Public Policy and Law

Clinical Ethics
2019, Vol. 14(1) 18–25
Expanding the use of posthumous ! The Author(s) 2018
Article reuse guidelines:
assisted reproduction technique: sagepub.com/journals-permissions
DOI: 10.1177/1477750918820648
Should the deceased’s parents journals.sagepub.com/home/cet

be allowed to use his sperm?

Efrat Ram-Tiktin1 , Roy Gilbar2 , Ronit B Fruchter3,

Ido Ben-Ami4, Shevach Friedler5 and Einat Shalom-Paz6

Abstract
The posthumous retrieval and use of gametes is socially, ethically, and legally controversial. In the countries that do not
prohibit the practice, posthumous assisted reproduction is usually permitted only at the request of the surviving spouse
and only when the deceased left written consent. This paper presents the recommendations of an ethics committee
established by the Israeli Fertility Association. In its discussions, the committee addressed the ethical considerations of
posthumous use of sperm—even in the absence of written consent from the deceased—at the request of either the
spouse or the deceased’s parents who wish to become the offspring’s parents or grandparents. It is concluded that
under certain conditions, a request by the deceased’s parents to posthumously use the deceased’s sperm is justified and
should be granted.

Keywords
Posthumous sperm retrieval, postmortem sperm, gamete retrieval, reproduction, ethics

Introduction
The development of gamete retrieval and cryopreserva-
tion for future use has enabled posthumous assisted
reproduction (PAR). This procedure is usually applied
in one of the followings scenarios: (1) the deceased
provides gametes before his death (e.g. before chemo-
therapy or radiotherapy) and (2) the gametes are
retrieved posthumously.
The storing of frozen sperm was originally devel-
oped for men undergoing surgery or other treatments
that could harm their fertility. Rothman1 described a
method for obtaining viable sperm in a postmortem
state. The advent of this technique, in the form of
micromanipulation to perform intracytoplasmic
sperm injection (which requires fewer sperm to achieve
a pregnancy), has resulted in increased interest in post-
mortem sperm retrieval and the practice has been
incorporated into clinical practice.
The posthumous use of sperm is sought in the
majority of cases by the deceased’s spouse (married
or in a significant relationship). However, there are
cases in which the deceased’s parents express an interest
in using the sperm, with the goal of raising the child
either as parents or as grandparents. This raises
social, bioethical, and legal issues that need to be
considered by clinicians, policymakers, and stakehold-
ers. In contrast to some countries that allow only the
deceased’s spouse to take advantage of PAR, it is the
opinion of the Israeli Fertility Association’s (IFA)
1
Department of Philosophy, Bar-Ilan University, Ramat-Gan, Israel
2
School of Law, Netanya Academic College, Netanya, Israel
3
IVF Unit, Department of Obstetric and Gynecology, Rambam Medical
Canter, Haifa, Israel
4
IVF & Infertility Unit, Department of Obstetrics and Gynecology, The
Yitzhak Shamir Medical Centre, Zerifin, Israel
5
IVF Unit, Department of Obstetric and Gynecology, Barzilai Medical
Center, Ashkelon, Israel
6
IVF Unit, Department of Obstetric and Gynecology, Hillel Yaffe Medical
Center, Hadera, Israel
Corresponding author:
Efrat Ram-Tiktin, Department of Philosophy, Bar-Ilan University,
Ramat-Gan, Israel.
Email: efrat.ram-tiktin@biu.ac.il
Ram-Tiktin et al.
Ethics Committee, which will be described below,
that—under specific circumstances—the use of the
deceased’s gametes by his parents is justified.a
The medical background
Very limited information is provided in the literature
regarding the outcome of pregnancies derived from the
use of postmortem sperm.3,4 A variety of medical
approaches, techniques, and timings of sperm retrieval
are suggested in the literature. However, due to the
scarcity of cases, no general recommendations are
available.5,6
Shefi et al.5 concluded that viable sperm is obtain-
able up to 36 h after death regardless of its cause. There
are various approaches available to obtain sperm from
a cadaver, including orchiectomy, epididymal sperm
aspiration, testicular sperm retrieval, and removing
the epididymis. However, there is no standard
approach.7 It is generally accepted that maximizing
the amount of sperm obtained will optimize the assisted
reproductive technologies (ARTs) outcome.
