Posthumous reproduction: an Ethics Committee opinion

KEY POINTS

• In this document, the term reproductive tissue encompasses gametes (oocytes and sperm), embryos, and gonadal tissue (ovarian and testicular).
• Posthumous assisted reproduction (PAR), as addressed in this document, includes both the retrieval of reproductive tissue around the time of death and the posthumous use of previously cryopreserved reproductive tissue.
• Fertility clinics are not ethically obligated to participate in posthumous assisted reproduction.
• Posthumous use of reproductive tissue is ethically justifiable if prior written authorization from the deceased is available or documented in the medical record.
• Posthumous use of reproductive tissue is ethically justifiable in the absence of prior written authorization only if requested by the surviving reproductive partner, provided there is no known evidence that the deceased objected to such use.
• Fertility clinics should develop written policies regarding PAR, including the specific circumstances in which they will or will not participate in such activities.
• Retrieval of reproductive tissue does not commit a clinic or the surviving partner to its later use for reproduction, and this should be disclosed to all stakeholders before its retrieval.
• An individual’s demonstrated intention to have a child while alive does not necessarily imply consent for posthumous reproduction.
• Posthumous retrieval or use of reproductive tissue should not be undertaken when there is a documented desire against it in writing or documented by a physician in the medical record.
• Fertility clinics should counsel patients that laws vary by jurisdiction regarding the permissibility of PAR, and whether resulting children will be legally recognized as offspring of the deceased.
• Fertility clinics participating in PAR should be aware of local laws and advise patients to seek legal counsel regarding laws and judicial opinions that may affect their and their potential offspring’s legal rights.
• Time should be allotted for grieving and to allow for psychological counseling before decisions regarding the posthumous use of reproductive tissue are made.

Assisted reproductive technologies are unique in their ability to facilitate reproduction after the death of one or more intended parents via the procurement of reproductive tissue around the time of death or via the use of a deceased individual’s previously stored reproductive tissue. In general, decisions about whether to have a child are considered private and a fundamental right of individual adults. With posthumous reproduction, the deceased will not be able to rear the child, raising questions about whether an individual can have a posthumous interest in reproducing, even when rearing is not possible. Conversely, one must consider whether an individual can have an interest in not reproducing after their death. Additional ethical considerations include the choices or interests of the surviving partner who wishes to attempt reproduction using the deceased's reproductive tissue, the impact on children conceived posthumously, the interests of others who cared about the deceased (such as surviving parents), as well as how these interests should be weighed against the interests of the deceased. Issues of posthumous reproduction when minors have frozen reproductive tissue are addressed in a separate opinion (1).

RESEARCH REGARDING POSTHUMOUS REPRODUCTION

A small number of publications have addressed societal attitudes toward posthumous use of reproductive tissue (2–7). One study found that a majority of the general population was unfamiliar with posthumous reproduction and that only about half supported the idea (2). Of those in support, a significant majority believed that the posthumous retrieval and subsequent use of gametes were permissible only with prior informed consent (2). In times of conflict, requests from parents wishing to retrieve their deceased son’s sperm increase dramatically (8, 9). Predictors of support included younger age, higher education, higher income, and current attempts to conceive (2). A general population survey found that 70% of males and 58% of females would support their spouse's use of their gametes after their death; however, the issue of prior consent was not addressed in this study (10). An analysis of men freezing sperm at a fertility clinic found that 85% would elect to transfer dispositional control of their sperm to their partners in the case of their death (3).

