filing in state court in Westchester County. They argued that as the only male child of the family, their son was their only hope of carrying on the family lineage. The hospital was ready and willing to do the procedure but only with a court order.
Within hours, Colangelo directed the Westchester Medical Center in Valhalla, N.Y., to retrieve the sperm and ordered it stored pending a court hearing in March.
Last week, Colangelo announced he found no restrictions in state or federal law that would prevent the parents from using their son’s sperm, especially since it seemed clear Zhu had intended to have children. Although he left no written instructions about the use of his genetic material for reproduction after his death, Zhu, according to his parents’ testimony during the hearing, had talked to them about his desire to have several children. His military adviser at West Point also testified that in mentoring sessions the cadet had said he wanted to be a father.
The judge said Zhu’s parents had not decided whether they would try to use assisted reproductive technology—likely an egg donor and a gestational surrogate—to conceive a child with their son’s sperm.
Last year, the ethics committee of the American Society for Reproductive Medicine concluded posthumous egg and sperm retrieval is ethically justifiable with previous written consent of the deceased. But without such authorization, the committee said doctors should only consider requests from the surviving spouse or sexual partner of the deceased. Requests from any other individuals, including parents—an instance the report called a “troubling situation”—should be declined. “In the case of a surviving parent, no joint reproductive effort can ever be said to have existed,” the committee said in a position paper. “Nor do the desires of the parents give them any ethical claim to their child’s gametes [sperm or oocyte].”
While some countries have moved to make posthumous reproduction illegal without explicit written consent of the deceased, courts in the United States have ruled on a case-by-case basis.
That is “worrisome on many levels as it highlights how unsettled the law is on matters of making life posthumously,” Jennifer Lahl, the founder and president of The Center for Bioethics and Culture, told me. “Sadly, judges are ruling from the bench on hugely important matters never facing courts before and with little expertise. When they get these sorts of cases wrong, and there will be more, the rulings set a bad precedent.”
Lahl referenced a bill introduced earlier this year by U.S. Sen. Patty Murray, D-Wash., that would allow service members to bank their eggs or sperm before deploying to a combat zone.
“This sort of policy will open the door for not only our wounded military, but those who may be killed while serving, to allow their parents or spouses to posthumously ‘make’ children,” Lahl said, adding that as a military mother herself, she sympathizes with Zhu’s parents’ loss of their son and any future grandchildren he may have given them. But, she concluded, “intentionally creating children, on purpose, who will never know their father, is only adding to the tragedy of their son’s death.”