Pushing the Dead into the Next Reproductive Frontier: Post Mortem Gamete Retrieval under the Uniform Anatomical Gift Act

See <http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=0&tabid=11> (last visited March 31, 2009). As this article went to press, Missy Evans of Austin, Texas had recently had her dead son Nikolas' sperm harvested following approval by a probate judge. She hoped eventually to find a surrogate and raise her grandchild herself. See Stengle J. , “Texas Woman Undaunted by Ethical Questions Over Her Decision to Harvest Dead Son's Sperm,” available at <http://newser.com/article/d97g9qvg1/texas-woman-undaunted-by-ethica-questions-over-her-decision-to-harvest-dead-sons-sperm.html> (last visited April 13, 2009). The 2006 UAGA had been introduced in the Texas legislature in 2009, but had not become law when Nikolas Evans died on April 5, 2009. The National Conference of Commissioners on Uniform State Laws, Uniform Anatomical Gift Act, available at <http://www.anatomicalgiftact.org/DesktopDefault.aspx?tabindex=2&tabid=72> (last visited April 13, 2009).

See <http://www.anatomicalgiftact.org/DesktopDefault.aspx?tabindex=2&tabid=72> (last visited March 31, 2009).

Kurtz S. F. , “The 2006 Revised Uniform Anatomical Gift Act—A Law to Save Lives,” Health Lawyers News 11, no. 2 (2007): 44–49 at 44.

In re Daniel Thomas Christy , Johnson County Case No. EQVO68545 (September 14, 2007).

Fiegen K. , “Judge: Family Can Give Son's Semen to Fiancée,” Iowa City Press-Citizen, September 14, 2007, at 1A.

Daar J. , Reproductive Technologies and the Law (Newark, N.J.: LexisNexis, 2006): at 550.

Neil M. , “Iowa Judge OKs Sperm Donation By Dying Man,” ABAJ , Sept. 14, 2007) available at <http://www.abajournal.com/news/iowa_judge_oks_sperm_donation_by_dying_man/> (last visited April 7, 2009); Miller S. , “Judge: Family May Take Dying Son's Sperm,” Daily Iowan , Sept. 14, 2007, available at <http://media.www.dailyiowan.com/media/storage/paper599/news/2007/09/14/Metro/Judge.Family.May.Take.Dying.Sons.Sperm-2969511.shtml>; Fiegen , supra note 7; Hermiston L. , “Editorial, Our View – Judge's Decision Helped Avert a Potential Tragedy,” Iowa City Press-Citizen , Sept. 22, 2007 at 16A; Hemmingsen J. , “Racing Against Time, Man's Sperm Harvested Before he Dies,” available at <http://www.gazetteonline.com/apps/pbcs.dll/article?AID=/20070915/NEWS/>; Kurtz S. , “Judge Beckelman Made the Right Call in the Unusual Daniel Christy Sperm Case,” Iowa City Press-Citizen , Sept. 22, 2007, at 17A; Christy T. , “Thomas Christy: A Father's Perspective,” Iowa City Press-Citizen , Sept. 22, 2007 at 17A; Kruse A. , “A Fiancee's Perspective,” Iowa City Press-Citizen , Sept. 22, 2007 at 17A; Klockau L. , “Christy Shows Legal, Medical Communities Should Work together to Draft Sound Policy,” Iowa City Press-Citizen , Sept. 22, 2007 at 17A; Charis-Carlson J. , “Situation Presents the Best-Case Scenario for When Such Requests Should be Granted,” Iowa City Press-Citizen, Sept. 22, 2007 at 17A.

See Fiegen , supra note 7.

See Hermiston , supra note 9.

See Fiegen , supra note 7.

See Hemmingsen , supra note 9.

See Hemmingsen , supra note 9

See Christy , supra note 9.

Kolata G. , “Uncertain Areas for Doctors: Saving Sperm of Dead Men,” New York Times, May 30, 1997 at A1.

Reichman Schiff A. , “Arising from the Dead: Challenges of Posthumous Procreation,” North Carolina Law Review 75, no. 3 (1997): 901–965

Id., at 928.

New York State Task Force on Life and the Law, Assisted Reproductive Technologies: Analysis and Recommendations for Public Policy 266 (New York: New York State Task Force on Life and the Law 1998).

Kerr S. , “Post-Mortem Sperm Procurement: Is It Legal?” De-Paul Journal of Health Care Law 3, no. 1 (1999): 39–77.

Id. at 45.

Brock L. V. Mastroianni A. , “Sperm and Egg Retrieval for Posthumous Reproduction” in Patton P. E. Battaglia D. E. , eds., Contemporary Endocrinology: Office Andrology (Totowa, NJ: Humana Press Inc., 2005): 267–283 at 274.

