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Posthumous assisted reproduction

Posthumous assisted reproduction
Literature review current through: Jan 2024.
This topic last updated: Aug 30, 2023.

INTRODUCTION — Assisted reproductive technologies (ART), including in vitro fertilization (IVF) and cryopreservation of gametes (eggs and sperm) and embryos, are intended to address an innate human drive - the desire to reproduce. These procedures, which enable human reproduction across a myriad of medical and social situations, also make it possible to create life using gametes or embryos from a genetic parent who is no longer living.

Posthumous assisted reproduction (PAR) is the process by which ART is used to establish pregnancy and produce genetic offspring after the death of the parent. This distinctly modern phenomenon raises numerous challenges for patients, their families, clinicians, and society at large.

In this topic, when discussing study results, we will use the terms "woman/en" or "patient(s)" as they are used in the studies presented. We encourage the reader to consider the specific counseling and treatment needs of transgender and gender-expansive individuals.

HISTORY — Postmortem conception by artificial insemination using cryopreserved sperm has been available since the 1950s [1,2]. One of its first uses was to offer males in high-risk professions (eg, astronauts, soldiers) an option for fathering children in the event of injury or death. Postmortem sperm retrieval was first reported in 1980. Development of now routine techniques, such as oocyte retrieval, in vitro fertilization, and cryopreserved embryo transfer, expanded the possibilities of parenting after death for both males and females.

PREVALENCE — Few studies have assessed the utilization of posthumous assisted reproduction (PAR), and an accurate number of births that have resulted from PAR is not known. Several factors likely contribute to the lack of information. First, PAR probably accounts for a relatively small proportion of all assisted reproductive technology (ART) procedures. In addition, individuals who request gamete or embryo banking for PAR may never actually use them [3,4]. Lastly, both patients and clinicians may be reluctant to report these pregnancies and births in the medical literature to avoid drawing media attention to this controversial practice. Nevertheless, it seems inevitable that PAR will gain more public awareness and acceptance as utilization of ART and fertility preservation services increase [5].

USE OF POSTHUMOUS REPRODUCTION — Posthumous reproduction is intended to fulfill a couple's desire to reproduce. Since it is considered within the context of the untimely death or imminent demise of at least one genetic parent, it is assumed that at least one invested party, including the intended social parent(s), desires children through posthumous reproduction and that the requisite gametes or embryos are available.

The motivation for posthumous reproduction may be shared by both the deceased and surviving parties or may originate from surviving parties alone. Survivors may wish to use gametes or embryos that were previously stored or request gamete retrieval from a deceased or terminally ill loved one. In addition, unrelated third-party recipients might receive gametes or embryos from deceased genetic parents through anonymous donation.

The following table outlines multiple scenarios in which requests for posthumous reproduction may arise (table 1). Authorities disagree upon when posthumous reproduction is justified in these various situations [6]. In the absence of clear medical, ethical, or legal contraindications, clinicians must ultimately decide if a specific request for posthumous reproduction warrants consideration. (See 'Consent' below.)

PROCEDURES FOR OBTAINING GAMETES AND EMBRYOS — Whether intended for posthumous use or otherwise, the procedures used to obtain gametes and create embryos for assisted reproduction remain the same. Gametes are typically collected while the source parents are alive, but postmortem gamete retrieval is possible, when necessary. Strategies for procurement depend on the source and expected use.

Males — Methods for obtaining sperm include:

Masturbation [6,7]

Electroejaculation [6,7]

Aspiration of sperm from the epididymis or vas deferens [6,7]

Epididymal biopsy [6,7]

Testicular sperm extraction (TESA) [6,7]

En bloc excision of the testes [7]

Masturbation and electroejaculation are appropriate for retrieving sperm from neurologically intact males with normal semen production. Surgical techniques may be used to obtain sperm from males who cannot produce an adequate sample by ejaculation and may also be used to obtain sperm from critically ill or recently deceased males. Viable sperm can be retrieved from a corpse up to 100 hours after death [8]. Live births have resulted from sperm retrieved postmortem, but experience suggests that earlier retrieval increases the probability of obtaining useable gametes [4].

