A grieving Concord family’s decision to donate the heart, liver and other organs of their dead 21-year-old son has been welcomed, even honored.
But their demand to save another part of his body — sperm — is far more contentious, traversing an ethical, moral and legal minefield.
U.S. Military Academy Cadet Peter Zhu was fatally injured last month in a skiing accident at West Point.
Distraught, parents Yongmin and Monica Zhu hired a lawyer and went to court, seeking to save their son’s sperm to memorialize him and carry on the family name.
“Our son’s dying wish was to become a father and to bring children into this world,” his parents wrote in a court petition filed Friday in Westchester County, N.Y., where Peter was being kept on life support at Westchester Medical Center. “Our family has been torn apart this week by the loss of our precious son.
“We now beg the court not to further devastate our family by eliminating the possibility of preserving some piece of our child that might live on,” they said in court papers.
A judge agreed, directing the hospital to retrieve the sperm and store it pending a court hearing March 21. The Zhus could not be reached for comment on Tuesday. Attorney Joseph R. Williams said he was “proud of the successful and landmark efforts made” on behalf of the Zhus but said “the case remains pending.”
“As you would expect, it is a very bittersweet result for the family and, out of respect for their privacy, we cannot discuss it further at this time,” Williams said.
But experts at Stanford University and the University of California, San Francisco medical centers say that sperm is not like other organs. They understand the profound loss felt by the family. But they said they only would have granted such a request by a spouse — not a parent — or with written documentation from Peter Zhu himself.
“We have a responsibility to this child,” said Barry R. Behr, professor of Reproductive Endocrinology and Infertility at Stanford University Medical Center. “We need to balance this terrible tragedy with the ethics of and concern for the potential resulting person.”
John Muir Medical Center of Walnut Creek, the trauma center for Contra Costa County, has done post-mortem sperm collection in some trauma patients who have been declared brain dead, at the request of the family.
The technical part — post-mortem semen retrieval — is easy, said Dr. James F. Smith, director of Male Reproductive Health in the Department of Urology at UCSF.
“But the rest has layers and layers of complexity,” Smith said.
“Without his express consent, without him there to say it’s OK to do, we’re doing it against his wishes,” Smith said. “We’re doing battery on him.”
Before his accident, Peter Zhu decided that he wanted to become an organ donor, and specified that on his California driver’s license.
The family asserts in its appeal to the court that Peter also wanted a family.
“When Peter was alive, he often told us how he wanted children of his own one day, and that he wanted to give us grandchildren,” the family said in its court filing. “Peter told us that he wanted to have five children, and that his dream was to live on a ranch with his family and raise horses. We often joked that it would be expensive to raise five children, but Peter was adamant that he wanted a large family.”
The sperm would offer them solace, as well, they said. “We are desperate to have a small piece of Peter that might live on and continue to spread the joy and happiness that Peter brought to all of our lives.”
And there are deep cultural reasons to save it, they added. Peter was their only son, and because of China’s one-child policy, there are no male cousins.
“Our family comes from China and an extremely important part of our Chinese culture is the tradition of carrying on our family lineage,” they said.
As advances continue in the area of assisted reproduction, requests for sperm procurement from the dying or recently deceased is becoming more frequent, according to 2013 research published in the journal Fertility and Sterility by pediatrician David Magnus, director of the Stanford Center for Biomedical Ethics and co-Chair of the Ethics Committee for the Stanford Hospital.
But the law in the United States is largely silent about the procedure. And unlike organs and tissues, which are donated to others to save lives, sperm is classed as a renewal tissue and is not explicitly included in the Uniform Anatomical Gift Act. Use of the sperm through in vitro fertilization or surrogacy is regulated by individual states.
The lack of regulation, combined with major ethical issues and the urgency of a death, highlights the need for individual medical institutions to have a protocol in place to ensure reasoned, fair, and consistent decision-making, according to Magnus.
“Each program makes up own policies. … We don’t have homogeneity or uniformity with respect to what programs will do,” said Arthur L. Caplan, Professor of Bioethics at New York University Langone Medical Center, who in the 1990s surveyed 273 infertility centers about the practice. He calls for greater standardization of the policies, perhaps adding sperm to permissible tissues under the organ donation law.
Some other nations have reached societal consensus about posthumous sperm retrieval, he said. Holland and some other European nations prohibit it. In contrast, Israel is supportive.
“In general, Americans get uncomfortable telling people how to have babies,” he said. “We have said, ‘Keep the government out of the bedroom,’ not giving the government much sway in deciding who can parent.”
The four organ-recovery organizations that serve California do not perform the procedure but would coordinate organ, eye, and tissue recovery with sperm or egg recovery done by the urologist or family physician, ensuring that both recoveries can be done if needed, said Jim Martin, chief executive officer of Donate Life California, which administers California’s organ donation network.
Although there is no governmental regulation of United States, several professional societies have issued recommendations, according to Stanford’s Magnus.
The American Society for Reproductive Medicine recommends that “in the absence of a written directive, it is reasonable to conclude that physicians are not obligated to comply with either request (for sperm extraction or use of extracted sperm) from a surviving spouse or partner.” Its guidelines say that sperm requests should be granted only to surviving spouses or life partners, not parents, and that there should be a grieving period before sperm is used.
Stanford recently saved sperm from a dead man, said Behr, but the patient and his wife had recently undergone infertility treatment and planned for his death.
The Westchester hospital lacked expertise or an established protocol — so it was faced with a difficult decision at the time of the family’s urgent request. Because the hospital had never conducted the procedure under such circumstances, it sought authorization from New York Supreme Court Judge John Colangelo.
Stanford and UCSF say the decision is too important to be rushed. Their policies were created by teams, over time.
Before rushing to retrieve the sperm, future challenges must be considered, the doctors agreed.
“With whom would he have wanted to have the child?” asked UCSF’s Smith. “Where would the egg come from, his mom? A stranger? Would he have trusted his mother or father to pick an egg donor? Who will raise the child?”
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