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March 28, 1999, Sunday

The Sperminator

By Lori B. Andrews

In July 1995, a young man died suddenly in a California hospital. Within hours, his wife's family was on the phone to Cappy Rothman, a urologist at Century City Hospital in Los Angeles. They asked him to meet her at the morgue to collect sperm from her late husband's corpse. Thirty hours after his death, the man produced the sperm that now, four years later, has resulted in his wife's pregnancy. She is due to deliver the baby this month.

Assuming all goes well (she had not given birth at the time this article was printed), she will be the first woman known to have procreated using sperm collected after the father's death. But many other people have tried. According to a 1997 survey conducted by the University of Pennsylvania Center for Bioethics, 14 clinics in 11 states had retrieved sperm from dead loved ones, usually within a day after death. The men, as old as 60 and as young as 15, had died in automobile or motorcycle accidents, from lightning strikes, in construction or farming accidents, from falls. The requests for their sperm came from wives, girlfriends and parents. In fact, retrieving sperm from the dead is now so common that the American Society of Reproductive Medicine has developed a protocol, ''Posthumous Reproduction,'' for dealing with it. And one bioethicist, Timothy Murphy of the University of Illinois College of Medicine, has coined a term for this new kind of father: the sperminator.

A few years ago, a physician at an elite Midwest teaching hospital asked me to consult on the propriety of another kind of involuntary sperm donation. ''We have six men in comas whose wives, girlfriends or parents want their sperm,'' he told me over the phone, inviting me to visit. ''What do we do?''

As a lawyer specializing in genetic and reproductive technologies, I am frequently called in when scientists and doctors are proposing some strange new thing and asked to sort out the rights and responsibilities, the liabilities and the commercial potential. This time, it seemed to me, the idea was a radical one -- procreation without permission. Should it be allowed even if a lawyer like me could come up with a scheme to deal with it?

The incentives for disturbing the comatose -- or the dead -- are high. Grieving survivors may simply want to hold on to a part of their loved one, of course, but in addition, doctors are always looking for new technical challenges, and the financial opportunities for a wife who creates children after her spouse's death can be quite compelling. Edward Hart's widow, Nancy, used his previously frozen sperm to create a daughter, Judith. She then sued the Social Security Administration for death benefits for the little girl. The media put pressure on the agency (''Miracle' Baby Denied Death Benefits''). The agency agreed to pay the girl $700 a month and similar benefits to her mother.

Legally, the Social Security Administration was not obligated to support Judith. The law requires that children be compensated to the extent that the award replaces support their father gave them while he was alive, but this father had never supported Judith. Yet the fascination with reproductive technologies, it seems, enchanted even the stodgy Social Security Administration into paying for their use. And Nancy Hart decided to use the benefits awarded her as mother to enroll in South Texas College of Law to specialize in reproductive technology law.

Boarding the plane for the Midwest, I thought about John Irving's novel ''The World According to Garp,'' in which the central character is the product of a liaison between a nurse and a comatose patient. The nurse in that case knew exactly what she wanted. But I was skeptical that the six women involved with this hospital had independently come to the conclusion that they wanted their loved one's sperm. I suspected that, as with many new high-tech maneuvers, I would find a researcher who saw a medical journal article waiting to happen.

Sure enough, the urologist already had his slides prepared for medical meetings once he got the go-ahead to do the procedure. He proposed to collect sperm from comatose men in the same way it is collected from paraplegic men -- through a technique called electroejaculation. An instrument that looks like a cattle prod would be inserted into the man's rectum. An electric shock would then cause an involuntary ejaculation. Sperm can also be collected manually, surgically or by drug-induced convulsion.

The urologist went on to tell me about his ''patients.'' One was a 25-year-old man who had been trying to father a child before a car accident put him in a coma with a poor prognosis for recovery. His wife wanted his sperm. Another was a 40-year-old man who had sustained a severe head injury, also in a car crash. He had a child from a previous marriage, but none with his second wife, a woman in her mid-20's. He had told friends that he did not want to have additional children. The wife claimed that in the week before the man's accident he had changed his mind.

While the collection of sperm from unconsenting men is novel, there is plenty of precedent for the use of willed sperm. Although conception by men in comas is a new wrinkle in reproductive technology, we've had two decades of experience with posthumous pregnancy using sperm that men have frozen before their deaths. In 1977, Kim Casali, the cartoonist who drew the syndicated ''Love Is'' cartoons, became pregnant with sperm her husband, Roberto, had frozen when he underwent treatment for cancer. After her husband's death, Kim successfully used the sperm. The birth announcement listed the parents as ''Kim and Roberto (posthumously).'' Casali herself died in 1997.