Cancer patients also consider posthumous reproduction (11, 12). Another study of those banking sperm before infertility or cancer treatment similarly found that 85% of men consented in writing to its posthumous use (5). A review of current fertility patients’ views on posthumous use of gametes found that, although the majority (78%) indicated they would permit posthumous assisted reproduction (PAR) in general, 25.0% of the female participants were not agreeable to posthumous reproduction using their eggs, and 8.5% of the male participants objected to the posthumous use of their sperm (6). Another small study of 26 patients undergoing in vitro fertilization (IVF) or gamete preservation reported that 57.6% of patients would support their partner using their reproductive tissue to have a child after their deaths (6). When evaluating consent and disposition forms signed before initiating IVF, one study identified a gender bias in disposition decisions. In the case that the female was to die, embryos were most likely to be discarded, whereas in the case that the male was to die, 58% of couples chose to give dispositional control for the purpose of reproduction to the female (13). Finally, a review of embryo disposition forms signed by 249 heterosexual couples who sought care at an IVF clinic indicated that 73.5% of men and 61.8% of women agreed to the posthumous use of the couple’s embryos by their surviving partner. Although couples were generally aligned regarding permitting posthumous reproduction, two studies that looked at this issue found intracouple disagreement in 13.2% and 25% of couples, respectively, highlighting the fact that it cannot be assumed that a desire to reproduce while alive implies that partners will be aligned in their decisions regarding the posthumous use of gametes or embryos (6, 14). It is important to consider the limitations of research to date, including whether contemporaneous responses to study questions might change over time or be influenced by factors such as whether the intended parents already had children, the status of their relationship, or other considerations.

There are additional populations who may choose to cryopreserve reproductive tissue, including military service people and others in high-risk circumstances. When such individuals choose to do so, they should be counseled to provide explicit written instructions regarding their posthumous use (15–18).

POSTHUMOUS INTERESTS OF THE DECEASED

Opinions differ on the extent to which a living individual’s rights/interests survive their death (19). It can be argued that because a deceased individual cannot feel, think, or experience anything, they cannot be harmed or benefited. This position would contend that a deceased individual has no rights or interests in, and thus could not be impacted by posthumous reproduction. And yet, certain individual interests and rights persist after death, as evidenced by the writing of wills, the naming of specific recipients on life insurance policies. Additionally, people may have critical or legacy interests in the continuation of important commitments and values they held throughout their lives (14).

An individual’s demonstrated intention to have a child while alive should not be construed as evidence of consent for posthumous reproduction. Posthumous use of reproductive tissue is ethically justifiable if prior written authorization from the deceased is available or documented in the medical record. Still, such authorization should in no case be construed as an obligation on the part of the surviving partner to use the reproductive tissue. In the absence of written or documented authorization from the decedent, fertility clinics open to considering requests for PAR should only collect or agree to use reproductive tissue when initiated by the surviving partner. Requests from individuals other than the reproductive partner of the deceased may be considered in rare circumstances, and only when they align with the stated or presumed wishes of the deceased. A spouse’s request that reproductive tissue be obtained around the time of death without the prior consent or known wishes of the deceased need not be honored. In all cases, posthumous reproduction should not be undertaken when the deceased individual clearly indicated a desire against posthumous reproduction.

INTERESTS AND CARE OF THE SURVIVING PARTNER

Individuals who have experienced the death of a partner may seek to have a child using their deceased partner’s reproductive tissue. This may reflect the surviving partner’s continued desire to fulfill a life goal of having a child or completing their family in accordance with their family-building plans. It might also be based on a failure to accept the death of the partner, the desire to avoid or ameliorate feelings of grief, or the desire to have a living memory of the deceased (20). Careful attention should be paid to the surviving partner, who may feel compelled to carry out the wishes of their deceased partner but might not wish to have a child alone. Similarly, the surviving partner may feel pressure from the deceased partner’s family members to have a child that is genetically related to the deceased, or to expand their family with genetically related siblings. A related concern is that the survivor's decision-making may be affected by grief in the immediate period after the loss and may not reflect the desires of the survivor once they have had adequate time to process their grief. In all posthumous use cases, ongoing counseling should be offered as the surviving partner goes through the stages of grief (21). Moreover, it is strongly encouraged that fertility clinics allow adequate time for counseling and other support to ensure that any decision regarding posthumous embryo/gamete use is the autonomous informed decision of the surviving partner (22). Clinical decision tools have been suggested as a method for providers to use in discussions with surviving partners (23). The committee recommends that an appropriate amount of time has elapsed after the death to allow for grieving and psychological counseling to take place before decisions regarding the use of cryopreserved embryos and/or gametes are made.

