Removal of sperm from a man's body after death was first reported in 1980, in a case involving a 30-year-old man who died following a motor vehicle accident and whose family requested that his sperm be extracted and frozen. (2) Since that time, more than ninety cases have been reported in which family members requested sperm retrieval from men who died (3) or entered a persistent vegetative state (4) (PVS), for the purpose of artificially inseminating a wife, girlfriend, or other woman. (5) Several medical techniques for retrieving sperm have been described. (6) In at least one case, such retrieval and insemination resulted in pregnancy and childbirth. (7) Media coverage of this birth has raised public awareness of such sperm retrieval, and additional requests for it in the future seem likely. Although sperm retrieval could be performed for nonprocreative purposes, such as medical research, this paper focuses on cases in which the intent is procreative.
In these cases, death or PVS typically is caused by sudden illnesses, such as head trauma, rapidly-progressing infections, or asphyxiation. Because the illnesses are unanticipated, a typical feature of these cases has been the absence of the man's prior consent to sperm retrieval and artificial insemination. Despite the lack of such consent, sperm has been extracted in a number of cases in which requests have been made. (8) Thus, these situations raise a number of ethical issues: Should procreation by means of sperm retrieval and artificial insemination after death or PVS be allowed? If so, is the man's consent ethically required? Should we value the freedom of wives or others to have sperm retrieved in these circumstances? In addition, a number of legal issues arise: What is the legal status of a man's prior consent to sperm retrieval and insemination after death or PVS? What is the legal status of consent by the spouse or other next of kin for such procedures? Should the man's consent to sperm retrieval and insemination after death or PVS be legally required?
Although a number of additional legal questions can be raised, including issues of paternity and inheritance, this paper focuses on the legal issues pertaining to consent, as well as the ethical questions raised above, which need to be discussed in order to address adequately the legal consent issues. The paper is organized as follows: first, the current law of consent to sperm retrieval and insemination after death or PVS is discussed in order to identify gaps in the law--areas that the law does not address or concerning which it is unclear; second, ethical issues are discussed that are relevant to deciding what the law should be; and third, based on the analysis of ethical issues, legal approaches are proposed that attempt to fill the gaps identified.
We shall see that the law of consent differs in some respects, depending on whether a patient is alive or dead. Because patients in PVS are legally alive, (9) it will be necessary to consider separately cases involving PVS and those involving death. Specifically, Part II examines the current legal status of consent to retrieval and insemination in cases involving patients in PVS. Part III explores the current legal status of consent to retrieve sperm from dead patients. Part IV discusses the current law of consent in regard to artificial insemination using the sperm of dead patients. Part V puts forward and defends views concerning several ethical questions, including the following: Should sperm retrieval and insemination following death or PVS be permitted? Is the man's consent necessary? Part VI sets forth proposed legal approaches to cases involving patients in PVS, and Part VII states proposed legal approaches for cases involving dead patients.
II. THE LEGAL STATUS OF CONSENT TO SPERM RETRIEVAL AND INSEMINATION IN CASES OF PERSISTENT VEGETATIVE STATE
An analysis of the current law of consent, as applied to sperm extraction and insemination in PVS cases, can be divided into three areas: statutory law; the common law of consent to medical treatment; and the right to consent to (or refuse) medical treatment implied by the constitutional right to privacy. …