In 1991, William Kane, a Yale-trained lawyer, froze 15 vials of sperm specifically intending that his girlfriend, Deborah Hecht, be inseminated after he committed suicide. Kane and Hecht chose a name for the baby, Wyatt, and Kane wrote a letter to the unborn child: ''I have loved you in my dreams, even though I never got to see you born. . . . I'd rather end it like I lived it -- on my time, when and where I will, and while my life is still an object of self-sculpture -- a personal creation with which I am still proud. In truth, death for me is not the opposite of life; it is a form of life's punctuation.'' He took his life in October 1991 after bequeathing in his will ''all right, title and interests'' to his sperm to Hecht, saying she should use it to become pregnant.

His two adult children by a previous marriage were not at all thrilled with the possibility of a baby half-brother or -sister. Even though Hecht signed a release saying that neither she nor the resulting offspring would make an inheritance claim against the estate, the existing children -- arguing through their attorney-mother, Kane's ex-wife -- sued to have the sperm destroyed. The children, whose parents divorced 16 years earlier, characterized their father's desire to create children after his death as ''egotistic and irresponsible.'' They said destroying the sperm would ''prevent the disruption of existing families by after-born children'' and prevent ''emotional, psychological and financial stress on those family members already in existence.''

It seemed to me that, if accepted, the argument would mean that any firstborn could sue her parents if they depleted her resources (or future inheritance) by having another child. The judge, though, accepted the childrens' plea and ordered the sperm destroyed. Deborah Hecht appealed the decision -- and won. The appellate court scolded the trial judge for his precipitous decision, saying that Kane ''had an interest, in the nature of ownership, to the extent that he had decision-making authority as to the sperm within the scope of policy set by law.''

The appellate court ordered the trial judge to reconsider the case. Since Hecht had inherited 20 percent of the estate, the judge gave her 20 percent of the sperm -- three vials -- which she used to no avail. She sued again, and in 1997, when she was 42, she won the rest of the sperm. As of early 1999, she was trying once more to get pregnant. Meanwhile, William's existing children have sued her again, this time for emotional distress.

Hecht was actually an easy case. William Kane clearly intended the posthumous use of his sperm in precisely the manner in which Deborah Hecht intended to use it. But the comatose men at the Midwest hospital had no wills stating they wanted to have children via electroejaculation. Nor was it likely that any had talked to their friends about that possibility. In the first case, the urologist said, there was evidence that the 25-year-old man and his wife had been trying to have children in the months preceding the accident. However, I had trouble imagining that a man's wishing to have children whom he would actually rear necessarily indicates consent to have children whom he will never see, touch or interact with. In the second case, the man had told people he didn't want children with his second wife at all.

The law is clear that if a woman wants an abortion, her husband can't force her to have a child. Why should she be able to force her husband to become a father? Some men in comas do wake up, after all. How would a man feel to learn he had become a father, through no effort of his own, while comatose?

The urologist argued that doctors have been harvesting sperm from dead men for years. California is the epicenter of dead men procreating (or at least having the potential to do so), owing largely to Cappy Rothman, a co-owner of the California Cryobank and broker to the child about to be born in California. Rothman has been performing the procedure since 1978, when he retrieved sperm from an unmarried 19-year-old for the benefit of his parents, who wanted to continue their lineage.

In October 1997, Rothman and I both testified in a New York Legislature hearing where the question on the table was, Should a dead man's sperm be used without his previous consent? Rothman claimed there is less grief for the wife and other family members if some of the dead man's sperm is saved. He told legislators: ''In one case where a man died by gunshot and I collected his sperm, his family followed me to the sperm bank and were consoled by seeing motile sperm under the microscope. To console families in that way at a time of grief and tragedy is clearly part of my responsibility as a healer.''

But short-term consolation may lead to long-term psychological or social consequences. The net effect may be simply to prolong the grieving process. What happens to the wife who remarries and decides to have a child? Will she feel guilty if she doesn't use sperm from her dead husband? Further, different family members grieve in different ways. As the Kane case showed, some family members might not be pleased by the idea of fathering from the grave. And what if the wife didn't want to use her dead husband's sperm, but the man's parents did, offering to hire a surrogate mother?

Although couples can't force their children to give them a grandchild, new reproductive technologies sometimes allow them to make these decisions. A 23-year-old man who was planning to attend medical school was involved in a motor-vehicle accident, leaving him in a vegetative state. The patient's father asked about acquiring sperm for the purpose of inseminating the patient's fiancee. The father went so far as to masturbate his son to obtain sperm for a semen analysis, which showed that the son had a normal sperm count and normal motility. The records don't show what happened next.

In another case, an 18-year-old only child sustained a severe head injury and was declared brain-dead within 48 hours. The father, who had undergone a vasectomy but who now wished to preserve the family lineage, requested that the son's sperm be preserved for future insemination of a surrogate. The electroejaculation was performed, but it turned out that the patient was infertile and no viable sperm were obtained. The father decided to reverse his vasectomy in order to have a child through a surrogate mother.