INTERESTS AND PSYCHOLOGICAL CONCERNS FOR THE RESULTING CHILD

It is important to consider the interests of and psychological concerns for children conceived posthumously. Some ethicists would assert that the opportunity to exist is a better alternative to not existing, even if that life is marked by significant difficulties and burdens (24). Being raised by a single parent is not a contraindication to posthumous reproduction. Children in a single-parent-by-choice family or a family in which a parent dies may have practical and/or psychologically challenging experiences. Still, with appropriate support, these children can cope well and thrive. Buttressing this conclusion are studies that find that children in single-mother-by-choice families do not appear to differ in terms of psychological health from those raised in two-parent families (25, 26). However, not all studies report positive outcomes for children born in single-parent households (27). The various potential outcomes for children born posthumously should be considered as part of reproductive counseling. Although posthumous reproduction is ethically permissible when considering the interests of the resulting child, exercising this option raises several concerns relating to the fact that a posthumously conceived child will have no opportunity for a relationship with the deceased parent, and the effort to learn about the deceased parent may be impacted by the grief experience of others (28).

It is reasonable to presume that posthumously conceived children are likely to have an interest in developing an understanding of the deceased genetic parent. The surviving parent and potentially family members of the deceased parent may be able to provide considerable information and should be encouraged to do so. It has been suggested that, for a posthumously conceived person, ‟the experience may be one in which the missing genetic parent is clearly absent yet forever emotionally present in the child’s family and life experience’’ (29). However, such concerns are not so overwhelming that they should lead to a denial of requests for posthumous reproduction, but they do warrant attention to appropriate mental health counseling.

An additional concern for posthumously conceived individuals is that the surviving parent and/or family members of the deceased parent may see the child as a living legacy of the deceased parent and may intentionally or subconsciously work to engender traits of the deceased within the child. This has the potential to expose the child to undue pressure, disappointment, or frustration, as well as to constrain the child’s right to an open future (30, 31). Although no research is available regarding the psychological and relational experience of children conceived posthumously, one study of children born after the death of a sibling identified that these children were prone to experiencing confused or incomplete identity formation, upset regarding repeated comparisons with the deceased sibling, and conflicted feelings regarding the deceased sibling.

Lastly, concern exists for the child’s experience of being raised by a grieving parent. Studies have suggested that bereaved parents may continue to struggle with their own grief and be less able to provide time, attention, support, and a stable environment for their children (32). As aforementioned, it is important to allow time for a surviving partner to process grief before proceeding with posthumous reproduction.

PARENTS, SIBLINGS, OR OTHER PARTIES INTERESTED IN THE POSTHUMOUS USE OF REPRODUCTIVE TISSUE

Parents of the deceased may desire posthumous reproduction utilizing gametes from their child or embryos created with their child’s gametes (7, 33). Their motivations might include efforts to perpetuate their child’s legacy or satisfy a desire to have grandchildren who are genetically related to their deceased adult child. Siblings of the deceased may wish to use the gametes or embryos created with the gametes of their deceased relative because of their own fertility limitations or because of a desire to have a child related to their deceased sibling. In both of these cases, no joint reproductive effort can ever be said to have existed. Although some investigators support the use of posthumous reproductive tissue by individuals other than the intended reproductive partners of the deceased (7), the American Society for Reproductive Medicine (ASRM) Ethics Committee feels that such requests are not ethically permissible without written documentation or notation in the medical record of the deceased indicating their desire to allow for such use of their reproductive tissue (7, 34). The desires of the parents or siblings do not support an ethical claim to the deceased's gametes. In the absence of documented instructions from the decedent or a court order, fertility centers should decline requests for posthumous reproduction from family members other than surviving partners.

LEGAL CONSIDERATIONS

When making decisions regarding posthumous reproduction, intended parents should be aware of legal considerations regarding the varying lengths of time after a parent’s death that different jurisdictions recognize or deny a legal parent-child relationship and the resulting financial and legal impacts. Fertility clinics should counsel patients that state laws may vary on the permissibility of posthumous retrieval of reproductive tissue; its future use; and if and under what circumstances or timetables children born after PAR are legally recognized as offspring of the deceased or entitled to any benefits. Those considering posthumous reproduction may benefit from seeking out legal counsel regarding laws that may affect both their and their potential offspring’s legal rights. The committee is aware that some courts have granted access to PAR to parents or other family members of the deceased besides their surviving partner, such that fertility clinics may be confronted with legal and ethical inconsistencies. In such cases, they should consult legal counsel.

