Last week, the first baby was born who had been conceived with sperm from a dead man. Not from a man who died after he had conceived a child, but conceived with sperm collected from him after he’d died. This successful new way to reproduce means that we now must confront the ethics of collecting sperm from men after they die: should it be allowed, who can decide to collect it, and when should it be used to conceive children?

What's your opinion?

Banking sperm isn’t new, or particularly high-tech. Many men store sperm and for different reasons: when they can’t be sure of their reproductive futures; when they're facing a disease that may be fatal or for which successful treatment may leave them sterile; and even soldiers, in advance of reporting for combat duty. But these men make conscious decisions to freeze sperm so that they can father genetically related children sometime in the future, and when they decide it is appropriate.

What happens to banked sperm after its donor dies depends on the wishes of the man, and if it is unclear what he would have wanted, on the wishes of his heirs. So a sperm donor might direct in his will what should happen to banked sperm. Even if a donor’s will is silent on the issue, the fact that he banked sperm is some indication that he was willing to father a child, presumably with his wife or significant other.

We take organs from people’s bodies after they die, so why not their sperm? People are encouraged to decide whether they want to donate their organs for transplant when they die, and if a dying patient’s wishes aren’t known, their loved ones are asked to decide on the patient’s behalf.

The ground rule for third parties donating their loved ones’ organs is that there can be no benefit to them from the donation. So a wife couldn’t decide to donate her dead husband’s kidney (heart, liver, pancreas) to herself. But isn’t this very close to what a wife is doing by deciding to extract sperm from her dead husband so that she can later bear his child?

There are important differences, of course. Sperm is hardly the scarce resource that solid organs are, so there is little concern that a decision to extract and use sperm from a dead man will result in someone else being denied access to it. And the range of people interested in its use is (hopefully) small, so that absent legal wrangling over who has rights to it, there should be plenty to go around.

But if we think about who might have interests in extracting sperm, a list might include everyone from wives (present and former), companions (of either or both sex), children, siblings, and parents, to agents, business partners, colleagues or attorneys representing the estate of the deceased. Does motivation or intended use for the sperm matter? What if the intention is to sell it off in lots, as is done with racehorses?

Forcing parenthood

Should a man be forced to become a parent without his consent, and does the fact that he’s dead influence the answer? Extracting sperm from dead men on the basis of their loved one’s desires is hard to distinguish from extracting eggs from dead women, now that surrogate mothers are a nearly mundane part of assisted reproduction.

We certainly don’t force men to father children or women to bear them when they are able to decide for themselves, and the fundamental nature of parenthood argues that it shouldn’t be forced on those who aren’t able to decide and whose wishes aren’t known.

Now that we can and should make clear our wishes about end of life care and donating our organs, we need to add whether our gametes should go to the grave with us. When I die, there are a number of things I hope to leave behind, including my organs for transplant. But children I’ll never know is not a legacy that I choose, nor is it one that anyone else should be able to choose for me. Because, to refute the old adage, you can take it with you.