In Milwaukee, a man froze sperm before undergoing chemotherapy, which would render him sterile. His hope was to have a child once his health was restored, but the cancer treatment was unsuccessful. After his death, his parents got a call from the hospital, asking what they wanted done with their dead son's sperm. The couple began searching for a woman to bear their son's child and let them act as grandparents. They found a woman who was willing, but at least two attempts at insemination failed. They also established a post-office box and invited prospective parents to write to them.

Posthumous procreation raises complicated questions about family relationships, not to mention concerns about the psychological impact on the child. Yet doctors do not need to request permission from an ethics committee to undertake the procedure. Physicians can make their own ad hoc decisions about whether or not to harvest sperm and create their own criteria for determining which requests should be honored. Cappy Rothman, for example, will not collect sperm from dead men who have had vasectomies; he figures they clearly did not want kids.

Our unregulated approach contrasts greatly with the system in England, where the Human Fertilisation and Embryology Authority, a Government agency, passes judgment on which fertility techniques are beyond the pale. They have nixed human cloning, creating babies from eggs from aborted fetuses and using dead men's sperm without their prior consent. In the United States, we have no such deliberative body.

Nor does existing law provide clear guidance on when, or whether, sperm should be retrieved after a man is incapacitated or dead. In January, State Senator Roy Goodman introduced a bill, now pending in the New York Legislature, banning posthumous sperm collection unless the man has previously consented in writing. But until such a bill is passed, a wide range of conflicting precedents -- governing organ transplants, custody over frozen embryos and fetal tissue transplants -- are being consulted to provide guidance for this new means of parenting.

Under the Uniform Anatomical Gift Act -- the organ donor law in each state -- a wife or other relative can donate the deceased's organs or tissue and can choose the recipient. Technically, then, the wife could donate the sperm to herself.

Or could she? The law covers transplantation, but using sperm to create a child doesn't quite fit that description. And wouldn't the wife have a conflict of interest? The law allows the wife to donate organs to further her husband's wishes, since it is very unlikely that she would, say, need a kidney at the exact moment the man died. To remove the incentive for the wife to go against her husband's desires, payment for organs is not allowed.

But if she wanted a child and he didn't, the existing law wouldn't protect his desires after death. Already, claims of conflict of interest are being leveled about fetal-tissue transplantation. A Federal law prohibits a woman who aborts her fetus from being able to designate a recipient for its tissue even though, under the organ donor law, she technically may do so as its next of kin. The concern is that women will conceive and abort just to provide fetal tissue, for instance, for a relative with Alzheimer's disease. Doesn't donating sperm to herself also create a conflict of interest? And why should a man's parents (the next in line under organ donor laws) have control of his reproductive capacity? There is no ''right'' to carry on one's lineage; if the son is competent and healthy, for example, his parents can not force him to have a child.

Once comatose men are turned into objects from which tissue can be harvested by their wives, what's to keep men from arguing for equal rights? If the wife was comatose, could her husband ask for eggs to be retrieved? Could he argue he had a constitutional right to impregnate her and keep her alive on a respirator for nine months until the child could be delivered by Caesarean section?

Reproduction is an individual, personal matter. And courts are beginning to recognize that men, as well as women, have a right not to reproduce. The Tennessee Supreme Court, in a dispute over frozen embryos that had been created through in vitro fertilization, held that a divorcing man's right not to be a father allowed him the right to order that the embryos be destroyed. He argued that his changed circumstances -- divorce -- made his previous consent to in vitro fertilization invalid. Similarly, we can't assume that a man pursuing parenthood while alive would have wanted to father children from the grave.

If men do want to give wives or other relatives a right to their sperm after their deaths, they can fill out a donation card, as they do to donate organs. After I mentioned this to my law students, several women in the class got their husbands to give them power of attorney over their sperm.

If we start down the path of procreation without permission, where do we draw the line? Could a mortician (or a C.A.A. agent) retrieve sperm from a dead celebrity to create souvenir babies? If a good-looking John Doe is admitted to a hospital in a coma, can the hospital sell off some of his sperm to pay his medical bills?

At the Midwest hospital with the six comatose men, I tried to discourage the doctor from electroejaculating his patients. But since no law or regulation prohibited the procedure, they went ahead. Although they have had no successful pregnancies yet, the procedure has been used elsewhere. In 1998, a British woman, Diane Blood, gave birth to a son, Liam, with sperm collected while her husband, now dead, was comatose. She had to go to Belgium for the insemination, though, since she was violating British law.

Collecting sperm from comatose or dead men is perilously close to rape. Unless the man has previously consented, his sperm should not be used to create a child. The United States Supreme Court is clear that comatose individuals cannot be forced to accept life-sustaining treatments. Neither should they be forced to contribute to life-creating ones.

Organizations mentioned in this article:

Related Terms:
Reproduction (Biological); Ethics; Sperm; Death and Dying

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Copyright 2001 The New York Times Company