Legal implications surrounding testicular sperm extraction (TESE) are few when compared to other methods of sperm collection and donation. This is directly related to the procedure. TESE is more invasive and yields far less viable sperm than other procedures. It is generally used by couples who wish to conceive shortly after the procedure.
Although litigation is rare, legal questions surrounding the use of the procedure have been addressed in certain situations. Most often, these cases involve the use of TESE on critically ill patients and the use of TESE as a posthumous (after death) extraction procedure.
TESE in Critically Ill Patients
Persons with cancer or other serious illness may opt to have their sperm extracted and preserved. In some patients, the treatments used to arrest the disease can seriously affect the ability to produce offspring later. Others who are too ill to produce sperm in the seminal fluid may also opt to undergo the TESE procedure.
These options raise serious legal questions regarding the method of collection, storage and use of the extracted sperm. In most cases, the patient must consent to the collection. If the patient has not given consent, the wife or family members must provide compelling testimony or proof that the patient has a strong desire to father a child. These types of cases usually involve a patient who is comatose or mentally incapacitated.
Families of critically ill minor children face additional challenges. If the child is old enough to understand the procedure, TESE may only be performed with the consent of the minor child. Children who are too young to understand cannot give consent; therefore, the parents must demonstrate that the procedure will benefit the child. In this case, the procedure must not pose an additional risk to the child’s health.
Unfortunately, some patients will not survive the illness. Patients who want their wishes respected after death should provide specific written instructions. These instructions should include who is allowed to use the sperm, if the sperm is to be donated and directions for disposal.
Family members who wish to extract and preserve semen from the deceased must provide compelling evidence that indicates the deceased expressed a desire to father a child, even after death.
The status of posthumous sperm extraction has not been decided. Many advocate that sperm collected after death should be treated as an organ donation; therefore, the same laws that govern organ donation should apply to posthumous sperm collection.
The welfare of the child is another legal concern. The mother’s ability to financially provide for the child in the absence of the father is often raised in cases where the deceased did not provide consent prior to death. In addition, some individuals question if a child produced posthumously should be entitled to any inheritance from the deceased or his family.
Lastly, some family members may object to a posthumous TESE procedure because it violates respectful treatment of the deceased person’s body. This may arise if the family is religiously prohibited from consenting to an autopsy or marking the body after death.
Legal issues concerning posthumous TESE have occurred in only a few cases. Presently, most issues decided by the court are made in individual cases.