GUIDANCE FOR FERTILITY CLINICS

Proactive documentation and patient education

Gametes and embryos are often cryopreserved by individuals and couples for future use. Fertility centers should have consent forms and agreements that stipulate the disposition of gametes and embryos after the death of the individual(s) who elected to cryopreserve them. Patients should complete these forms before cryopreserving gametes or embryos. Patients should be encouraged to seek legal counsel if they have specific questions regarding the future use of their reproductive tissue, and fertility centers may wish to become familiar with the applicable laws in their state.

In some cases, individuals may want to specify the conditions under which a surviving partner can use the reproductive tissue of the deceased. For example, an individual may only be comfortable allowing a partner to use cryopreserved gametes or embryos within a set number of years after the progenitor’s death, they may wish to establish an upper age limit for the surviving spouse when using the cryopreserved gametes or embryos, or they may wish to limit the number of children that could result from the posthumous reproductive efforts.

Posthumous reproduction in the context of existing documentation

A couple who have supernumerary embryos frozen for later use may jointly decide that, in the event of the death of either of them, the surviving partner should be able, if they desire, to use the cryopreserved embryos for reproductive purposes. Before attempting a pregnancy with the reproductive tissue, counseling should be offered to ensure that the survivor is making an autonomous choice to proceed with their reproductive efforts. Although posthumous use of reproductive tissue is ethically justifiable if prior written authorization from the deceased is available, such authorization should in no case be construed as an obligation on the part of the surviving partner to use the reproductive tissue.

Patients seeking PAR should be counseled about the issues they and their future children may face. Providers should make reasonable efforts to ensure that patients are not being coerced or are so overwhelmed with grief that they are unable to thoughtfully consider their decision to seek PAR. It is strongly encouraged that fertility clinics allow adequate time for both counseling and processing of grief to occur before moving forward with any decision regarding posthumous gamete/embryo use. Research examining the grief experience of individuals after the loss of a spouse or partner suggests that bereaved individuals will commonly experience disruptions in cognitive, emotional, and interpersonal functioning in the months after the loss (35). Symptoms of depression, in contrast, may persist for years and some individuals will continue to struggle with fully accepting the loss of their partner for a prolonged period of time (36). Psychological counseling, including assessment of emotional readiness, before posthumous reproduction is strongly recommended, and the surviving partner should wait until enough time has elapsed after the death to allow for grieving and psychological counseling to take place. The length of time that this process takes will vary, and an individualized approach should be considered, with input from mental health professionals and in consideration of any legal deadlines in applicable state law (37). Clinical decision-making and counseling tools have been suggested for providers to use in discussions with surviving partners and to assess emotional readiness for posthumous reproduction (23, 29).

Surviving partner requests for posthumous reproduction in the absence of or in conflict with a written directive from the deceased

The Committee discourages PAR unless there is clear evidence that it would have been in accordance with the decedent’s wishes. Providers should not provide PAR if there is evidence that the deceased would not have desired this.

In some cases, especially outside of fertility clinics, explicit or written evidence of the wishes of the deceased regarding posthumous reproduction may not exist. In these situations, providers may struggle to determine the decedent's wishes and are obligated to exercise considerable caution when complying with requests for the utilization of cryopreserved tissue or for perimortem gamete harvest. It is ethically reasonable for fertility clinics to decline these requests.

It has been suggested that, in the absence of documentation to the contrary, it should be presumed that a deceased individual would have consented to posthumous reproduction (38). This assertion is based on the presumption that the deceased would have valued the ‘‘genetic continuity’’ that is realized by having offspring. It is further asserted that ‘‘consent is usually given by words or by conduct—not by legal instrument’’ and therefore, if an individual had expressed a desire to have a child or was attempting to have a child before their death, it can be concluded that posthumous reproduction would have been acceptable to the deceased. Proponents of this position argue that when embryos were created for the purpose of allowing a couple to reproduce together, in the absence of a written directive prohibiting the use of cryopreserved embryos by the survivor, it seems reasonable to allow surviving partners to reproduce from embryos they helped to create for that purpose unless there is other evidence that indicates that this would have been opposed by the deceased.