Other problems in postmortem sperm retrieval arise
because sperm is usually collected in cases where the
man’s fertility is unknown, so potential testicular sam-
ples with very few spermatozoa might be collected,
and/or the sperm donor may carry genetic or infectious
diseases that have not been tested for due to the cir-
cumstances. Moreover, sperm retrieval that is carried
out a long time after death is connected to higher DNA
damage and this may reduce fertilization and may
affect the ART results.8
PAR policies in Europe and the US
The practice of PAR and posthumous retrieval of game-
tes is influenced by cultural, social, ethical, and religious
values, thus resulting in a wide variation in policy.b
The European Society of Human Reproduction and
Embryology (ESHRE)18 has addressed the issue and
discussed reproductive autonomy and the welfare of
the future child. In the context of respecting reproduc-
tive autonomy, the ESHRE’s view is that although the
presence of cryostored gametes or embryos indicates
that a parental project was begun, it does not mean
that the deceased wished the continuation of the proj-
ect posthumously. Therefore, the ESRHE stresses the
need to raise the issue of posthumous use of gametes or
embryos when patients undergo a process of informed
consent prior to any kind of ART. The rationale of the
ESRHE is that PAR is justified only within an existing
parental project and only when the deceased left writ-
ten consent. Therefore, postmortem retrieval of game-
tes or the use of frozen gametes or embryos is not
allowed in the absence of explicit instructions by the
19
deceased prior to his/her death. In addition, only the
deceased’s spouse or partner can use the gametes or
embryos, and s/he is not allowed to donate them to a
third party (such as the deceased’s parents). However,
some members of the ESHRE Task Force that drafted
the guidelines argued that the use of PAR by a third
party is justifiable if prior consent was given.
The discussion of the Ethics Committee of the
American Society of Reproductive Medicine (ASRM)
on this subject is based on the assumption that the
essence of parenthood is not mere genetic continuity
but includes gestation and participation in childrear-
ing.19 Since the deceased will not take part in these
aspects of parenthood, it cannot be argued that the
right to parenthood is compromised by any prohibition
on the posthumous use of gametes or embryos.
According to the ASRM, the only relevant aspect of
the right to parenthood after death is genetic continu-
ity, which ought to be respected if the deceased explic-
itly expressed his wish that his sperm be used
after death.
Therefore, according to the ASRM guidelines,
before allowing posthumous reproduction, it is impor-
tant to verify that the deceased specifically expressed a
wish for continuity and stated that he is not opposed to
the use of his/her gametes or embryos by his spouse.
Moreover, the deceased’s desire for continuity can be
fulfilled only in cases where the surviving spouse shares
that desire. According to the ASRM, the spouse’s inde-
pendent and autonomous wish in this context must
be respected.
The ASRM addresses the difficulty in cases where
gametes were not deposited prior to death and their
retrieval posthumously might be objected to on the
grounds of violation of bodily integrity. In these
cases, it is far more complicated to determine the decea-
sed’s wishes if no written or oral consent was given
prior to death. Due to the spouse’s apparent conflict
of interest in the matter, his/her testimony should be
assessed with caution. Therefore, the ASRM concludes
that physicians are not duty bound to perform posthu-
mous sperm retrieval.
As for the use of a deceased’s gametes or embryos by
his parents, the ASRM states that the parents’ desire to
become grandparents does not give them the right to
control the fate of the deceased’s gametes since the
parents cannot argue that they are participants in the
couple’s reproductive project. Therefore, the ASRM
argues that parents have no claim regarding the decea-
sed’s gametes and conclude that requests made by the
deceased’s parents should be rejected.
In sum, professional ethical guidelines in Europe
and the US impose limitations on the posthumous
use of sperm. They require an explicit wish by the
deceased18 or an implicit wish if a parental project
20
was already begun.19 According to both the ESHRE
and the ASRM, the permission to use the embryos or
the gametes can be given only by the surviving spouse,
although the ESHRE report mentions a minority view
which allows for the use of the gametes or embryos by
a third party (including the deceased’s parents) if the
deceased gave his explicit consent.