Depending on the quantity and quality of sperm available, specimens may be used for insemination or in vitro fertilization (IVF) with or without intracytoplasmic sperm injection (ICSI). Although a single ejaculate from a healthy adult male can yield millions of viable sperm, IVF with ICSI is the most efficient fertilization technique and may be preferentially used when sperm supply is limited to what has already been retrieved or stored, as multiple attempts with IVF and/or ICSI are possible from one cryopreserved sample.

Females — Oocytes are most commonly obtained through controlled ovarian hyperstimulation and transvaginal ultrasound-guided oocyte aspiration. Embryos are created via IVF with or without ICSI. These procedures, as well as their success rates and outcomes, are described in detail separately (see "In vitro fertilization: Overview of clinical issues and questions" and "Intracytoplasmic sperm injection" and "Assisted reproductive technology: Pregnancy and maternal outcomes"). When the eggs or embryos from a deceased female are to be used for posthumous reproduction, a properly consented recipient (gestational carrier) is required. (See "Gestational carrier pregnancy".)

It may be technically feasible to recover viable oocytes from critically ill or recently deceased females without prior ovarian stimulation. In 2011, an Israeli court granted doctors permission to recover and freeze eggs from a 17-year-old female who died in a car accident, but declined to permit their fertilization [9]. A similar request to retrieve eggs from a comatose female in the United States was rejected by the patient's medical team on ethical grounds [10]. Alternate techniques that might provide oocytes for assisted reproduction and posthumous conception when ovarian stimulation is not possible include unstimulated ("natural cycle") IVF and surgical excision of whole ovaries or strips of ovarian tissue for either transplantation or in vitro maturation (IVM) of oocytes and subsequent IVF. The utility of these techniques in posthumous reproduction and in other areas of assisted reproduction remains to be determined. (See "Fertility and reproductive hormone preservation: Overview of care prior to gonadotoxic therapy or surgery".)

CRYOPRESERVATION — The ability to successfully cryopreserve gametes, embryos, and reproductive tissues for later use makes posthumous reproduction feasible [11] and allows time for mourning, deliberation of options, and resolution of legal issues. In addition, cryopreservation of surplus gametes/embryos often permits multiple attempts at conception from a single gamete collection or in vitro fertilization (IVF) cycle. (See "Fertility preservation: Cryopreservation options".)

Thawed-cryopreserved specimens are capable of establishing successful pregnancies years after their initial storage [12]. Controlled thawing of frozen specimens allows for precise and convenient coordination of procedures, such as insemination, IVF, and embryo transfer, as appropriate.

Embryo — Embryo cryopreservation is a proven clinical procedure with embryo survival estimated to be 60 to 80 percent after slow freezing [1]. In the United States, live birth rates after transfer of thawed embryos using nondonor oocytes from infertile females less than 35 years old are approximately 45 percent, with a mean of 1.1 embryos transferred. This compares favorably with the live birth rate of approximately 29 percent for fresh IVF cycles in similarly aged females receiving a mean of 1.3 embryos per transfer [13].

Oocyte — Mature oocyte cryopreservation has become part of routine clinical practice at many ART centers and is no longer considered experimental by the American Society for Reproductive Medicine (ASRM) [14]. We expect cryopreservation of oocytes for posthumous reproduction to become more prevalent as increasing numbers of oocytes are cryopreserved for both medical and social reasons [15]. (See "Fertility and reproductive hormone preservation: Overview of care prior to gonadotoxic therapy or surgery" and "In vitro fertilization: Overview of clinical issues and questions", section on 'When are donor oocytes used?' and "Fertility preservation for deferred childbearing for nonmedical indications".)

Ovarian tissue — Ovarian tissue cryopreservation is a newer technique that is primarily used in fertility preservation for pre-pubertal females or in reproductive-aged females who do not have an opportunity to undergo egg or embryo cryopreservation [16] (see "Fertility and reproductive hormone preservation: Overview of care prior to gonadotoxic therapy or surgery"). With increasing use of ovarian tissue cryopreservation, it is likely that requests for PAR using frozen tissue will arise. However, practical use of cryopreserved ovarian tissue for PAR is expected to remain limited as long as the tissue must be transplanted orthotopically or heterotopically to a recipient to achieve spontaneous or assisted conceptions [17].

