The child would be born to a father who was dead before his sperm fused with an egg. That egg — and the womb in which the child was carried — would belong to women who might not be a part of the child’s life. And it would all happen because of the determination of the child’s grandparents, enabled by the fateful signature of a judge.
In the case in question, a New York judge earlier this month ordered a medical center to save the sperm of Peter Zhu, a 21-year-old cadet at West Point Military Academy who died after a ski accident. His parents sought an emergency court order on March 1, the day his organs were going to be removed for donation, and just a few days after the accident, when their “entire world collapsed,” as they wrote in a petition to the court.
“Peter told us he wanted to have five children, and that his dream was to live on a ranch with his family and raise horses,” Yongmin and Monica Zhu of Concord, Calif., wrote. They added: “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.”
The Zhus’ plight has reignited a debate around what is known as postmortem sperm retrieval, or posthumous sperm procurement, a procedure that was first attempted in 1980 and is typically considered when a young man dies unexpectedly. The Zhus’ case is particularly complicated because it involves a request from parents instead of a partner or spouse, whose directives hospitals are more inclined to follow.
Regardless of the circumstances, appeals to preserve the sperm of a young man who has died can expose a divide between families and the medical community, according to experts and parents who previously obtained court orders. While families are desperate to hold onto the hopes and even a part of a loved one who was abruptly lost, doctors and ethicists worry about the implications of starting a new life that otherwise would not exist.
Some of the family members said they understood why people were uneasy with their decisions, and some also said that keeping their loved one’s sperm made it harder in some respects to come to terms with the deaths. But they said such decisions should be left to families, not doctors or hospital boards.
“Do I believe it was the most healthy choice for me at the time? No,” said Missy Redding, who went to court to save the sperm of her son Nikolas Evans, who died in 2009 at age 21 after being punched outside a bar in Austin and hitting his head on the ground. “But would I do it again? 100 percent.”
Wendy Ward, whose brother Daniel Christy died in 2007 at age 23 after a motorcycle accident, said it’s impossible for most people to fathom what it’s like for families in these situations. Her parents fought to keep Daniel’s sperm at the request of his fiancee at the time.
“I get why people say, ‘No it’s wrong,’” said Ward. “But if you’ve never been there, that’s a long journey. That journey never ends. Me as a parent now, I just remember that look on my parents’ faces as they were burying their child. And it was just this blank stare.”
“I know they don’t want his story to end,” she said of the Zhus. “I get what they’re doing.”
By necessity, a decision about sperm retrieval has to be reached quickly, even as a family is grappling with the shock of a young man’s death. Clinicians and ethicists say they worry that the magnitude of the loss can distort a person’s decision-making process, so some hospitals that retrieve sperm will hold on to it for a period, sometimes a year, before releasing it. Such policies are designed to give families time to grieve without rushing into a decision with everlasting consequences.
“This is the process of making babies here, and it’s not something you can go back and ‘fix,’” said Dr. Ranjith Ramasamy, a reproductive urologist at the University of Miami. “People want to make sure that it’s happening for the right reasons.”
While Peter Zhu’s sperm was retrieved, what happens to it remains undecided. New York Supreme Court Justice John Colangelo, who ordered the medical center to collect the sperm while it was still viable, has scheduled a hearing next week to address whether and how it can be used.
Peter Zhu was skiing on Feb. 23 when he had what his parents called “a very bad accident” and stopped breathing. He was flown to Westchester Medical Center and declared brain dead on Feb. 27.
His parents got a court order not because the hospital objected on principle, but because it had never received such a request and wanted legal clearance, according to court records. Even large medical centers might receive only a request or two for posthumous retrievals each year. No laws or regulations govern the procedure in the United States, so it’s typically left up to hospitals — many of which have not set policies — to make a call on their own.
“Every time a request happens, the wheel almost gets reinvented,” said Lauren Flicker, the associate director of the Montefiore Einstein Center for Bioethics, who has provided ethics consults to clinicians about sperm retrieval.
In their petition, Peter’s parents argued they were trying to uphold their son’s wishes, “to help Peter realize this dream of bringing a child into the world.” More broadly, they wanted to keep a piece of Peter and extend his legacy. Because of China’s one-child policy, Peter was the only male in his generation (his father’s brothers had daughters), meaning only he could “carry on our family’s lineage.” They do not say if Peter had a partner.
