Blog

Posthumous Reproduction: Life after Death?

Emily Hanberry

Associate

Tel:       403.692.5217
Email:  ehanberry@vogel-llp.ca

A Federal Judge in New York recently ruled that the parents of a 21-year-old, who was fatally injured in a skiing accident earlier this year, could use their deceased son’s frozen sperm to attempt to produce a child. The Judge awarded the parents the ability to attempt conception with a surrogate mother using their late son’s sperm. The parents were previously granted a Court Order to retrieve and freeze their deceased son’s sperm after he underwent organ harvesting surgery shortly after his death.

In his decision, New York Supreme Justice John Colangelo stated that there were no restrictions, in state or Federal law, which prohibited the parents’ request, but added that posthumous reproduction was not an issue that was frequently seen by the Courts. The Judge noted that, in the rare cases where the Court has been asked to weigh in on the issue of posthumous reproduction, the deciding factor had been the deceased’s intent. The Judge cited a 2008 case where a Court had ordered destruction of a man’s sperm pursuant to a written request he had made during his lifetime, contrary to his widow’s claim that her late husband’s sperm was her property. Conversely, the Judge also cited a 1993 case, where the Court held that a deceased’s man’s sperm should not be destroyed, given this written intent that it be stored for possible future use by his long-term partner.

In support of their application, the parents of the deceased 21-year-old produced evidence of conversations they had had with their son wherein he stated that he wanted children and that his dream was to have five children, live on a ranch and raise horses. The parents, who were Chinese, also listed the cultural importance to their family in preserving their son’s genetic material. The parents noted that, during his lifetime, their son had felt and expressed a keen sense of responsibility to carry on his family name and legacy.

The Judge stated that the parents had not yet decided whether they would try to use their late son’s sperm to attempt conception with a surrogate mother.

2019-08-01T09:54:26-06:00August 13th, 2019|

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