Sperm — When the male is the partner at risk, sperm are typically cryopreserved after the specimen is obtained. Depending on the quantity and quality of cryopreserved sperm available, the thawed specimens may be used for intrauterine insemination or IVF with or without intracytoplasmic sperm injection (ICSI) when pregnancy is desired. Although a single ejaculate from a healthy adult male can yield millions of viable sperm, IVF with ICSI is the most efficient fertilization technique and may be used preferentially when sperm supply is limited to samples already retrieved or stored, as multiple attempts with IVF and/or ICSI are possible from one cryopreserved sample. (See "Intracytoplasmic sperm injection".)

Testicular tissue — Cryopreservation of testicular tissue from pre-pubertal males remains investigational. There have been no reported births resulting from frozen-thawed prepubescent testicular tissue in humans [16].

CONSENT — The clinician's decision to fulfill the request for posthumous reproduction should depend on the presence or absence of informed consent from the deceased gamete provider, the relationship of the requester to the deceased, and the perceived balance of benefit versus harm. We consider perimortem gamete retrieval when the donor consented to the procedure or made his/her approval clearly known through a non-invested third party, such as their physician or attorney. Health care providers should speak to patients about their desires toward posthumous reproduction when discussing topics such as organ donation, advanced directives, family building or fertility preservation and document those wishes whenever possible. Written consent for posthumous use of gametes or embryos should be obtained before retrieval and storage. Advanced directives and living wills should be in place to ensure that the wishes of the deceased are followed and that children born as a result of posthumous reproduction have the right to inherit, if intended. (See 'Legal issues' below.)

Premeditated posthumous reproduction — Ideally, the deceased has provided consent to use his/her gametes or embryos for postmortem conception. When the possibility of death is anticipated, individuals with chronic illnesses or soldiers entering combat situations may choose to cryopreserve gametes for future and/or posthumous use [18]. As long as the deceased delegates authority to use those gametes to a named individual, then the issues of autonomy and consent are satisfied.

As part of standard procedure for in vitro fertilization (IVF), patients commonly sign an agreement regarding disposition of frozen embryos in the event that one or both of the genetic parents dies. When the agreement provides the surviving partner the right to use cryopreserved embryos posthumously, there is no question of consent or respect for autonomy. However, if posthumous use is not specifically discussed in the agreement, then the ability use gametes for posthumous reproduction is less clear and varies, in part, with the ethics provisions of each institution. With increased use of assisted reproduction and an abundance of cryopreserved gametes and embryos, cases such as these are likely to become more frequent in clinical practice.

Unplanned posthumous reproduction — The more common situation for the majority of reproductive-aged individuals is that posthumous reproduction is not premeditated. In the absence of specific consent for the postmortem use of reproductive cells or tissues by the deceased gamete provider, the use of posthumous reproduction is more problematic. The key question is not whether the deceased wanted children while they were alive, but rather if they would have wanted a child to be born using his/her genetic material after his/her death [10,15].

Although some authorities propose that "implied consent" should be sufficient to honor a request for posthumous reproduction [19], an expressed desire to reproduce while alive does not constitute consent for posthumous reproduction and may fail to honor the reproductive autonomy of the deceased. This concept is well-illustrated by a study that surveyed 106 couples presenting for their initial infertility consultation and observed that 22 percent of these individuals, while highly motivated to conceive, would not permit posthumous reproduction [15]. In addition, 25 percent of couples disagreed in their attitudes about posthumous reproduction and 25 percent of the participants inaccurately predicted their partner's preferences about it. A second study of nearly 500 individuals undergoing IVF reported that nearly 75 percent of males and 62 percent of females consented to leave cryopreserved embryos to their partners for posthumous reproduction [20]. Consistent with earlier findings, consenting partners agreed with one another's preferences regarding posthumous reproduction in most but not in all cases (87 percent agreement). Thus, acting in accordance with the wishes of the deceased may remain problematic, even when an intimate partner serves as the surrogate decision maker.