Although postmortem sperm retrieval was first attempted nearly four decades ago, soon after the dawn of in vitro fertilization, it wasn’t until 1999 that it led to a birth. There are no national data on the number of retrievals carried out each year, but experts say that many people who take control of their loved one’s sperm never pursue a pregnancy.
The procedure itself, doctors said, is straightforward. In some cases, a needle is used to draw sperm from the epididymis (a tube attached to the testicle where sperm is stored). In others, clinicians cut through the scrotum and remove a piece of testicular tissue, from which sperm can be collected. Scientists will check that the sperm are viable before the specimen is frozen.
In some countries, including France, Canada, and Germany, postmortem sperm retrieval is illegal. In the United Kingdom, men need to provide written permission before their deaths.
Initially, U.S. hospitals tended to follow suit, only performing the procedure if there was prior written consent, Flicker said. But that approach was seen as limiting. These cases typically center on young men who suffer serious trauma and who, unlike those with terminal illnesses, did not have the chance to bank their sperm or consider what should happen to their sperm after they die.
Over time, Flicker said, hospitals have become more willing to retrieve sperm if the man’s loved ones said the deceased intended to have children.
That approach, though, comes with its own set of questions, said Bethany Spielman, a professor of medical humanities and law at Southern Illinois University School of Medicine. In Zhu’s case, for example, she said that the circumstances under which he might have children could have changed his calculations, though of course it’s impossible to know.
“He talked about wanting to be a father, but he didn’t say with whom he wanted to be a father,” she said. “He didn’t say he wanted to be a father if he was never going to see his children.”
After Nikolas Evans died in 2009, his mother wanted to realize her son’s dream of becoming a father. It was one of his many aspirations: go to film school, work in entertainment or media, get married, and have kids.
“I would do anything for that dude,” said Redding, who raised “Nik” and his brother as a single mom. “I couldn’t get him married. I couldn’t get his college diploma for him. I couldn’t get him out to California to live. But this was a thing I could do for him that I truly believe he would be OK with.”
She poured her grief — and thousands of dollars — into the quest. She scouted egg donors and potential surrogates, and at one point a few years or so after Nik’s death, she said, she tried having embryos made from Nik’s sperm and donor eggs.
None of them was viable.
“In the beginning, I was just fast and furious: ‘I am going to get this sperm implanted somewhere,’” said Redding, who has since married and runs a dog rescue in the Dallas area.
The setbacks gave her time for perspective, she said, and made her realize that she hadn’t fully grasped what it might be like — both for her and the child — for her to raise her son’s baby. How would she explain it all to him or her?
Her decision to seek a court order to preserve the sperm had attracted news coverage, and she said the resulting criticism made her feel guilty. Then the IVF failures brought a fresh round of guilt; she felt as though she had let Nik down. She never expected to get closure — an impossibility when your child dies, she said — but keeping her son’s sperm made it harder to move forward.
Redding said she fought to save Nik’s sperm because he wanted to be a father. But she admitted she had selfish reasons, too. Even now, she likes that she has his DNA.
“You never had to watch someone take your child off of life support — never,” she said. “You have no idea, the strength of the grief. He was such an intricate, huge part of my life — I talked with him three times a day — so I didn’t want to let that part go.”
Despite the expense and the distress of trying to help Nik have a baby, Redding, whose other son has a 6-year-old daughter, said she would do it again. And even though she no longer envisions raising Nik’s child, Redding hasn’t give up on the idea of donating it. She’s been talking to a lesbian couple about the possibility.
“I think it would be a more normal life for the kid, and I could still have my place in the kid’s life and heart,” she said. “I do think that as part of his legacy, it would be great if there was a kid out there that someone could be blessed to raise that was like him.”
For a 2017 study, Ramasamy, the University of Miami urologist, and colleagues asked the top 75 academic medical centers in the country for their policies on posthumous sperm retrieval. Of the 41 that replied, only 11 had policies. One banned it, four required prior written consent, and six allowed for a person’s partner to provide consent. Five of the centers had a built-in “bereavement period.”
