The parents of a deceased cadet at the West Point Military Academy (“West Point”) who was scheduled to graduate last year was involved in a ski accident on the West Point ski slope which resulted in fractures to his spinal cord. As a result of the accident, the cadet was declared brain dead on February 27, 2019, but remained alive through life support, pending organ donation. The cadet had previously signed an organ donor card. He was scheduled for organ donation removal surgery and his parents brought a legal action seeking the following relief:
“a. Directing Westchester Medical Center to retrieve sperm from Petitioners’ son and to provide such sperm to a sperm bank or similar facility of their choosing;
- Allowing Petitioners to use their son’s sperm for third party reproduction; and
- Granting such other and further relief as to the court seems just and proper.”
The parents had been advised, and the court had no reason to doubt, that sperm retrieval would succeed but the procedure had to be effected prior to or contemporaneous with the removal of their son’s organs.
The cadet’s sperm was successfully retrieved and was being preserved in a local sperm bank when the case went to court with the issue being the ultimate disposition of his sperm.
In making its determination, the court examined the decedent’s intent. The few courts that had addressed this issue and the ethicists who have commented tended to agree that the intent of the decedent should govern and that intent can be determined pursuant to those written statements (if any) given during decedent’s lifetime. In several reported cases, it was a decedent’s intent rather than a widow’s claim to the sperm as “her property” under state law. In another case, the court held that the decedent’s estate representative did not have the right to destroy decedent’s frozen sperm in light of his expressed written intent that it be stored for possible future use by his longtime girlfriend.
Unfortunately, here this brave young man/cadet left no express direction with respect to the posthumous disposition or use of his genetic material, including how or whether it could or should be used for procreative purposes. Nonetheless, Petitioner’s presumed intent can be gleaned from certain of his prior actions and statements, in conjunction with statutes designed to serve as surrogates for a decedent’s intent.
First, as mentioned above, the young man did sign a donor card authorizing the donation of his “organs, eyes, and tissues.” When his parents were asked why they believed he had done so, they stated that their son had always been motivated by a desire to help others. As they advised the court, a 53 year old man now has a healthy kidney and pancreas, and a twelve year old girl a new heart. In addition, their son’s decision to embark upon a career in service to his fellow citizens and, as a military doctor, to his comrades in arms, is further indicia of his generosity of spirit. Thus, even though he did not expressly state that he wanted his sperm to be used for reproductive purposes, should his parents chose to do so in the future, it would not do violence to his memory. Indeed, as his parents confirmed in their Petition and testimony, such use would further their son’s moral or religious beliefs.
Second, the determination of which person or entity should be charged with the responsibility for making the decision regarding the disposition of their son’s genetic material was also informed by statements made by this young man to his parents and others. In seeking to determine their son’s intent from his past statements and actions, there was a consistent thread running through his short life: the primacy of family and family relationships. In what can be discerned from the Petition, testimony, and documents adduced, one thing is clear: considerations of family – – past, present and future — were vital to him.
As Petitioners confirmed, their son did not have a health care proxy or living will, never had children, and was neither married nor in a domestic partner relationship. His parents, next on the list, would therefore have been able to effect organ donation even if their son had not signed a donor card.
In this case, the court relied upon another state’s laws of intestacy to authorize the recovery and storage of decedent’s sperm by his parents, and to permit them to make an “anatomical gift” of it to decedent’s fiancé, presumably for possible future procreative use.
At this time, the court did not place any restrictions on the use to which the parents may ultimately put their son’s sperm, including its potential use for procreative purposes. As far as the court could discern, no such restrictions are mandated by either state or federal law. That is not to say, however, that Petitioners may not need to surmount certain obstacles, or confront important residual issues should they chose to seek to use their son’s sperm for reproductive purposes. A specific use, once chosen, may run afoul, or at least merit consideration of, certain legal, practical and ethical concerns, including the potential reluctance of medical professionals to assist in such a procedure.
In addition, the recognition of a posthumously conceived child as the son or daughter of the deceased may prove problematic; in some states, a child born after a certain period of time following the father’s death may not be deemed such father’s offspring for certain purposes. For example, children conceived by in vitro fertilization using late husband’s frozen sperm and born 18 months after husband’s death are not entitled to social security survivor benefits since such children were deemed not to be his offspring under the relevant state (here, Florida intestacy law). The aforementioned considerations may well weigh into any decision Petitioners may make regarding the ultimate disposition of their son’s sperm.
The court was constrained from addressing the range of other potential considerations at this juncture. Any evaluation must await the presentation of relevant evidence by medical professionals, medical ethicists and, perhaps ultimately, a court for a concrete plan for the young man’s pro-creation.
In any event, for the reasons set forth above, the court concluded that the parents are the proper parties to make decisions regarding the disposition of their son’s genetic material. Accordingly, Petitioners’ application was granted to the extent that they shall possess and control the disposition and potential use of their son’s genetic material.
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By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Estate Administration and Probate Attorney