In addition to requests to use previously cryopreserved gametes or embryos, providers may also be asked to retrieve gametes from an incapacitated or recently deceased individual. In such scenarios, the ethical questions of posthumous reproduction are further complicated by the invasive nature of the procedures (eg, testicular biopsy, orchiectomy, egg retrieval, or oophorectomy) required for harvesting gametes from an individual who is unable to give informed consent. It is difficult to argue that gamete retrieval is a medically necessary procedure that confers direct benefits to the gamete provider. The requester, by nature, is invested in the process and may not be able to separate his/her own desires toward posthumous reproduction from the interests of the gamete provider [21]. Given that harvesting procedures are time-sensitive and require swift decision-making by the care team and medical-legal surrogate, the physician may wish to consult a hospital ethics committee and/or require the requesting party to obtain an emergency court order to establish ethical and medical-legal grounds for the procedure. This may be difficult to coordinate on an emergency basis. For this reason, we recommend that institutions or practices develop protocols for handling requests for posthumous reproduction [22].

The relationship of the requester to the deceased may also impact a clinician's decision to fulfill or deny a request for posthumous reproduction. Posthumous reproduction is often sought by the partner of the deceased, although other parties, such as parents and other closely-related relatives, may also be involved [6]. There is no clear consensus on who should be allowed to use the genetic material of the deceased. Some authorities believe that surviving partners are the only party with an appropriate claim to the reproductive tissues of their deceased loved one [6]. Others view posthumous reproduction as justifiable under broader circumstances and would extend its use beyond the original parental project when certain conditions are satisfied [6,23]. For example, the deceased may have approved gamete or embryo donation in the event of his/her death, and an infertile couple may be willing to use such embryos. In all cases, appropriate counseling and informed consent by the proposed recipient(s) is are absolute requirements. Minimum waiting periods for up to one year in the case of known recipients have also been recommended by some authorities in order to allow for adequate grieving to take place [6].

ETHICAL ISSUES — The following basic principles create a framework for the ethical consideration of posthumous reproduction: respect for autonomy, beneficence, non-maleficence, and social justice [22]. These principles implore the clinician to carefully examine posthumous reproduction from the perspective of all parties involved. These parties may include the gamete donor, the gestating female, the rearing parents, and, importantly, the child [23].

Respect for autonomy — Respect for autonomy honors the rights of individuals to make personal decisions [6,24]. In posthumous reproduction, the autonomy of the prospective gamete donor is often weighed against the autonomy of the requester. Ideally, informed consent from both parties should be present. In general, both clinicians and survivors should strive to act in accordance with the expressed or presumed wishes of the deceased. When such wishes are not known, clinicians must ask whether the balance of benefits versus harms for the survivors, the future child, and society warrant honoring a posthumous reproduction request.

Beneficence — The principle of beneficence requires that health care providers act in the best interest of their patients [24]. The desire to reproduce is considered by many to be a central human drive. Posthumous reproduction may provide peace of mind to a soldier or to the terminally ill, ease the pain and suffering of a surviving partner or family members, and give life to a child that may otherwise never have been born. By any of these outcomes, posthumous reproduction may be viewed as a beneficent act that promotes the well-being of others.

Non-maleficence — Non-maleficence is a key guiding principle in medical ethics that urges physicians to first "do no harm" [24]. As with any medical treatment, clinicians should only offer posthumous reproduction when the expected benefits outweigh the potential adverse outcomes. The general medical risks of assisted reproduction (eg, multiple gestation, ovarian hyperstimulation syndrome) are well known and do not impose any additional harms to posthumous assisted reproduction (PAR) participants.

Risks to offspring should always be considered with assisted reproduction. In the context of posthumous reproduction, little is known regarding the psychosocial development of children born to parents who were previously deceased. Some authors have cautioned that the knowledge and possible stigma of being born to a dead parent could subject children conceived posthumously to undue psychological stress or harm [23]. However, extrapolation of data from children who otherwise lose parents at a young age or who are raised in a single-parent household suggests that the risks, if any, are likely minor. Further, it is tempting to argue that children conceived posthumously may do better than children from unintended pregnancies. Indeed, children born by posthumous reproduction are clearly wanted and may be highly cherished by surviving family as a living remembrance of their deceased parent [6].