The Israeli legal position
The legal position in Israel is complex and there is as
yet no specific legislation in this area.c The issue has
been considered by the Attorney General (A-G) who
published specific guidelines on the subject in 2003.20
They are binding for clinicians who work in the public
health care system. According to these guidelines, only
the deceased’s spouse is allowed to use the deceased’s
frozen sperm or to request its retrieval after death.
However, the courts are under no obligation to
follow these guidelines, and in some cases judges in
lower courts have deviated from them. In most cases,
the courts were willing to approve parents’ requests to
retrieve sperm shortly after death and decided to delay
their ruling on the use of the sperm by the parents when
time was not a pressing factor. The Israeli Supreme
Court has twice dealt with parents’ requests to use
their deceased son’s sperm.21,22 A summary of the var-
ious legal positions is presented in Table 1.
The IFA’s Ethics Committee’s position
and recommendations
The ethics committee of the IFA conducted a thorough
process of deliberation and discussion on the posthu-
mous retrieval and use of sperm with the goal of pro-
viding guidelines for clinicians as well as to influence
public policy, which currently lacks clarity on this
issue. The committee attempted to address the various
scenarios of posthumous use of sperm. Admittedly, the
IFA’s recommendations have no formal legal status.
They do, however, provide professional ethical guid-
ance to clinicians in their relationships with patients
and their relatives. The recommendations are also an
attempt to influence policymaking. Ultimately, clini-
cians who work in the public health care system will
have no choice but to follow the A-G’s guidelines if
they differ from the IFA’s recommendations.
In this article, we have chosen to present only the
ethical deliberation and argumentation on this issue
rather than its cultural and social aspects, in the hope
that the discussion will therefore be of value to clini-
cians and policymakers in a broad range of countries.
In formulating its recommendations, the committee
focused on two variables: first, whether the deceased’s
sperm was obtained before or after his death and
Clinical Ethics 14(1)
whether he expressed an explicit wish regarding its
use after his death; and second, the source of the
request: (1) the spouse, (2) the deceased’s parents who
wish to raise the offspring as their child, or (3) the
deceased’s parents who wish to raise the offspring as
their grandchild.
Guiding principles
Three guiding principles provided the framework for
the ethics committee’s discussion: first, a liberal society
should respect the freedom of the individual, including
the freedom to reproduce,d and should limit its inter-
vention to circumstances in which mental competence
is a concern or when conflicting values must
be balanced.
Second, since the deceased has ceased to exist, it is
not possible to attribute interests or rights to him.
Nonetheless, the committee members held that an indi-
vidual’s explicit wishes, as expressed during his lifetime,
should not be ignored. Following Kant,28 the commit-
tee reasoned that the obligation to respect the wishes of
the deceased is not an obligation toward the deceased
but rather to the individual while he was alive. From
the perspective of those who are living—even though
an individual has no way of knowing whether and in
what manner his wishes will be fulfilled after his
death—there is clear benefit in knowing, while an indi-
vidual is still alive, that after death his wishes will
be respected.
Third, since the potential offspring is only a hypo-
thetical entity, it has no rights.e Nevertheless and based
on an impersonal position, the committee’s view is that
society has an obligation to protect the fundamental
interests of future children while taking into consider-
ation the rights and interests of living individuals
involved in the matter.f In what follows, we describe
the committee’s recommendations in greater detail.
The deceased’s explicit or implicit wishes
Contrary to the ESHRE guidelines, the IFA position is
that postmortem retrieval of sperm should be allowed
for use by the deceased’s spouse and/or parents even if
the deceased did not leave explicit instructions and as
long as he did not express his objection to PAR. In our
view, this procedure does not violate the deceased’s
dignity any more than organ procurement. When the
deceased expressed an explicit wish that his sperm be
used posthumously and provided his wish accords with
those of the living and the protection of their rights, the
ethics committee is of the view that it is desirable to
respect his wish. However, in many cases, the deceased
has not expressed an explicit wish. Contrary to the
ESHRE position, the committee members hold the
Table 1. Legal position and IFA’s Ethics Committee’s recommendations on PAR.

Ethics Committee
Ram-Tiktin et al.

