• Health The new Medical Code of Ethics admits altruistic surrogacy while the law rejects it
  • Psychology The opinion of experts on the surrogacy of Ana Obregón: "With 70 years, no matter how much someone lives, at 15-20 years there will no longer be a father or mother"
  • Health Ana Obregón presents her granddaughter, daughter of Aless Lequio: "It was his last will"

In Spain, the desire for paternity of Aless Lequio Obregón would not have been possible today. Spanish legislation makes clear the only plausible scenario: if in the will he had stated that his partner had used the frozen sperm previously and never after 12 months of death. Once this moment arrives, it is also necessary to leave foreseen if the samples are eliminated or donated to Science.

Ana Obregón has fulfilled her son's wish in the US. There the range of possibilities multiplies and becomes more feasible. Conceiving a grandchild without physical presence is an act that has been carried out more times. The scientific literature has collected some cases, such as that of Ekaterina Zakarova. According to the 2006 British Medical Journal, the 55-year-old lost her son Andrei, but managed to persuade doctors, two years after her death, to use her frozen sperm to fertilize a donor egg that was then implanted in an alkyl womb. Andrei's sperm had been frozen before receiving treatment for the cancer from which he died.

Zakarova, as the article collects, explained that just before treatment in Israel, her son had left 'everything tidy' to preserve his sperm, hoping that one day she would have children. After her death, she contacted the sperm bank and a fertility clinic in Yekaterinburg, western Russia, and they agreed to help her.

In the US, the American Society of Assisted Reproduction (ASRM, for its acronym in English) contemplates in a document the supposed umbrella that protects the case of the Spanish presenter. "The posthumous removal or use of gametes (sperm or oocytes) for reproductive purposes is ethically justifiable if written documentation is available from the deceased authorizing the procedure. However, recovery does not commit a center to its subsequent use for reproduction. The use of embryos is also justified with such documentation."

"Programs should take into account that state laws vary as to whether children conceived posthumously are legally recognized as children of the decedent. State laws may also vary as to the permissibility of posthumous recovery or the use of gametes or embryos. Clinics should be well informed about and comply with applicable state laws, and should inform patients that they may wish to seek legal counsel regarding state laws that may affect their and their children's legal rights."

Other cases of 'fatherless' grandparents

Thus, in the state of California, a case was made public in 2019 in which the parents of Peter Zhu, a 21-year-old West Point cadet who died in a skiing accident, received authorization to use his frozen sperm to have a grandchild. The judicial authorization gave the green light and pointed out possible ethical considerations. John Colangelo, the Supreme Court justice, gave Peter Zhu's parents the chance to try to conceive with a surrogate mother using their late son's sperm. "At this time, the court will not impose restrictions on the use Peter's parents may give to their son's sperm, including its potential use for procreative purposes," Colangelo wrote.

Outside the US and Russia, there have also been known cases of grandparents who have had offspring in the absence of living children. Specifically, five years ago in India a woman used the frozen sperm of her dead son to have grandchildren through a 'surrogate', as reported by the fertility portal Progress Campaign for Research into Human Reproduction (PET). Prathamesh Patil died of a brain tumor in 2016, but made the decision to preserve her sperm before undergoing chemotherapy and radiotherapy procedures. Patil was not married, but he recorded an authorization for his mother and sister to use it in case of his death.

Rajashree Patil, the mother, obtained the sperm after her death and doctors at Pune's Sahyadri Hospital used it to fertilize eggs from an anonymous donor. The resulting embryos were implanted in the uterus of a cousin of the mother, who acted as a surrogate womb. The resulting conception was twin babies, a boy named Prathmesh and a girl named Preesha.

The article reflects the position of Hari Ramasubramanian, founder of the Indian Subrogacy Law Centre, who described the ethical issues of the case: "There are four issues here. First, did the son consent to his semen being used for procreation after his death? Second, how will grandparents secure the future of newborns in all aspects of life and living? Thirdly, while a person has the right to be a father, the right to be a grandparent is completely outside the scope of fundamental rights. Fourth, and most importantly, what about the child's rights to normal parenting?"

In the United Kingdom, the case of a couple who collected sperm from their deceased 2018-year-old son to 'make' a 'grandson' three days after he died in a motorcycle accident was also very controversial in 26. Without permission or authorization from the couple (there were no legal ties), they conceived their grandson in the US and later moved back to English soil.

Almost 25 years of regulation and bioethical controversy

Before jumping a line of succession from children to grandchildren, the controversial cases of sperm use after the death of a couple in the twentieth century, were the ones that restructured and shaped the current legislation. The legal and ethical considerations that fester from the different assumptions show that there is no closed positioning and that the possible actions are different according to the cases.

One of the first cases to come forward in 1999, published in The New York Times, was that of a woman who won the court battle to be a mother after the sudden death of her husband. The sperm was collected posthumously and by artificial insemination he had two children a posteriori. According to a 1997 survey conducted by the University of Pennsylvania Center for Bioethics, 14 clinics in 11 states recovered sperm from deceased loved ones, usually within the day after death.

In this article, signed by Lori B. Andrews, a lawyer specializing in genetic and reproductive technologies, she pointed out 24 years ago the issues that are currently the subject of debate. Inthese years progress has been made in the legislation of the use of frozen sperm, today a notarial or judicial endorsement is needed that collects the express desire of the owner of the same to be used in the future according to criteria, but ethical and psychological issues remain.

A bioethicist, Timothy Murphy of the University of Illinois College of Medicine, mentioned by Andrews in his text, reflects years later, in a 2005 text, on the impact of in vitro fertilization and embryo transfer, gamete donation and surrogacy. "All of these innovations raise questions about identity and human relationships: What identities are possible for children born with their help, when connections with deceased parents are simply biological? Are we forging new opportunities for human intimacy and well-being or are we fracturing the essential dynamics of family life? These questions don't stop at the doors of fertility clinics."

Along with Murphy, Cristina Richie, from the Department of Bioethics and Interdisciplinary Studies at Brody School of Medicine, University of East Carolina, points out in another more recent article (2020) published in Global Bioethics Enquiry, the issues that will arise when you want to be a grandparent posthumously and the need to develop a complete regulation. "Requests will be more frequent from the medical industry and this alone is a compelling reason for all major hospitals to make policy." Richie proposes that the current legislation in the state or country in which it is carried out be taken into account; the patient's written informed consent in the presence of a witness; a string of specific specifications of the terms of use; and wait at least a year-long grieving period before family or friends can access sperm.

  • Ana Obregon
  • Surrogacy

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