In the United States, posthumous reproduction is viable and it is a practice that is less and less surprising in assisted reproduction clinics. It is legal under certain requirements that depend on the regulation of each state, because in the North American country there is no legislation on assisted reproduction, only ethical guidelines that are in no case mandatory.
When it is the sentimental partners of the deceased who require the reproductive material, and that last will is left in writing, things are more flexible, it is even legal in Spain. But US court decisions in recent years have ruled that, in some cases, a deceased's parents may also dispose of the deceased's sperm, even if he had not given his formal consent before he died.
According to experts consulted by this medium who have studied legal cases of posthumous reproduction in American universities "it is legally possible that Ana Obregón is the biological grandmother of that girl and the mother for legal purposes. The legislation in the United States would allow it. And in Spain it is will produce the same legal situation, that is, Obregón would be his mother, once she completes the appropriate legal procedures".
Some courts have already had the opportunity to address the issue of posthumous reproduction, and these have established the necessary jurisprudence for this practice to be a reality in the United States. In 2007, an Iowa court authorized the recovery of a man's sperm by his parents to donate to his fiancée for her future reproductive use. And in 2009, a Texas woman got permission from a judge to extract sperm from her 21-year-old son after he died, with the intention of hiring a surrogate to give her a grandchild, so it's clear that the precedent exists in the North American country.
In 2018, the American Society for Reproductive Medicine issued ethical, not legal, guidelines for fertility centers on posthumous harvesting of reproductive tissue. The organization said it is justifiable if the deceased authorizes it in writing. Otherwise, it was advised that centers should only consider applications from the surviving spouse or partner, and not from the parents. In any case, according to these ethical guidelines, it is clear that clinics should not put biological grandparents in trouble if it is the last will of the deceased.
One famous case in which the applicants were the parents of the deceased was that of Peter Zhu, a 21-year-old cadet who was declared brain dead on February 27 after a skiing accident at the United States Military Academy in West Point. His parents managed to get the Westchester County Supreme Court to allow them to extract sperm from his body and use it to have a biological grandson, although it is unknown if they finally did so.
Because he was an organ donor, his body was kept alive until March 1, when his parents obtained a court order for the recovery of his sperm. And months later the judge recognized their free willingness to use it even without the express authorization of the deceased before he died.
Although the deceased had not authorized the recovery of his sperm or its use for reproduction, the judge said that there were several ways to determine his presumed intention. He had an organ donor card and his parents described his strong intention to one day have children and continue his legacy. Accordingly, the Westchester County Supreme Court granted the injunction for those parents to own and control the disposition and potential use of their son Peter's genetic material.
Lauren Sydney Flicker, a bioethicist and postmortem sperm recovery expert at the Albert Einstein College of Medicine in the Bronx, told The New York Times that requests to recover a dead person's sperm are not "surprisingly rare." Most major medical centers receive one of these requests each year, but they are usually made by the deceased's romantic partner.
“Here is the ethical debate, and it will be different in each case: Is it a greater ethical burden to prevent someone from having the opportunity to be a father by passing on their genetic material? Or is it a greater ethical burden for a man to father a child, without his consent, that he would not be around to raise? Most hospitals that agree to recover a deceased man's sperm limit how long they will store it because they are reluctant to "create a child out of pain," Sydney Flicker said. However, others are more flexible.
In Spain it is also possible to have a posthumous child, but the regulation is much more demanding and restrictive. It can be carried out only if the conscious and formal consent is given, before a notary or in the testament of the deceased. The reproduction material may only be used in the 12 months following the death of the man to fertilize his wife.