The dilemma with this argument is, as noted in the research review above, that a sizable portion of male and female patients seeking pregnancy through fertility clinics do not agree with the posthumous use of embryos or gametes. Hence, permitting posthumous use of gametes or embryos risks acting against the reproductive desires of the deceased.

Surviving partners may assert that, although no documentation regarding posthumous reproduction intentions may be available, they know that their deceased partner would have been agreeable to posthumous use of gametes or embryos. Use of this second-hand information is not sufficient to confidently illuminate the wishes of the deceased and may be skewed by the apparent conflict of interest of the partner wishing to use the deceased’s gametes or embryos to reproduce. Further, as noted above, one-fourth of couples have intracouple disagreement about using cryopreserved tissue posthumously (6).

When no gametes have been cryopreserved at or around the time of death, determining the deceased, or dying individual’s consent to posthumous reproduction is often even more challenging. Moreover, extracting sperm or eggs around the time of death involves an invasive procedure, to which some may object as a violation of bodily integrity, and may have legal implications. Although the incidence of such situations involving fertility clinics may be relatively low (39, 40), it is worth exploring the ethics of removing sperm or eggs from the body of a dead or dying individual for the light it shines on the issuing of consent.

The inherent complexity of such situations is that decisions to retrieve the gametes must be made quickly. A couple’s plan to have a child may be thwarted by the sudden illness/injury and death of one member of the couple. In such cases, there may be a limited time or an inability to obtain written authorization from the dying person regarding peri/postmortem gamete retrieval and use. Clinics and the intended parent should be aware that the decision to retrieve reproductive tissue does not necessarily commit them to its later reproductive use, and this should be conveyed to all stakeholders at the time of procurement. Like other situations, any plan for reproductive use should take place after adequate time for grieving and counseling has occurred. It would be ethically reasonable to decline a request for posthumous gamete retrieval. It would also be ethically reasonable to decline to provide PAR using gametes retrieved around the time of death of the progenitor.

SUMMARY

Decisions surrounding posthumous reproduction are ethically complex. They involve multiple stakeholders, including the deceased, whose interests regarding the disposition of their reproductive tissue exist even after their death.

Acknowledgments

This report was developed under the direction of the Ethics Committee of the American Society for Reproductive Medicine as a service to its members and other practicing clinicians. Although this document reflects appropriate management of a problem encountered in the practice of reproductive medicine, it is not intended to be the only approved standard of practice or to dictate an exclusive course of treatment. Other plans of management may be appropriate, taking into account the needs of the individual patient, available resources, and institutional or clinical practice limitations. The Ethics Committee and the Board of Directors of the American Society for Reproductive Medicine have approved this report.

This document was reviewed by ASRM members, and their input was considered in the preparation of the final document. The following members of the ASRM Ethics Committee participated in the development of this document: Sigal Klipstein, M.D.; Sina Abhari, M.D.; Paula Amato, M.D.; Aishwarya Arjunan, M.S., M.P.H.; Tolulope Bakare, M.D.; Kim Bergman, Ph.D.; Michelle Bayefsky, M.D.; Zeki Beyhan, Ph.D.; Katherine Cameron, M.D.; Susan Crockin, J.D.; Colleen Denny, M.D.; Eve Feinberg, M.D.; Elizabeth Ginsburg, M.D.; Jessica Goldstein, R.N.; Insoo Hyun, Ph.D.; Iris Insogna, M.D., M.B.E.; Jeanne O’Brien, M.D.; Torie Comeaux Plowden, M.D., M.P.H.; Gwendolyn Quinn, Ph.D.; Robert Rebar, M.D.; Jared Robins, M.D., M.B.A.; Chevis N Shannon, Dr.P.H., M.P.H., M.B.A.; Sean Tipton, M.A.; Katey Zeh, M.Div. The Ethics Committee acknowledges the special contribution of Julianne Zeweifel, Ph.D., and Sigal Klipstein, M.D., in the preparation of this document. All Committee members disclosed commercial and financial relationships with manufacturers or distributors of goods or services used to treat patients. Members of the Committees who were found to have conflicts of interest on the basis of the relationships disclosed did not participate in the discussion or development of this document.

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