User of sperm by: Objective Spouse Y/N Condition Legal position recommendations

Spouse Wish to become The deceased did not express an Permitted even without the Permitted even without the
a mother explicit refusal to the use of deceased’s written consent23 deceased’s written consent
his sperm
Parents of the Wish to become Prohibited by the Supreme Prohibited
deceased parents Court22 and the
A-G guidelines
Wish to become No spouse Deceased’s wish is known A-G guidelines are unclear. Permitted by way of a prospec-
grandparents Lower courts permit.24 tive mother who wishes to
Supreme Court has no ruling on use identified sperm
the matter
The deceased did not leave A-G guidelines prohibit. Permitted if the parents present
explicit instructions Lower courts permit.25 proof of the deceased’s
Supreme Court has made no implicit wish
ruling on the matter, though
some judges in the Supreme
Court did not rule out
this option
Had a spouse who Spouse opposes the parents’ Supreme Court prohibits21 Some committee members were
is not interested wish to use the sperm opposed since the spouse
in using the sperm should have a right of veto.
Others were in favor and would
deny the spouse’s right of veto
Spouse does not oppose parents’ A-G guidelines do not permit. Some committee members were
wish to use the sperm Lower courts have approved opposed, claiming that only
such requests.26 the spouse can initiate a
Supreme Court has no direct parental project.
ruling on the matter Others were in favor when the
deceased had expressed a
wish that his sperm be used
posthumously with a pro-
spective mother
A-G: Attorney General; IFA: Israeli Fertility Association; PAR: posthumous assisted reproduction.
21
22
view that under certain circumstances (to be described
below), the use of the sperm should be allowed, where
there is evidence of the deceased’s implied wish (such as
implicit statements or indications from the deceased’s
behavior while he was alive).
The identity of the individual making the request
The deceased’s spouse. When the deceased explicitly
stated that his spouse can use his sperm and when
she indeed wishes to do so, the committee felt that
her wish should be granted, but only following an
appropriate mourning period of a year in order to
ensure that her choice is made autonomously and
after serious consideration.
When the deceased did not leave explicit instructions
regarding the use of his sperm and the spouse is inter-
ested in using it, the committee’s position accords with
the current legal position in Israel and the ASRM posi-
tion, namely that his implied wish should be clarified
based on the spouse’s statement. In this context, the
committee members did not ignore the fact that the
spouse has a dual role (expressing her personal wishes
and providing information about the deceased’s
wishes). Therefore, in view of the potential conflict of
interests, and in order to reduce the uncertainty regard-
ing the wishes of the deceased, the committee recom-
mends modifying the consent form for the depositing
of sperm, such that the patient will be required to seri-
ously consider his wishes and express them as clearly
and unambiguously as possible. From an ethical per-
spective, the committee members are of the view that as
long as it is known that there was no explicit objection
by the deceased to the posthumous use of his sperm,
the spouse’s reproductive autonomy should be
respected.
The deceased’s parents who wish to become the offspring’s
parents. This case was discussed by the Israeli
Supreme Court in the appeal of Shachar versus the
State of Israel.22 In that case, it was argued that one
can assume that any individual who dies without a
spouse or partner would wish to have a child after his
death. In addition, the deceased’s parents argued that
their right to parenthood should also be respected. The
Supreme Court decided to reject the parents’ request on
the grounds that the deceased’s spouse has the sole
and ultimate right to decide whether the sperm can
be used to fertilize her eggs. The ethics committee con-
curred with this decision for the following reasons:
First, there is no clear and unambiguous evidence
that every person would wish to have a child
posthumously if he died childless. Although several
studies suggest that the majority of men approve of
postmortem use of sperm, 14–26% are opposed.32,33
Clinical Ethics 14(1)
Furthermore, among religious groups the percentage
of those opposed is even higher.33
Second, notwithstanding the pain and grief of the
parents who have lost their son, they have already ful-
filled their right to parenthood (whether it was biolog-
ical or social).
Third, to grant the parents’ wish requires the assis-
tance of two women—an egg donor and a surrogate
mother—who will not be raising the child. These
women are willing, for their own reasons, to go
through various medical procedures that involve med-
ical risks, physical pain, and mental distress. The use of
women’s bodies not for their own benefit could none-
theless be justified if two conditions are met: First, they
express their autonomous consent and were not subject
to any form of exploitation or coercion. Second, the
use of their bodies will achieve a worthy objective.
