A Legal Foundation For Your Family

Can a doctor harvest sperm from a cadaver?

On Behalf of | Nov 21, 2018 | Firm News

The answer is yes, a doctor can harvest sperm from a cadaver. The next question is whether the doctor should.

Sperm can remain viable for between 24 and 48 hours after a man dies. Doctors will first look for physical damage to the testicles, then talk to survivors to determine if the man’s sperm had been previously viable for conception and that no testosterone or steroid use has affected the sperm viability.

Assuming the sperm is viable, a urologist can extricate sperm using several methods – removing the testicles, a testicle biopsy, or removing the sperm with a needle. The sperm is then frozen using the same technology a sperm bank uses to store sperm.

The man’s spouse or partner can then use the sperm to become pregnant via intrauterine insemination or in vitro fertilization. While the instances of this series of events are rare, there appears to be no deleterious effects of the procedure on the child.

Relatively uncharted territory

The first removal of sperm from a cadaver was in 1980 and the first baby from such a procedure was born in 1999.

While doctors can perform this procedure, the question remains whether they should perform the procedure.

The first hurdle is divining the dead man’s intentions. Sperm harvesting is not typically part of a living will or other legal, notarized documents available posthumously.

This leaves the decision to a spouse or partner. Since sperm remains viable 24 to 48 hours after cardiovascular death, survivors and loved ones to have time to mull over what is an emotional and potentially life-changing decision.

Laws and ethical considerations

While there are no federal laws on the subject, there are several states with laws on the books. It is best for doctors and hospital staff to know these laws before performing the procedure.

Doctors and staff should also discuss the procedure with hospital ethicists. Some hospitals have regulations against such procedures. However, doctors and survivors have the option to ask that the cadaver be removed to a facility that will allow the procedure.

Doctors themselves may feel the procedure violates their ethics. They are advised to simply ask another doctor to perform the procedure.

Some facilities require not only the spouse or partner’s consent, but also that of a mental health professional or physician to show the couple had been trying to conceive.

The American Society for Reproductive Medicine has released guidelines on the subject, saying that if there is no written guidance from the deceased, then doctors and facilities should rely on the wishes of spouses and partners.

The Uniform Parentage Act and American Bar Association Model Act to Govern Assisted Reproductive Technology both provide suggested guidance for the subsequent use of posthumously retrieved sperm, requiring reasonable evidence from or the express written consent of the deceased before any such sperm can be used to initiate a pregnancy. Issues of the subsequent parentage and inheritance rights of the resulting children are also implicated.

As with all issues involving assisted reproductive technology, an experienced lawyer should always be consulted.