Advertisement

SKIP ADVERTISEMENT

Parents of Dead West Point Cadet Can Use His Sperm, Judge Rules

A judge ruled that the parents of Peter Zhu would be able to use sperm that was retrieved after he was declared brain-dead.Credit...U.S. Military Academy at West Point, via Associated Press

A New York judge has ruled that the parents of a West Point cadet who died in March can use sperm harvested from his body with “no restriction,” giving them the chance to fulfill what they have described as their son’s lifelong desire to have children and continue the family name.

The cadet, Peter Zhu, 21, was declared brain-dead on Feb. 27 after a skiing accident at the United States Military Academy at West Point. Because he was an organ donor, his body was kept alive until March 1, when his parents obtained a court order for the retrieval of his sperm.

“Without obtaining sperm from Peter’s body, we will never be able to help Peter realize this dream of bringing a child into the world,” his parents, Yongmin and Monica Zhu, wrote in their March filing in State Supreme Court in Westchester County. “This is our one and only chance of fulfilling Peter’s wishes and preserving his incredible legacy.”

The judge, Justice John P. Colangelo, who also granted the parents’ request in March, said in his ruling on May 16 that the question before the court boiled down to this: “Who, if anyone, should be given the authority to determine the disposition of Peter’s genetic material, now preserved in the sperm bank?”

The answer, he said, was Mr. Zhu’s parents.

Although Mr. Zhu had not authorized the retrieval of his sperm, the judge said there were several ways to determine his presumed intent, including that he was an organ donor and what his parents described as his frequent discussion of someday wanting children.

Citing two state laws, the judge said Mr. Zhu’s parents were “the persons Peter would have intended to make decisions with respect to the preservation and disposition of the procreative fluids at issue.”

“Even though Peter did not expressly state that he wanted his sperm to be used for reproductive purposes,” the judge wrote, “should his parents choose to do so in the future, it would not do violence to his memory.”

What happens next is unclear. Mr. Zhu’s parents declined to comment through their lawyer, Kathleen Copps DiPaola. She said the legal team had not been authorized to comment on the family’s behalf.

But Mr. Zhu’s parents appear unlikely to use their son’s sperm any time soon.

In his ruling, the judge said they had testified that “they are not now prepared to definitively state that they will use the sperm for third-party reproductive purposes.”

Mr. Zhu’s parents also testified that they had taken no concrete steps to prepare for the use of the sperm, that they had not begun looking for a potential surrogate or potential eggs, and that they had not retained a physician to assist them with any of these matters, the judge wrote.

Justice Colangelo said the court would place no restrictions on the use of Mr. Zhu’s sperm by his parents because neither state nor federal law required them.

But whatever course of action they choose to pursue may need to be reviewed in light of “legal, practical and ethical concerns, including the potential reluctance of medical professionals to assist in such a procedure,” he wrote.

Lauren Sydney Flicker, a bioethicist and expert in post-mortem sperm retrieval at Albert Einstein College of Medicine in the Bronx, said requests to retrieve the sperm of a dead person are not “shockingly rare.”

Most major medical centers receive a few such requests each year, she said, usually from a romantic partner of the deceased. But many doctors do not know the procedure is possible and there are no databases that track it nationwide, she said.

“Here is the ethical debate, and it will be different for different people: Is it a greater ethical burden to prevent someone from having the opportunity to be a father by passing along their genetic material?” she said. “Or is it a greater ethical burden to have a man father a child, without his consent, that he wouldn’t be around to raise?”

The case of Mr. Zhu’s parents raises unique challenges, she said.

“They are going to have to find someone who is willing to be a surrogate and a fertility clinic that is willing to transfer their son’s gametes into a surrogate so that they can raise a child,” she said. They will also have to pay for in vitro fertilization, which is typically not covered by insurance.

Most hospitals that agree to retrieve a dead man’s sperm limit how long they will store it because they are averse to “creating a child out of grief,” she said.

That could make it harder for Mr. Zhu’s parents to find a clinic willing to perform the procedure so that they can have grandchildren.

“If a couple has lost a child, it is generally frowned upon by fertility clinics for them to go to the clinic to have a child that they see as a replacement,” she said. “You can always find someone who will say yes, but to find an ethically savvy fertility clinic, I think you would be challenged.”

A version of this article appears in print on  , Section A, Page 25 of the New York edition with the headline: Parents of Dead Cadet May Use Frozen Sperm. Order Reprints | Today’s Paper | Subscribe

Advertisement

SKIP ADVERTISEMENT