Revised U.A.G.A. § 2(30) (2006). “Tissue” means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education. See also Iowa Code § 142C.2.35. Definitions. Tissue.

Revised U.A.G.A. § 4 (2006). Who may make anatomical gift before donor's death. Subject to Section 8, an anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in Section 5 by: (1) the donor, if the donor is an adult or if the donor is a minor and is: (A) emancipated; or (B) authorized under state law to apply for a driver's license because the donor is at least [insert the youngest age at which an individual may apply for any type of driver's license] years of age; (2) an agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift; (3) a parent of the donor, if the donor is an unemancipated minor; or (4) the donor's guardian. See also Iowa Code § 142.C.3.1. Who May Make.

Revised U.A.G.A. § 7 (2006). Refusal to make anatomical gift; effect or refusal. (a) An individual may refuse to make an anatomical gift of the individual's body or part by: (1) a record signed by: (A) the individual; or (B) subject to subsection (b), another individual acting at the direction of the individual if the individual is physically unable to sign; (2) the individual's will, whether or not the will is admitted to probate or invalidated after the individual's death; or (3) any form of communication made by the individual during the individual's terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness. (b) A record signed pursuant to subsection (a)(1)(B) must: (1) be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and (2) state that it has been signed and witnessed as provided in paragraph (1). (c) An individual who has made a refusal may amend or revoke the refusal: (1) in the manner provided in subsection (a) for making a refusal; (2) by subsequently making an anatomical gift pursuant to Section 5 that is inconsistent with the refusal; or (3) by destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal. (d) Except as otherwise provided in Section 8(h), in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part. See also Iowa Code § 142.C.3.4. Refusal to Make.

Revised U.A.G.A. § 9 (2006). Who may make anatomical gift of decedent's body or part. (a) Subject to subsections (b) and (c) and unless barred by Section 7 or 8, an anatomical gift of a decedent's body or part for purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed (1) an agent of the decedent at the time of death who could have made an anatomical gift under Section 4(2) immediately before the decedent's death; (2) the spouse of the decedent; (3) adult children of the decedent; (4) parents of the decedent; (5) adult siblings of the decedent; (6) adult grandchildren of the decedent; (7) grandparents of the decedent; (8) an adult who exhibited special care and concern for the decedent; (9) the persons who were acting as the [guardians] of the person of the decedent at the time of death; and (10) any other person having the authority to dispose of the decedent's body. (b) If there is more than one member of a class listed in subsection (a)(1), (3), (4), (5), (6), (7), or (9) entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under Section 11 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available. (c) A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subsection (a) is reasonably available to make or to object to the making of an anatomical gift. See also Iowa Code § 142.C.4. Who May Make Anatomical Gift of Decedent's Body or Part.

Purposes of the act are restated in Revised U.A.G.A. §§ 2, 4, 8, 9, 11, and 14 (2006).

Revised U.A.G.A. § 2(3) (2006).

See supra note 30.

Commentary, Revised U.A.G.A. § 4 (2006).

Armstrong W. P. , A Century of Service: A Centennial History of the National Conference of Commissioners on Uniform State Laws (St. Paul, MN: West, 1991); White J. J. , “One Hundred Years of Uniform State Laws: Ex Proprio Vigore,” Michigan Law Review 89, no. 8 (1991): 2096–2133.

Shockley P. , “The Availability of ‘Trade Secret’ Protection for University Research,” Journal of College and University Law 20, no. 3 (1994): 309–332, at 309–310 n.190, at 317 discussing 765 Ill. Comp. Stat. 1065/1 (1993), which varied substantially from the Uniform Trade Secrets Act because of perceived problems created by unusual interpretations of the uniform act in Electro-Cart Corp v. Controlled Motion, Inc., 332 N.W.2d 890 (Minn. 1983); Religious Technology Ct. v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986), cert. denied, 479 U.S. 1103, 107 S. Ct. 1336 (1987).

Revised U.A.G.A. § 24 (2006) of this act, like its predecessors, states “that in applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Todd M. B. , “Avoiding Judicial In-Activism: The Use of Legislative History to Determine Legislative Intent in Statutory Interpretation,” Washburn Law Journal 46, no. 1 (2006): 189–222, at 215.

“Unreported Cases: General Electric Co. v. Star Technologies, Inc. No. 14,923 Court of Chancery of the State of Delaware, New Castle, July 1996,” Delaware Journal of Corporate Law 22 (1997): 350; Peterson P. M. , “The Uniform Transfers to Minors Act: A Practitioner's Guide,” Army Lawyer (Department of the Armey Pamphlet) 27-50-270 (May 1995): 3–20 at 18; Hicks v. Meyers, 2 Va. Cir. 122 at 122; Bohna v. Hughes, 828 P.2d 745 at 759 (Alaska 1992).

See Todd , supra note 40, at 215.

