His parents told a court that they wanted to keep the possibility of using the sperm to eventually have children that would be genetically related to Peter. The court approved their wishes, and Peter’s sperm was retrieved from his body and stored in a local sperm bank.
We have the technology to use sperm, and potentially eggs, from dead people to make 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 provided those cells dies, like Peter, who gets to decide what to do with them?
That was the question raised at an online event held by the Progress Educational Trust, a UK charity for people with infertility and genetic conditions, that I attended on Wednesday. The panel included a clinician and two lawyers, who addressed plenty of tricky questions, but provided few concrete answers.
In theory, the decision should be made by the person who provided the eggs, sperm or embryos. In some cases, the person’s wishes might be quite clear. Someone who might be trying for a baby with their partner may store their sex cells or embryos and sign a form stating that they are happy for their partner to use these cells if they die, for example.
But in other cases, it’s less clear. Partners and family members who want to use the cells might have to collect evidence to convince a court that the deceased person really did want to have children. And not only that, but that they wanted to continue their family line without necessarily becoming a parent themselves.
Sex cells and embryos aren’t property—they don’t fall under property law and can’t be inherited by family members. But there is some degree of legal ownership for the people who provided the cells. It is complicated to define that ownership, however, Robert Gilmour, a family law specialist based in Scotland, said at the event. “The law in this area makes my head hurt,” he said.
The law varies depending on where you are, too. Posthumous reproduction is not allowed in some countries, and is unregulated in many others. In the US, laws vary by state. Some states won’t 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 do not have any national rules or policies,” Gwendolyn Quinn, a bioethicist at New York University, tells me.
Societies like ASRM have put together guidance for clinics in the meantime. But this can also vary slightly between regions. Guidance by 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 person who died. That would apply to Peter Zhu’s parents. The concern is that these relatives might be hoping for a “commemorative child” or as “a symbolic replacement of the deceased.”