Israel, for example, has determined that the goal of
fulfilling the right to parenthood for couples without
children is a worthy objective that justifies the use of
egg donation and surrogacy.g In the case of the decea-
sed’s parents, the committee takes the view that this
latter condition is not met, since the deceased’s parents
have already realized their right to parenthood.
Furthermore, unlike the usual case of surrogacy, in
which clinicians can medically assess the quality of
the sperm and the chances of successful fertilization
with some accuracy, in posthumous sperm retrieval
this assessment cannot be made. This adds to the dif-
ficulty in justifying the use of a woman’s body for the
benefit of others.
Fourth, in view of the fact that the offspring is only
a hypothetical entity, an impersonal examination of the
issue should be carried based on the fundamental inter-
ests of children. Research on children born from
gamete donation shows that many of them wish to
know the identity of their biological parents.36–38
Thus, the committee concluded that the creation of
filius nullius (a child without biological parents) is not
a desirable situation from the outset and constitutes
harm to the fundamental interests of children.
The deceased’s parents who wish to become grandparents. In
this context, the parents’ request can be made under
four different scenarios. In the first two, the deceased
had no spouse when he died. In the first, the deceased
explicitly expressed a wish that his sperm be used post-
humously, while in the second, his wish is unknown. In
this scenario, the parents base their request to use his
sperm on the grounds of his implied wish and are able
to present evidence of his wish for continuity after
his death.
The committee takes the view that in the first sce-
nario the deceased’s wish can be respected and that his
parents can donate his sperm to a sperm bank for joint
Ram-Tiktin et al.
reproduction with a prospective mother. The commit-
tee believes that in certain circumstances, such a sce-
nario has advantages over anonymous sperm donation,
which is the only legal option available for women who
wish to obtain donated sperm in some countries,
including Israel. For example, the future offspring
will know the identity of his biological father and will
have the benefit of a relationship with the deceased’s
family members, if they and his mother desire it.
In the second scenario, the committee held that if the
parents can convince the court of the deceased’s
implied wish to have a child posthumously, the use of
his sperm should be allowed for reproduction with a
prospective mother, based on the same arguments pre-
sented above. However, if the deceased’s parents
cannot convince the court regarding the deceased’s
wish, the request should be rejected.
The committee reached its conclusion based on the
following arguments: first, according to the second
guiding principle stated above, society’s obligations
toward the deceased derive from its commitment to
respect the wishes of an individual when he is alive. It
follows that the use of a deceased’s body should not be
allowed in a way that he might have opposed, but failed
to state this explicitly while alive. Respecting the decea-
sed’s wish, despite its lack of significance after death,
has some positive effect on an individual’s welfare
while alive.
Second, the committee members takes the view that
the depositing of the deceased’s sperm in a sperm bank
at the request of his parents with the aim of finding a
prospective mother, in the absence of any proof that
the deceased himself would have approved, creates a
practice of “child production” as a commodity. The
committee felt that the mere availability of gametes is
not a sufficient condition to justify the creation
of children.
In the third and fourth scenarios, the deceased had a
spouse but did not leave written instructions and his
parents base their request on his implied wish. In the
third scenario, the spouse is not interested in using the
deceased’s sperm and opposes the parents’ wish to do
so. In the fourth, the spouse is not interested in using
the sperm but has no objection to the parents’ wish to
do so. In considering the parents’ request, the commit-
tee takes the view that there is no right to grandparent-
hood, since the rights of parents do not include
the right to use the gametes of their children.
Nonetheless, even in the absence of a legitimate claim
right, the committee members considered arguments
for and against granting the parents’ request, including
the rights and interests of the spouse. The Committee
members were split over the status of the deceased’s
spouse in this context and whether she has the right
of veto.
23
Some committee members expressed the view that
the deceased’s parents should not be allowed to make
use of the sperm in the third and fourth scenarios.
Similar to the positions of the ESHRE and the
ASRM, they argued that bringing a child into the
world is a result of intimate relations between
the spouses and is based on their mutual wishes.
Therefore, in view of the spouse’s decision not to use
the sperm, and in the absence of the explicit wishes of
the deceased, the deceased’s parents should not be
allowed to use his sperm.
Other committee members held the view that the
spouse has a right of veto only when she and the
deceased have common children. In these circumstan-
ces, she can present a reasonable demand that addition-
al children not be born from his sperm in order to
maintain the integrity and distinct identity of her
family, without the introduction of half-siblings from
another woman. However, in the absence of common
children, they felt that the spouse should not have the
right of veto.