Charis-Carlson J. , “Situation Presents the Best-Case Scenario for When Such Requests Should be Granted,” Iowa City Press-Citizen, September 22, 2007, at 17A.

Hemmingsen , supra note 9.

Revised U.A.G.A. § 2(30) (2006).

“First Baby Delivered from Commercial Frozen Donor Egg Bank,” OBGYN & Reproduction Week (January 23, 2006): At 2. (please provide author and issue information.)

Finnerty J. J. , “Gamete Retrieval in Terminal Conditions: Is it Practical? What are the Consequences?” Current Women's Health Reports 2, no. 3 (2002): 175–178, at 177.

See supra note 31. See also Iowa Code § 142.C.3.4. Refusal to Make.

See Kurtz , supra note 9.

See supra note 31. See also Iowa Code § 142.C.3.4. Refusal to Make.

See Christy , supra note 9.

See supra note 32. See also Iowa Code § 142.C.4, Who May Make Anatomical Gift of Decedent's Body or Part.

See Hemmingsen , supra note 9.

Revised U.A.G.A. § 11 (2006). Persons that may receive anatomical gift; purpose of anatomical gift. (a) An anatomical gift may be made to the following persons named in the document of gift: (1) a hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education; (2) subject to subsection (b), an individual designated by the person making the anatomical gift if the individual is the recipient of the part; (3) an eye bank or tissue bank. (b) If an anatomical gift to an individual under subsection (a)(2) cannot be transplanted into the individual, the part passes in accordance with subsection (g) in the absence of an express, contrary indication by the person making the anatomical gift. (c) If an anatomical gift of one of more specific parts or of all parts is made in a document of gift that does not name a person described in subsection (a) but identifies the purpose for which an anatomical gift may be used, the following rules apply: (1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank. (2) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank. (3) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ. (4) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization. (d) For the purpose of subsection (c), if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education. (e) If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in subsection (a) and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g). (f) If a document of gift specifies only a general intent to make an anatomical gift by words such as “donor”, “organ donor”, or “body donor”, or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g). (g) For purposes of subsections (b), (e), and (f) the following rules apply: (1) If the part is an eye, the gift passes to the appropriate eye bank. (2) If the part is tissue, the gift passes to the appropriate tissue bank. (3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ. (h) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subsection (a)(2), passes to the organ procurement organization as custodian of the organ. (i) If an anatomical gift does not pass pursuant to subsections (a) through (h) or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part. (j) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under Section 5 or 10 or if the person knows that the decedent made a refusal under Section 7 that was not revoked. For purposes of the subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift. (k) Except as otherwise provided in subsection (a)(2), nothing in this [act] affects the allocation of organs for transplantation or therapy.

Katz K. D. , “Parenthood from the Grave: Protocols for Retrieving and Utilizing Gametes from the Dead or Dying,” University of Chicago Legal Foundation (2006): 289–316, at 299.

See supra note 32. See also Iowa Code § 142.C.4, Who May Make Anatomical Gift of Decedent's Body or Part.

See Finnerty , supra note 48.

Soules M. R. , “Posthumous Harvesting of Gametes – A Physicians' Perspective,” Journal of Law, Medicine & Ethics 27, no. 4 (1999): 362–364, at 364.

New York Hospital Guidelines for Consideration of Requests for Postmortem Sperm Retrieval, available at <http://www.cornellurology.com/guidelines.shtml> (last visited April 1, 2009).

The Ethics Committee of the American Society for Reproductive Medicine, “Posthumous Reproduction,” Fertility and Sterility 82, Supp. 1 (2004) S260–S262, at S262. See supra note 30.

Revised U.A.G.A. § 8(g) & (h) (2006): If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part. If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal.

See Finnerty , supra note 48.

New York Hospital Guidelines for Consideration of Requests for Postmortem Sperm Retrieval, supra note 59.

See supra note 61.

See supra note 55.

See Finnerty , supra note 48.

New York Hospital Guidelines for Consideration of Requests for Postmortem Sperm Retrieval, supra note 59.

The Ethics Committee of the American Society for Reproductive Medicine, “Family Members as Gamete Donors and Surrogates,” Fertility and Sterility 80, no. 5 (2003):1124–30, at 1129.

Id., at 1127–1128.

Revised U.A.G.A. § 5a3 (2006) is intended to prevent coercion of dying donors: A donor may make an anatomical gift: During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness.

The Gallup Organization for Division of Transplantation Health Resources and Services Administration, 2005 National Survey of Organ and Tissue Donation Attitudes and Behaviors, available at <http://www.organdonor.gov/survey2005> (last visited April 1, 2009).

The Ethics Committee of the American Society for Reproductive Medicine, “Financial Compensation of Oocyte Donors,” Fertility and Sterility 88, no. 2 (2007): 305–309.