In the end, one can ponder whether it is better for children conceived posthumously to be born to a dead genetic parent than to never be born at all [21]. Further study on the psychosocial effects of posthumous reproduction on offspring and other surviving family members is warranted [25].

Social justice — Social justice is a fourth principle of medical ethics, which challenges the clinician's primary role as a patient advocate [24]. This tenant calls for the fair distribution of health care resources such that they provide the greatest benefit to society as a whole. Posthumous reproduction is a financially costly endeavor with few immediately tangible benefits for society. The costs of PAR procedures and gamete/embryo storage are significant. Stored reproductive tissues may go unused or fail to result in children, resulting in little or no return on spent resources [3]. A complex cost analysis might determine whether the life created from PAR could ultimately result in a net loss or gain of resources for society. However, in the meantime, it is appropriate to question whether we should allocate health care resources toward this practice when many basic health care needs remain unfulfilled.

Some insurers in states which cover costs of fertility treatment cover a single cycle of in vitro fertilization prior to chemotherapy for cancer patients. Sperm cryopreservation is also covered prior to cancer treatment in some states. Posthumous reproduction would be covered only if the person using the embryos in order to conceive had a diagnosis of infertility.

LEGAL ISSUES — Legal consultation can benefit all parties involved, and should be obtained prior to use of gametes/tissues for posthumous reproduction. Properly documented consent forms and advanced directives concerning the collection, storage, and use of gametes or embryos for posthumous reproduction will diminish questions over ownership and use of reproductive tissues [15]. Clinics should consider insisting upon a court order before perimortem gamete collection or before permitting posthumous release/use of stored gametes when consent for posthumous use is unclear. A living will may resolve issues of inheritance by naming unborn genetic children as heirs if this is the intent of the deceased genetic parent.

A detailed exploration of the law surrounding posthumous reproduction is beyond the scope of this topic review, but it is helpful to be familiar with the major legal issues.

Legality — Laws concerning posthumous reproduction vary internationally [26]. The United States does not regulate posthumous reproduction at the federal level. State laws are largely permissive with case law presiding over the majority of pertinent legal issues [7,18,26]. Israel, a country in which most young people are required to enter into military service, has national policies that deal specifically with perimortem gamete retrieval. In Israel, it is legal to retrieve and use posthumously obtained gametes at the request of a spouse [27]. The United Kingdom also allows collection and storage of posthumously obtained gametes, but forbids anything but immediate use of such gametes. Many other European countries forbid the practice outright [24].

Ownership of gametes and embryos — Issues regarding ownership of gametes and embryos are difficult because reproductive tissues are not clearly recognized as either persons or property [11,28]. Application of principles concerning property and organ donation fail to suffice when the prospective child is considered. Precedent over legal ownership, storage, and use of reproductive tissues is growing, but far from resolved [7,18,21,29].

Inheritance rights of children — Children born from posthumous reproduction should be protected under the law and be afforded the same rights as children born to living genetic parents [11,28]. However, questions of legitimacy, allocation of social security benefits, and estate division remain challenging. Some states will not recognize the rights of children conceived posthumously to collect social security benefits or allow them to claim inheritance rights unless named specifically in a living will [18,21,29]. Others place time limitations for filing such claims, such that an estate may be closed within a "reasonable period of time" following an individual's death [18].

Third parties — If third parties are to receive gametes or embryos from a deceased genetic parent, this should be fully disclosed and the recipients should be appropriately counseled. Informed consent from the donor and infectious disease testing is likewise mandatory in these cases.

SOCIETY STATEMENTS — Published guidelines from the ASRM and the European Society of Human Reproduction and Embryology (ESHRE) discuss posthumous reproduction, but for the most part allow physicians to determine when a request for posthumous reproduction should be honored [6,23].

The ASRM Ethics Committee statement makes the following points [30]:

Posthumous gamete (sperm or oocyte) procurement and reproduction are ethically justifiable if written documentation from the deceased authorizing the procedure is available. Physicians should not override prior denial of posthumous reproduction by a deceased gamete provider.

