The Complex Ethics of Saving a Dead Person’s Sperm

Last fall, Peter Zhu, a 21-year-old cadet at West Point, made a list of life and career goals—an assignment all graduating seniors at West Point complete. As part of Peter’s list, he wrote that he hoped to “have three kids, get married before 30, become a career officer in the military.”

On February 23, 2019, just months after Peter wrote about his future, he fractured his spinal cord in a skiing accident and was transported to Westchester Medical Center in New York. Four days later, his physicians had to tell his parents the news all parents fear—Peter would not recover. On February 27, 2019, he was declared brain dead.

Peter, who was single at the time, was an organ donor. According to court documents, his parents, Monica and Yongmin Zhu, believe that he registered as an organ donor because he “had always been motivated by a desire to help others.” Even in death, he did: His kidney and pancreas were donated to a 53-year-old man, and his heart to a 12-year-old girl.

The organ donation removal surgery was scheduled for March 1, at 3 p.m. But there was one more pending item. On the morning of the surgery, Monica and Yongmin filed a petition to the Supreme Court of the State of New York. They wanted an additional removal surgery to be performed. They wanted their son’s sperm.

Postmortem sperm retrieval, or PMSR, was first successfully completed in 1980 by Cappy Rothman, a Los Angeles urologist. The procedure is relatively straightforward: For up to 36 hours after a person dies, a urologist can harvest their sperm and send it to a sperm bank, where it will be stored and later used at the family’s discretion. Although there were reports of PMSR being done in the 80s and 90s, it wasn’t until 1999 that a Los Angeles woman gave birth to the first baby conceived as a result of PMSR. (The corresponding procedure for retrieving eggs—postmortem oocyte retrieval—is another option for families seeking posthumous reproduction.)

The PMSR procedure is controversial, with France, Canada, and Germany banning it outright, while in the UK men need to have provided written consent before their death for PMSR to be considered. In the US however, there are no national regulations.

The lack of consistent guidelines and relative rarity of the procedure means that doctors and families are often asked to make an ethically fraught decision in a short amount of time. Some hospitals have guidelines in place, while others decide on a case-by-case basis.

Larry Lipshultz, a professor of urology at Baylor College of Medicine, dislikes the inconsistency in how cases are decided at different hospitals. “I think there should be policies in place at any given facility who thinks they may be called upon to do this,” Lipshultz told VICE. This includes hospitals, academic institutions, and ERs—especially those that regularly see patients with life-threatening conditions.

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In a statement to the court through its attorney, Westchester Medical Center said it neither consented nor objected to the procedure in Peter Zhu's case. The hospital said it would comply with whatever decision the court made, leaving the question of whether or not Peter’s parents could have access to his sperm after his death up to Justice John P. Colangelo.

With the 36-hour PMSR window closing, Justice Colangelo issued an interim relief the same day—Westchester Medical Center was ordered to retrieve Peter’s sperm and bring it to a sperm bank, until a further decision could be reached. A hearing was set for March 21.

Over the next three weeks, the Zhus would be tasked with proving not only that their son wanted to have children, but that he would have wanted children after his death. While PMSR is rare, it’s even rarer to be performed on a deceased person who has no known partner, and who was not actively trying to have children, as was the case with Peter.

In fact, the American Society for Reproductive Medicine, the professional group for physicians in the field, advises against allowing anyone other than spouses to request PMSR. In a set of ethical guidelines released in 2018, the organization wrote that “In the absence of written instructions from the decedent, programs that are open to considering requests for posthumous gamete procurement or reproduction from surviving spouses or life partners should decline requests for such services from other individuals."

Lipshultz agrees with the group. “Parents are not involved in the reproductive process of their children,” he said. He thinks that unless a child explicitly tells their parents they want to posthumously reproduce if the time ever came, it’s presumptuous to assume a child would be comfortable with their parents making the decision for them.

“Ethically, this [case] is controversial,” said David Magnus, director of the Stanford Center for Biomedical Ethics. “Most hospital policies will only let this go forward if there is an identified partner who [the deceased person] had a relationship with and they wanted to do this. It’s actually pretty unusual to have a situation where the parents wanted to do this.”

