artificial insemination after death?

January 7, 2011 8:27 AM

Is it legally and medically possible to set up something in a living will so that the surviving spouse can harvest eggs/sperm from the comatose spouse in order to (potentially) produce a child later? Plus bonus living will questions inside.

(Anonymous due to the personal nature of the question.)

My husband and I are setting up wills and medical directives. If he dies or is injured to the point of being in a coma, etc., he would like me to be able to get sperm from him in order to try to artificially inseminate myself someday, and vice versa, if I am injured/killed, I would like him to have the option of getting eggs from me. Is that possible? If it is, is there a term for this or standard legal language? We don't know how to broach the subject with our attorney without sounding like weirdos or idiots (which I know is silly, but it's true).

In case it's relevant, we are both in our 30s and do not have any children yet. We are in the state of Mississippi, but we won't be here forever so are looking for universal (or at least all-USA) information. I'd appreciate answers relevant to the legal and medical aspects as opposed to opinions/judgments about whether it would be wise to produce a child with a dead person's DNA. We already know we would at least like to have that option available.

The bonus questions: first, about selecting a primary care physician to be named on the medical directive. We do not have a primary doctor, nor do we expect to have one any time soon (we have no health insurance). How big an issue is this in setting up medical directives? Is there a way around it?

Two: Without insurance, how totally screwed would we be if one of us ended up in a coma/vegetative state and wanted to be kept alive?

Thanks so much for your help, and please feel free to use [e-mail]. I hope I've included all the needed info, but if not, please email.

posted by anonymous to Law & Government (7 answers total)

Is there something preventing you from harvesting now? There are certainly banks that will store this material for you. This seems like the wisest and easiest option, rather than harvesting from a corpse and putting the surviving spouse subject to dealing with medical directives which, while admittedly are put in place for a reason, can be subject to legal challenges (even with attorney assistance.)

Also, I imagine the harvest would be hugely expensive to do without insurance, as would #2.
posted by Flamingo at 8:38 AM on January 7, 2011 [2 favorites]

I don't know how long sperm or eggs would remain viable in the event of a fatal injury, and depending on the level of trauma to the body it might be difficult or impossible to harvest them. Why not harvest the sperm/eggs now and just put them in storage? I understand that it is possible to keep them for years, and it may be that they are likely to be more productive if they are harvested when you are both younger. Do you really want to be trying to hash out the details of a last-minute sperm harvest if your husband is in a coma?
posted by Bebo at 8:39 AM on January 7, 2011 [1 favorite]

There's case law on this (harvesting sperm from a comatose male spouse, I believe) that they're teaching in all Wills and Trusts classes in law school these days, so trust me when I say that your attorney will not think you're weirdos or idiots. (Also trust me when I say he's seen a looooooooooot weirder and more idiotic - because, well, really, this is not very weird and certainly not idiotic.)
posted by wuzandfuzz at 8:41 AM on January 7, 2011

It certainly is! See the radiolab episode 'sperm.' That will refer you to a doctor and a couple who's done this in their wills.
posted by By The Grace of God at 9:07 AM on January 7, 2011

I can see why they might want to wait -- harvesting and storing eggs is, near as I can figure from previous reading, expensive and fairly painful. Harvesting sperm is neither expensive nor painful, but storing it is probably expensive, as well.

So it's entirely plausible that a couple, especially a couple who currently don't have health insurance, can't readily afford the expense of doing the harvesting and storing just in the unlikely event that one of them dies young. But should one of them die young and the option medically remains available, they'd like to set themselves up so the option also legally remains available. Whether it'll be financially available at some future time is something they don't necessarily know, but if they leave themselves out legally, then it won't matter.

By doing a little legwork now, they may be hoping to keep their options open at minimal cost.
posted by jacquilynne at 9:12 AM on January 7, 2011 [1 favorite]

It depends on your state and on the specific hospital you end up in after the traumatic event. It is better to harvest now and write a specific clause in your last will and testament giving your spouse the possession of the frozen sperm/eggs and right to use them for producing a child (should also write whether they can be donated to other couples, right to destroy, etc). Also, be sure to include a provision as the rights of children born as a result of harvested sperm/eggs (the standard rights as to after-born children only apply to ones that were in gestation at the time of death of the father, and courts have generally refused to extend these right to posthumous conception absent clear intent of the deceased).

For a living will - not all states recognize these, but it does help to have one. You can put the right to harvest sperm/eggs in the living will and/or your advance health directive/health care proxy. Even given this documentation, some doctors will still refuse to do the procedure, in which case, you'd have to probably get a court order to perform the procedure - for this reason, you should maintain a good relationship with the attorney who draws up these documents. Then, in the event you have a small window of a few hours in which to harvest the sperm, the court order can be obtain in a quick manner.

Side note - not sure if eggs can be harvested on the fly the same way sperm can - for egg donation you usually have to receive injections for several weeks before the procedure. That said, some places are now harvesting and freezing entire ovaries, though I'm not sure if any offspring have yet resulted from this procedure.
posted by melissasaurus at 6:31 AM on January 8, 2011

There is no way to harvest eggs upon the death of a female. The female must be stimulated with hormones prior to harvesting the eggs. The stimulation takes about a month. If you are concerned about this kind of situation, and had the money, go to a fertility doctor who specializes in oocyte freezing and get it done BEFORE the situation occurs. In the case of your death, your husband would need to under go in-vitro fertilization and find a surrogate to carry the embryo(s) (=$$$$$). He would also need CLEAR legal consent from both you and him to do so.

As far as harvesting ovarian tissue, I have only heard of this when the female patient has to undergo chemotherapy for cancer treatment. The harvested ovarian tissue can only be transplanted back into the female it was harvested from.

Sperm is a different story. I have heard of harvesting of sperm from males several hours post mortem and then freezing the resulting specimen in liquid nitrogen. This "harvesting", however, usually only produces sperm that can only be utilized for assisted reproductive technologies -- in-vitro fertilization. Sperm can also be collected voluntarily at a fertility lab, frozen in liquid nitrogen, and stored, before these sorts of situations arise. Frozen sperm can be stored as long as you wish in a reputable storage facility. Depending on the count and motility of the sperm, you can use the banked sperm as you wish without having to use advanced assisted reproductive technologies. Fees for storage vary, but I think typically they are $400-800 a year. I don't believe there are any laws against using the sperm of a deceased person as long as they give CLEAR consent to doing so. I am not a lawyer, just a fertility lab nerd.
posted by ohohcyte at 6:38 AM on January 8, 2011