United States Military Academy via AP
In this undated photo provided by the United States Military Academy at West Point, N.Y., USMA cadet Peter L. Zhu is shown. West Point officials say Zhu died Thursday, Feb. 28, 2019 of injuries he sustained while skiing on Feb. 23 at Victor Constant Ski Area on the academy grounds. (United States Military Academy via AP)

SALT LAKE CITY — He was their only child, a son, prized in their homeland of China as the person who would carry on the family name.

So when Peter Zhu broke his spine on a ski slope in February and was later declared brain-dead, California residents Yongmin and Monica Zhu suffered not only the loss of their 21-year-old son but also the end of their family’s lineage.

Now, the couple is hoping that a New York judge will mitigate the tragedy by granting them the right to have a grandchild using sperm collected when their son's organs were removed for transplant. A hearing is scheduled March 21 in New York.

The unusual case is being watched by bioethicists and assisted reproduction experts around the country because if the judge grants the Zhus’ request, the decision could result in an increase in the number of people who ask that the sperm or eggs of their deceased loved ones be preserved.

It’s an easy procedure but ethically complex, especially when grandparents are making the request, not a bereaved partner or spouse.

The considerations include not just the rights of the living and the dead, but also the welfare of the child or children that could be conceived because of the decision. And while the American Society for Reproductive Medicine has issued ethical guidelines for posthumous conception, there are few laws that govern the practice, leaving judges, in effect, the power to authorize a new life.

" We are desperate to have a small piece of Peter that might live on and continue to spread the joy and happiness that Peter brought to all of our lives. "
The Zhu family

"In the context of a lot of trauma and a lot of drama, these decisions are being made. And the basic issue here … is that the law may not be congruent with ethics or moral decisions that go on in our field. The law oftentimes follows the science. I don't know if that's a good thing or a bad thing," said Dr. Mark V. Sauer, chairman of the Department of Obstetrics, Gynecology & Reproductive Sciences at Robert Wood Johnson Medical School at Rutgers University.

A key factor in whether a judge authorizes the collection and release of gametes — the cells of reproduction — is the existence of consent by the deceased, either explicit or implied.

The Zhus say their son repeatedly expressed a desire for a large family, and they argue in a court filing that using his sperm to conceive a child posthumously grants his wish, while perpetuating the family name and helping the couple cope with their grief.

"We are desperate to have a small piece of Peter that might live on and continue to spread the joy and happiness that Peter brought to all of our lives," they said.

But bioethicists warn that doing the kind thing isn't always doing the right thing and that difficult decisions like the one facing New York Justice John P. Colangelo, the judge in the Zhu case, could be averted by advance directives. That's easier for a couple making plans for their future, but it's not typically a conversation that a 21-year-old brimming with potential typically has with parents — which is why Colangelo is facing a decision that is literally the stuff of life or death.

Rush decisions

Peter Zhu, a cadet at the U.S. Military Academy at West Point, was on track to graduate in May and attend medical school. But he was found unconscious at a ski slope Feb. 23 and determined to be brain-dead because of a fractured spine that cut off oxygen to his brain.

United States Military Academy via AP
In this undated photo provided by the United States Military Academy at West Point, N.Y., USMA cadet Peter L. Zhu is shown. West Point officials say Zhu died Thursday, Feb. 28, 2019 of injuries he sustained while skiing on Feb. 23 at Victor Constant Ski Area on the academy grounds. (United States Military Academy via AP)

On the day his organs were to be retrieved for transplantation, his parents filed an emergency request asking that his sperm also be collected, and Colangelo granted the request less than four hours before the transplant surgery was to begin. But the judge only ordered that the sperm be collected and stored, saving the decision about what to do with the cells for later.

There is a necessary urgency to the process because gametes must be collected at or near the time of death. Even so, the urgent timeline does not allow for the thoughtful consideration of the issues involved in posthumous conception, said Sauer, a longtime member of the Ethics Committee of the American Society of Reproductive Medicine.

These issues include who will bear the child, who will raise it and how the circumstances of birth will psychologically affect what some have called “memorial children.” And in some states, biological parents who are dead before the child is conceived can’t be listed as a parent on a birth certificate because of states’ laws on inheritances and the complications presented by Social Security benefits.

" The child will never replace the person you've lost. "
Dr. Louise King, an assistant professor of obstetrics, gynecology and reproductive biology at Harvard Medical School in Boston

"There are a lot of downstream issues here. And with all due respect to these parents, it's awfully hard to know what you're facing," Sauer said.

In previous cases, most involving a bereaved spouse or partner, judges have imposed waiting periods so that their judgment is not clouded by grief.