Monica and Yongmin declined through their attorney to be interviewed for this story and have not spoken to any press about the case, so it’s hard to know how they felt while pleading their case in court. But they aren't the first parents to have gone through the process.

Missy Redding from Dallas, Texas, knows first-hand the barriers facing parents who want PMSR performed on their children. In 2009, her son Nikolas Evans was punched outside a bar in Austin, and fell to the ground, hitting his head. He was rushed to a nearby hospital, and five days later was pronounced dead.

Missy had never heard of PMSR before, but when she got to the hospital where Nikolas was on life support, she thought of his hopes to one day have children. She asked the hospital if there was a way they could save her son’s sperm. When they refused to perform PMSR, Missy filed a petition in court.

“That was the only thing I thought about that could actually help him with his dreams,” she said. “An administrative person at a hospital has no idea what a mom goes through when she loses her son. If people are pulled to do [PMSR], they should.” The judge issued a court order, and the hospital went on to retrieve viable sperm from Nikolas.

Missy remembers what it was like to grieve her son, while fighting for PMSR both in the hospital and in the court system. “It’s a very emotional journey, especially if things don’t work out,” Missy said. “That experience was not a great one for me. I kind of felt ostracized by the hospital.”

She and her husband tried to get a viable embryo from five samples of Nikolas’s sperm and a donor egg. She had narrowed down three possible surrogates to carry her grandchild, but the fertilization procedure wasn’t successful. Nikolas’ sperm is still being stored in a sperm bank, but Missy is starting to look for other ways to help him fulfill what she believes were his wishes.

“The cost was exorbitant. The [strain] on my mental and emotional health was even more taxing. So we haven’t tried to do anything in several years,” she said. “We may end up donating [Nikolas’ sperm] to a couple…That’s probably our next thing, finding a couple to donate the sample to and then possibly having a relationship with the child.”

In the Zhu's case, Monica and Yongmin mostly relied on anecdotal evidence that Peter wanted to have children before his life was cut short. According to court documents reviewed by VICE, they presented a postcard Peter had sent to one of his professors, where he mentioned his plans to have kids. They read aloud his list of life goals from West Point which included multiple children. They told the court about conversations they had had with Peter, where he spoke about his dream to raise his family on a horse ranch. Captain Marc Passmore, the Tactical Officer for Peter’s Company at West Point, testified to the court via phone that, during his time mentoring the young cadet, Peter mentioned his plans to have several children.

Monica and Yongmin also talked about what it meant for their family now that their only son was gone. The Zhus are Chinese, and in large part due to China’s “one-child” policy, Yongmin’s two brothers only have a single child each, both daughters. “In Chinese culture, only a son can carry on his family’s name,” the Zhus wrote in their court petition. “Peter is the only male child in the Zhu family…Without obtaining genetic material from Peter’s body, it will be impossible to carry on our family’s lineage, and our family name will die.”

Magnus said he's faced situations similar to this with Chinese parents. “Their lineage is, in their way of thinking, being lost, and they’re completely and totally devastated.” While he acknowledged that the Zhus are not just facing the loss of their son but also the loss of lineage, he cautions families like them about making life-altering decisions so soon after their son’s death. “At least in some of those cases it's been pretty clear that what’s being expressed was not something that was really a substantive judgement about what the patient would want,” he said. “They were really just dealing with their grief.”

On May 17, 2019, Justice Colangelo released his decision. Monica and Yongmin Zhu were granted the control and potential use of Peter Zhu’s sperm. The Zhus testified that they are not yet prepared to definitively say whether they will use Peter’s sperm for reproductive purposes, nor have they begun the process of finding a surrogate or eggs or a physician to help them conceive Peter’s children.

Although the Zhus will have immediate access to their son’s sperm, Magnus thinks families in their situation should take time to decide whether pursuing reproduction is the right step for them.

“[The Zhus] are going to have to raise a grandchild. And a decision made out of grief may wind up not being in the best interest of the child,” he said. “I think the interest of the child being produced has to be taken into account when thinking about the ethics of this.”

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