From Frozen Embryos to Frozen Sperm

There really is sort of a thread here.  Yesterday I discussed the adoption of frozen embryos.  Today a recent case on the disposition of frozen sperm.

In general, this falls in the category of cases where a man donates sperm which is then frozen and, at some point, the man dies.   The question is how you decide what to do with the frozen sperm.  (This is a more frequent problem with men and sperm than with eggs, in large part because it has only recently become possible to freeze eggs and even now it’s not such a widespread practice.)

The legal questions arise in a variety of contexts.  Sometimes there’s a question of posthumous paternity–is a child produced using the sperm the child of the deceased man for purposes of inheritance or social security, say?  I’ve also touched on another variation of this problem, though that link is to a recent story that has a novel twist.  It’s a case where at the time the man died, he had not donated sperm.   It turns out it is possible to retrieve sperm from a man if you act very shortly after his death.  

Here’s what the more recent case–the one I want to talk about here is about.    A man donates sperm and then dies.   Years later his parents want to use the sperm and impregnate a surrogate so that they’ll have a grandchild.   At least part of the problem is that the man left specific instructions (I do wonder if these were contained in a form contract) to destroy the sperm in the event of his death.

The actual court opinion here is not that interesting to me.   In holding that the parents cannot have access to the sperm, the court relies on the inability to fufil health and safety testing requirements.  While the health/safety angle is obviously important, it skirts what I think are the more interesting questions.

There’s a couple of different questions raised in these cases and it’s probably best to distinguish between them.   One question (not raised in this case) is if you use sperm, then what is the relationship between the resulting child and the deceased donor.   Obviously there is a genetic connection.   What legal meaning should we give it?    That’s really the issue of posthumous parenthood.   If you think the genetic link is generally insufficient to establish parenthood (as I do) then this may not be such a difficult question.   But if you think the genetic link is a critical (or the critical) component of parenthood, then this is a harder question.

A second question (and one that precedes the posthumous parenthood question) is how you decide on the disposition of the frozen sperm.   That’s the issue in this new NY case, and in the earlier one I’ve linked to as well.  But this isn’t an entirely independent question.   The question as to disposition turns in part on how you categorize the frozen sperm.  Is it simply property?  If you think that any child resulting from the use of the sperm will be the child of the deceased man, then it’s pretty hard to say it is simply property, like a favorite sweater or a collection of books.

What if it were just property?   Then I suppose the deceased could control disposition as he could all other property via a will.  And I would think that a specific request that it be destroyed might well be honored.   In the absence of a request, it would belong to his heirs.

That may not seem entirely satisfactory, and could lead us to go back and say that it is something other than (more than) property.   And this is hard.  Sometimes it seems to me that there are but two  categories in our legal world:  people and property.  This is the difficulty in the frozen embryo cases.   If they are neither people nor property, then what exactly are they?

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