Purpose: Postmortem sperm procurement with subsequent artificial insemination has become a technically feasible method for posthumous conception. A variety of legal questions exist involving the rights and relationships of the deceased, his family and his issue. We addressed these questions and designed a workable protocol for postmortem sperm procurement.
Materials and methods: MEDLINE, WESTLAW and LEXIS medical literature, and case law searches were conducted. United States and international case law, United States (federal and state) statutes, Uniform Law Commissions Acts, and law review commentaries and articles were reviewed.
Results: While postmortem sperm procurement is being requested throughout the United States, no standard protocol or procedural guidelines have been established by federal or state statute. Furthermore, the courts have not yet addressed this specific scenario in reported case law. Statutes and case law do address related factual scenarios and issues, including property rights in human bodies, rules governing transplantation of human organs/body parts, rights of parties in in vivo sperm bank donations and responsibilities of parents to the conceptus of artificial insemination.
Conclusions: A workable protocol can be established by analyzing case law and statutes addressing factually similar scenarios. Urologists must focus on the express intent of the decedent and limit any postmortem sperm retrieval to the specific requests made by the decedent. Decedent requests should be documented in writing. The decedent must be competent and of majority age. In the absence of decedent expressed affirmative directive calling for sperm retrieval, no other relative or guardian may authorize this retrieval. Issues regarding the legitimacy and inheritance rights of the conceptus will most consistently be addressed when explicitly provided for in the will of the decedent.