See Finnerty , supra note 48.

Section 11 gives priority to some recipients over others, depending on the purpose of the gift. Supra Note 55.

Revised U.A.G.A. § 15 (2006). Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.

Stein R. , “States Revising Organ-Donation Law; Critics Fear Measure May Not Go Far Enough to Protect Donors,” The Washington Post, April 4, 2007 at A-01. The controversy that §14 caused subsided when the commissioners added § 21.

Revised U.A.G.A. § 2(30) (2006). “Tissue” means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education. See also Iowa Code § 142C.2.35. Definitions. Tissue.

Prefatory Note, Revised U.A.G.A. (2006), note 2.

Commentary, Revised U.A.G.A. § 7 (2006): “A simple form of refusal under this [act] could provide: I,_______, refuse to make any anatomical gift of my body or any part_______. Date Signed and Signature of Declarant.”83. Md. Code Ann., [Health-Gen.] § 5–603.

Minn. Stat. § 145B.04. See also Bonasera M. , “Harvesting a Dying Man's Sperm Raises Multiple Ethical and Legal Issues,” The Ohio Trust & Estate Blog (2007), available at <http://www.bonasera.org/?paged=15> (last visited April 1, 2009). Several media reports, including this blog entry title, suggest that Christy was not dead when his sperm was retrieved. If he was not dead, then his parents lacked legal authority to donate under Revised U.A.G.A. (2006) Section 9.

Revised U.A.G.A. § 26 (2006). The following acts and parts of acts are repealed: (1) [Uniform Anatomical Gift Act]; ___________.

Cal. [Bus. & Prof.] Code § 2260.b. La. Rev. Stat. § 14:101.2 (2008). Unauthorized use of sperm, ovum or embryo.

Unruh v. Regents of the University of California , 2007 Ca. App. Ct. Briefs 37749; 2007 Ca. App. Ct. Briefs (LEXIS) 3078, April 24, 2007.

Kleindienst L. , “Lawmakers Try to End Bias by Organ Donors: A Stipulation by Parents that their Son's Organs Could Only be Donated to Whites Brought on Demands for the Anti-Bias Bill,” Orlando Sentinel, Mar. 31, 1994, at A1.

Fla. Stat. § 765.514 (2007). Manner of executing anatomical gifts.(3) The gift may be made to a donee specified by name. If the donee is not specified by name, the gift may be accepted by the attending physician as donee upon or following the donor's death. If the gift is made to a specified donee who is not available at the time and place of death, the attending physician may accept the gift as donee upon or following death in the absence of any expressed indication that the donor desired otherwise. However, the Legislature declares that the public policy of this state prohibits restrictions on the possible recipients of an anatomical gift on the basis of, color, religion, sex, national origin, age, physical handicap, health status, marital status, or economic status, and such restrictions are hereby declared void and unenforceable. The physician who becomes a donee under this subsection shall not participate in the procedures for removing or transplanting a part.

Chester R. , “Freezing the Heir Apparent: A Dialogue on Postmortem Conception, Parental Responsibility, and Inheritance,” Houston Law Review 33 (1996): 967–1025; Knaplund K. S. , “Postmortem Conception and a Father's Last Will,” Arizona Law Review 46 (2004): 91–115; Hoffman S. Morriss A. , “Birth After Death: Perpetuities and the New Reproductive Technologies,” Georgia Law Review 38, no. 2 (2004): 575–631.

See Hemmingsen , supra note 9.

Murphy T. F. , “Dead Sperm Donors or World Hunger? Are Bioethicists Studying the Right Stuff?” Hastings Center Report 35, no. 2 (2005): 49.

Recent literature with an ethical emphasis includes Collins R. , “Posthumous Reproduction and the Presumption Against Consent in Cases of Death Caused by Sudden Trauma,” Journal of Medicine & Philosophy 30, no. 4 (2005): 421–442; Strong C. , “Gamete Retrieval After Death or Irreversible Unconsciousness: What Counts as Consent?” Cambridge Quarterly of Healthcare Ethics 15, no. 2 (2006): 161–171; Batzer F. R. , “Postmortem Parenthood and the Need for Protocol with Posthumous Sperm Procurement,” Fertility and Sterility 79, no. 6 (2003): 1263–1269; Orr R. D. , “Is Posthumous Semen Retrieval Ethically Permissible?” Journal of Medical Ethics 28 (2002): 299–302; Katz K. D. , “Parenthood from the Grave: Protocols for Retrieving and Utilizing Gametes from the Dead or Dying,” University of Chicago Legal Foundation (2006): 289–316; Nikolettos N. , “Intrafamilial Sperm Donation: Ethical Questions and Concerns,” Human Reproduction 18, no. 5 (2003): 933–936.

See Murphy , supra note 92.