“I was surprised by how few academic centers had any policies in place,” he said. “It’s imperative that institutions have them.” (At Miami, doctors will only perform a posthumous retrieval if a wife requests it, Ramasamy said: “If it’s a girlfriend or parents or even a fiancee, we won’t do it.”)
The American Society for Reproductive Medicine has also urged medical centers to establish policies so that clinicians and administrators are not making a call on the fly. In the latest version of its recommendations, published last year, the society’s ethics committee wrote that hospitals are not “ethically obligated” to fulfill requests for posthumous sperm retrieval. But if a hospital is willing, the committee wrote, it “should only do so when such requests are initiated by the surviving spouse or partner,” not the parents.
In other words, it’s not up to our parents to decide if and when we have children.
“In the case of a partner or spouse, they presumably have a shared reproductive plan with the decedent,” said Judith Daar, a visiting professor of law at University of California, Irvine, and the chair of the society’s ethics committee. “That’s just not the case with parents. Their own reproductive rights and aspirations are independent of their child’s.”
Now, the small group of ethicists and urologists who follow the issue are watching to see how the judge in the Zhu case weighs what should be done with Peter’s sperm. In a motion, the Zhus’ attorney cited Daniel Christy’s case in Iowa, in which a judge ruled that a law concerning organ donations and transplants extended to sperm.
Under the Uniform Anatomical Gift Act, Judge Marsha Beckelman wrote, “an anatomical gift, including a gift of semen, can be made by the donor, or, if the donor did not refuse to make the gift, by the donor’s parents following the donor’s death.”
Experts, however, disagree on whether that law should apply to sperm retrieval and the use of sperm to fertilize an egg. Starting a new life is very different than using an organ donation to prolong an existing life, some say.
If the judge rules that the Zhus can use the sperm, there will be more questions in need of answers, experts said. Paid surrogacy is illegal in New York, so will the parents try to start a pregnancy back in California? Will they find a fertility clinic willing to do IVF? Who will be the child’s legal guardian at birth?
In September 2007, Daniel Christy was on life support in Iowa after a motorcycle crash when his fiancee, Amy Kruse, wondered whether she could preserve his sperm. She didn’t know if it was possible, but she blurted it out to Daniel’s mother, Sherry.
At the time, Kruse had already picked out her dress for her wedding day.
“I was so in love with Daniel,” she said. “I loved the life we had together. I was ready to be his wife and have a life and have kids and build the home we had talked about building. That was our plan.”
Soon, the Christys were appealing to a judge, who ruled that Daniel’s parents could collect his sperm and provide it to his fiancee. In a way, it would allow Kruse and Daniel — who loved Harley-Davidsons, hunting, and fishing, and who, as his mother said, “had a love for people” — to start the family they had anticipated having.
“I had kind of mixed feelings, because I felt like if it was God’s will, they would have had children,” said Ward, Daniel’s sister. “But then I thought that if I were in her shoes, I wouldn’t have wanted to let go of that. It’s not fair is the thing. They’re just so young. You feel like you’ve been cheated and you want some way to rectify that.”
Over time, Kruse started dating someone else. She got pregnant and got married. Even when she was pregnant with her second child, she kept Daniel’s sperm in her mind. But she had difficult pregnancies and had two cesarean sections. Her husband was supportive of her, but they worried about what it would be like for her and Daniel’s biological child to grow up in that situation.
Eventually, the Christys got a call from the sperm bank, saying it was time to renew the contract. Kruse, now Amy Mullenix, told the Christys she didn’t know if she would ever use Daniel’s sperm, so the family stopped storing it.
“God had a different plan,” said Mullenix, 35, who lives in Texas with her family and remains close with the Christys.
Even though they never used Daniel’s sperm, the Christys said that the Zhus should be able to make their own choice about what to do with Peter’s sperm.
“I think it’s something wonderful,” said Tom Christy, Daniel’s father. “If they want that done, they should be able to have that done.”
Ward, 36, has a 4-year-old daughter and a 7-year-old son; his middle name is Daniel. Sometimes, Ward will catch a glimpse of her brother in her son: the way he walks, the way he can act ornery sometimes.
It provides a comfort.