The Legal Status of Human Reproductive Matter After Death

Freezing ContainerBy Jenny Morber


The first live birth resulting from a post-mortem sperm extraction wasn’t until 1999. Gaby Vernoff gave birth to baby Brandalynn from sperm extracted by urologist Cappy Rothman 30 hours after her husband died. According to Gaby, the pregnancy took with the last vial of sperm. In the high-profile 2009 legal case Vernoff v. Astrue, Gaby went to court seeking social security benefits for her posthumously conceived child. The courts found that Brandalynn was not entitled to survivor’s benefits because she was not her father’s dependant at the time of his death, as required by California law.

In Arizona, though, courts had decided in 2004 that children conceived after their father’s death were entitled to benefits. There, unlike California, biological parenthood is sufficient for legal parenthood.

Today, Rothman is co-founder and medical director of California Cryobank, the largest sperm bank in the US. He estimates that the practice has performed close to 200 post-mortem sperm extractions. Most of these are recent, as the procedure has become more common. Their records show just three extractions in the 1980s and 15 in the 1990s. But from 2000 to 2014, they performed 130: an average of just under nine a year.

And Rothman’s is by no means the only clinic that offers this service. Recent statistics are scarce, but surveys of US fertility centres in 1997 and 2002 found increasing numbers of requests for post-mortem sperm retrieval, although from a very low base. According to Jason Hans, a professor in the Department of Family Sciences at the University of Kentucky, “the increasing prevalence of hospital and clinic protocols, legal cases, scientific and popular press articles also suggests an increase in requests for the procedure but, admittedly, may also represent increasing awareness rather than an increasing number of requests”.

Whatever the specifics, post-mortem sperm retrieval is very much a thing.

Continue to full article . . .

Picture: Nadina Wiórkiewicz Nadine90 commons: Nadine90 [CC BY-SA 3.0 (, via Wikimedia Commons

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