“When a spouse has given explicit permission, we still ask them to wait, and we ask them to wait because after about a year’s time, they tend to withdraw the request,” said Dr. Louise King, an assistant professor of obstetrics, gynecology and reproductive biology at Harvard Medical School in Boston.

"And the reason for that is that you're trying to replace someone, and of course, the child will never replace the person you've lost," she said.

One example is the case of Daniel Christy, cited in a 2018 paper published in the Journal of Law and the Biosciences.

Christy was pronounced brain-dead after a motorcycle accident in 2007, and his fiance, with the support of his parents, asked to retrieve his sperm. Initially denied, the collection was ultimately authorized by a judge that likened sperm retrieval to that of organs.

"The court held that under the Uniform Anatomical Gift Act, the term ‘anatomical gift’ also includes sperm donation. It argued that such a donation could be granted by either the donor himself or, if he did not refuse to make such a donation, his parents," wrote Shelly Simana, a doctoral candidate at Harvard University, in "Creating life after death: Should posthumous reproduction be legally permissible without the deceased's prior consent?"

In the paper, Simana argues that posthumous reproduction should be permitted when it is in the interest of the living, including grandparents, and when the deceased did not explicitly say he or she was against it.

As King noted, however, sometimes time strips away the desire.

Christy's fiancée obtained his sperm through a court order, but never used it, she told Andrew Joseph of STAT. She eventually married and had children with someone else and did not renew the contract with the sperm bank when it expired, meaning that the sperm was likely thawed, ending its life-giving potential.

The possibility of a secondary death — “it can appear to the parents that they’re killing part of their son” — is something else people don't usually think about in the immediate pain of loss and the rush to obtain gametes, said Mark Wicclair, adjunct professor of medicine at the Center for Bioethics & Health Law at the University of Pittsburgh.

There have also been cases where sperm was saved and conception attempted, but a pregnancy did not result.

That's why it's often better just to not save the gametes at all, Wicclair said, unless there is a "very compelling reason."

“Even with a waiting period, there can be significant pressures on a person not to change their mind, even if they have second thoughts."

A need for policy

According to the Zhus, their cultural identity is one of the "compelling reasons" that Wicclair said could justify a request.

In their court filing, the Zhus wrote that their extended family had suffered from China's longtime one-child policy, and their son had been family's only chance to continue its lineage, since in China, the family name is only passed on through males.

"When Peter was born, his grandfather cried tears of joy that a son was born to carry on our family's name," they wrote. "Peter took this role very seriously and fully intended to carry on our family's lineage through children of his own."

While that argument may sway people in China, it is unlikely to fly in the American judicial system, said King, noting that Israel is the only country that liberally grants posthumous reproduction rights, in part because of the genocide perpetuated on the Jewish people and the perceived need to repopulate globally.

" I’ve never lost a child, but I know that it scars you for the rest of your life. Every child is irreplaceable. "
Paige Comstock Cunningham, executive director of the Center for Bioethics & Human Dignity at Trinity International University in Illinois

Wicclair also said that a person’s desire to have children in life doesn’t necessarily apply to having children after death.

“Would the cadet have approved of having a child after being deceased when he had absolutely no control over who the mother would be or how the child would be raised?” he asked.

The Zhus' cultural argument is disturbing for another reason to Paige Comstock Cunningham, executive director of the Center for Bioethics & Human Dignity at Trinity International University in Illinois.

She said that if granted the right to Peter’s sperm, the Zhus would likely select only male embryos because of their cultural preference for boys.

“That’s discrimination even before the child comes into existence," Cunningham said. "It’s very possible the female embryos will be destroyed, and I find that really troubling.”

While Cunningham said she deeply sympathizes with the Zhus on the loss of their son, she believes that difficult decisions can’t be made solely for reasons of compassion.

“One of our characteristics culturally is that we tend to make these ethical decisions based on how we feel about something. And we as Americans are very compassionate and we empathize with people who have experienced great loss.

“I’ve never lost a child, but I know that it scars you for the rest of your life. Every child is irreplaceable. But we tend to think that whatever it takes to alleviate pain and suffering is justifiable. I have problems making these decisions based on how badly this makes us feel and how tragic the circumstances are," Cunningham said.

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Both Wicclair, at the University of Pittsburgh, and Sauer, at Rutgers, say there's a need for states to deal with this issue legislatively, rather than leaving judges, pressured by grieving families, to make quick decisions, sometimes without precedents.

Although posthumous gamete recovery was first done in the U.S. 30 years ago, there’s been little legislative guidance, Sauer said.

“It would be in the best interest of each state to have a statutory law that governs it,” he said. “For physicians like myself, it would be very helpful to have some guidance, one way or the other.”