The parents of a West Point cadet who died after a skiing accident earlier this year can take control of his sperm and, if they wish, use it to pursue a pregnancy using an egg donor and surrogate, a New York judge has ruled.
The judge, state Supreme Court Justice John Colangelo, in March ordered that a hospital retrieve the sperm from 21-year-old Peter Zhu before he was taken off life support, following a request from his parents. Colangelo said his decision then was based on recovering the sperm while it was still viable, but that he needed more time to address how it could ultimately be used.
The case revived discussion around postmortem sperm retrieval, also called posthumous sperm procurement, which is typically done when a young man dies unexpectedly. Some ethicists and urologists say it should only be carried out in cases in which there is prior written consent from the man or if the man’s partner or spouse appeals for the procedure. Some experts are reluctant to grant such requests from parents, in part because parents do not typically make decisions about their children’s reproductive plans.
In their petition to the court, Zhu’s parents, Yongmin and Monica Zhu of Concord, Calif., said Peter had made clear he wanted to have children and that they were trying to fulfill his wishes. They also said that because of China’s one-child policy, Peter was the only male in his generation, so it was up to him to “carry on our family’s lineage.”
Peter, a cadet at the U.S. Military Academy at West Point, severely injured his spinal cord while skiing on Feb. 23 and was declared brain dead on Feb. 27. Before the procedure to remove his organs for donation on March 1, his parents received an order from Colangelo for the medical center where he was being cared for to collect his sperm. Staff at Westchester Medical Center didn’t object to the procedure, and the sperm has been stored at a sperm bank since the retrieval.
In his decision, dated May 16, Colangelo wrote that he focused on “the decedent’s intent.” He found that Peter had repeatedly expressed a desire to have children to his parents, professors, and mentors.
“Devotion to family, revealed in various ways, direct and subtle, was evident throughout Peter’s young life,” Colangelo wrote.
Peter did not have a will or a partner, but Colangelo wrote that Peter’s statements and public health and estate laws “point to his parents as the persons Peter would have intended to make decisions with respect to the preservation and disposition of the procreative fluids at issue.”
Experts who have studied postmortem sperm retrieval said that many families who save sperm do not ultimately try to start a pregnancy. According to court records, the Zhus testified at a March hearing that they did not know if they would ever use Peter’s sperm and had not yet tried finding an egg donor, a surrogate, or a doctor who would perform the procedure.
In his decision, Colangelo pointed out that if the Zhus sought to start a pregnancy with Peter’s sperm, they would face such challenges as finding a doctor willing to perform IVF in this case. The judge also noted that some states won’t recognize a child’s parentage if he or she is born too long after a parent’s death.
“And,” Colangelo wrote, “this is not to mention the challenges and responsibilities necessarily entailed in caring for and raising a child. The aforementioned considerations may well weigh into any decision [the Zhus] may make regarding the ultimate disposition of Peter’s sperm.”