Programs are not obligated to participate in posthumous assisted reproduction activities, but should develop written policies regarding the specific circumstances in which they will or will not participate.

In the absence of written documentation from the decedent, programs receiving requests for posthumous gamete procurement or reproduction should only do so when the requests are initiated by the surviving spouse or life partner.

It is very important to allow adequate time for grieving and counseling prior to the posthumous use of gametes or embryos for reproduction.

Programs should adhere to applicable state laws regarding PAR and should advise patients to seek legal counsel regarding their and their future offspring's legal rights.

The ESHRE task force recommendations are somewhat less open-ended. They stipulate that posthumous reproduction is acceptable when [6]:

The posthumous reproduction request is from a surviving partner who was part of the original parental project.

Written consent was given by the deceased prior to the use of his/her gametes or embryos.

The surviving partner is appropriately counseled.

A minimum waiting period of one year is imposed before treatment.

The ESHRE task force did not reach a consensus regarding justification for posthumous donation to parties other than the surviving partner. In cases where third parties might receive gametes or embryos from a deceased genetic parent, however, the committee advised that the recipients should be fully informed and counseled regarding the uncertain psychosocial implications for the prospective child.

Although the published ASRM and ESHRE guidelines are not comprehensive, they do provide an appreciation for the scope of the problem and highlight issues deserving special attention. Reproductive specialists should be aware of these recommendations, as well as any local laws or hospital policies that might affect delivery of posthumous reproduction services. In addition, it is prudent for centers to have a set of standard policies and procedures in place, so they are prepared to answer requests for posthumous reproduction when they arise [22]. Legal counsel and consultation from appropriate ethics committees, mental health and social work professionals are highly recommended on a case-by-case basis.

SOCIETY GUIDELINE LINKS — Links to society and government-sponsored guidelines from selected countries and regions around the world are provided separately. (See "Society guideline links: Female infertility".)

SUMMARY AND RECOMMENDATIONS

Description – Posthumous assisted reproduction (PAR) is the process by which reproductive technologies, such as gamete retrieval, in vitro fertilization (IVF) and cryopreservation of gametes and embryos, are used to establish pregnancy and produce offspring after the death of a genetic parent. (See 'Introduction' above.)

Ethical and legal issues

Clinician's role – Reproductive specialists are not bound to allow the use of previously stored gametes or embryos or to retrieve eggs or sperm from recently ill or deceased individuals, but may choose to honor requests for posthumous reproduction when no medical, ethical, or legal contraindications exist. (See 'Ethical issues' above and 'Legal issues' above.)

Guidelines – Providers should be familiar with published guidelines and local laws concerning posthumous reproduction. Consistent institutional policies and standard operating procedures should be established to guide posthumous reproduction decisions. Legal counsel and consultation from appropriate ethics committees, mental health and social work professionals are highly recommended on a case-by-case basis. (See 'Society statements' above.)

Issues for consent

Gamete donor – We consider perimortem gamete retrieval when the donor consented to the procedure or made their approval clearly known through a noninvested third party, such as their physician or attorney. (See 'Consent' above.)

-Providers should speak to patients about their desires toward posthumous reproduction when discussing topics such as organ donation, advanced directives, family building or fertility preservation and document those wishes whenever possible. (See 'Consent' above.)

-Written consent for posthumous use of gametes or embryos should be obtained before retrieval and storage. Advanced directives and living wills should be in place to ensure that the wishes of the deceased are followed and that children born from PAR have the right to inherit if intended. (See 'Consent' above.)

Existing partner

-Authorities agree that posthumous reproduction seems justified when written, informed consent is obtained prior to the death of the gamete provider(s) and when requested by a spouse or life-partner with whom a parental project was already in place. (See 'Consent' above.)

-When posthumous reproduction is to be used by a surviving partner, a waiting period of one year is recommended to allow for adequate grieving and counseling. (See 'Consent' above.)

Third-party gamete use – If third parties are to receive gametes or embryos from a deceased genetic parent, this should be fully disclosed, and the recipients should be appropriately counseled. Informed consent from the donor and infectious disease testing is likewise mandatory in these cases. (See 'Third parties' above and 'Consent' above.)

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References

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