The general rationale to allow the parents to use the
sperm stated that if a specific action can benefit one
person and not harm another, then the action is mor-
ally permissible. More specifically, five points were pre-
sented: First, the spouse is not harmed since her
autonomous wish not to become pregnant from the
deceased’s sperm is maintained. Second, the implied
wish of the deceased for continuity can be respected
and realized through a reproductive project with a pro-
spective mother. Third, it broadens the opportunity
range of the prospective mother who might wish to
be impregnated with identified sperm. Fourth, it
becomes possible to respect the wish of the deceased’s
parents and to relieve their grief somewhat. Fifth, the
child will be raised by one biological parent and can
choose to have a relationship with the decea-
sed’s relatives.
As stated in the beginning of this section, the IFA’s
recommendations have no formal legal status. They
were formulated in order to provide professional ethi-
cal guidance to clinicians and to influence the legisla-
ture and the courts by presenting the various relevant
ethical considerations. Since the committee members
were split in their positions on the third and fourth
scenarios and could not even reach a majority view, it
was decided to present the various considerations. It
was thought that this presentation could be beneficial
for policy makers and judges who deal with PAR.
Summary
Contrary to the guidelines issued by the ASRM and the
ESHRE, which allow the use of a deceased’s sperm
conditional on there being explicit instructions from
24
the deceased and agreement by the spouse, the IFA’s
guidelines allow the use of the deceased’s sperm even
when his wish is only implied and when he did not leave
behind a spouse. Furthermore, unlike the guidelines
issued by the ASRM and the ESHRE, the IFA’s guide-
lines allow the deceased’s parents to use his sperm and
to produce a grandchild by way of an arrangement
with a prospective single mother.
Although cultural aspects unique to Israel (such as
the culture of bereavement and Israel’s pro-natalist
positionh) played their part in the committee consider-
ations, the ethical arguments presented above can
stand in their own right regardless of any particular
social and cultural background. It is hoped that these
ethical arguments will contribute to the discussion of
posthumous artificial reproduction and particularly to
the discourse surrounding the interests of the decea-
sed’s parents.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with
respect to the research, authorship, and/or publication of
this article.
Funding
The author(s) received no financial support for the research,
authorship, and/or publication of this article.
ORCID iD
Efrat Ram-Tiktin http://orcid.org/0000-0002-8207-397X
Roy Gilbar http://orcid.org/0000-0002-5629-5608
Notes
a. For the complete report, see IFA.2
b. For the legal position in various jurisdictions, see, for
example Simana.9 For the ethical aspects, see, for example
Strong et al.,10 Orr and Siegler,11 Landau,12 Ravitsky,13
Tremellen and Savulescu,14,15 Kroon,16 and Ram-Tiktin
and Gilbar.17
c. For an extensive review and analysis of the rulings on PAR
in Israel, see Ram-Tiktin and Gilbar.17
d. See, for example, the discussion in Herring.27(pp370–374)
e. The Israeli Legal Capacity and Guardianship Act 1962
states in Section 1 that “every person is eligible for rights
and subject to duties from birth to death.”
(our emphasis).29
f. Given the nonidentity problem that emerges from various
questions of procreation, we can in general voice our con-
cern for children’s fundamental needs and interests without
referring to a specific procreational choice (by using imper-
sonal intuition according to which the desirability of an
action can be evaluated regardless of its effect on the
object of the action). However, it can be argued that
even if we evaluate PAR from a person-affecting intuition
(according to which the value of the action depends on its
Clinical Ethics 14(1)
effects on the object of the action), there are grounds for
rejecting the position that a child born from posthumous
conception is worse off than he would have been if he had
not been conceived in the first place (see, e.g. Strong
et al.10). For additional discussions on the impersonalist
and person-affecting responses to the nonidentity problem,
see Parfit30 and Heyd.31
g. The Israeli Embryo Carrying Agreement Act 199634 and
the Eggs Donation Act 201035 allow a woman to donate
her eggs to a prospective mother who will use a surrogate
to carry the embryo.
h. See, for example Birenbaum-Carmeli and Carmeli,39
Kahn,40 and Remennick.41
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