AP via United States Military Academy
West Point Cadet Peter Zhu was just three months from graduation when he died Feb. 28 after an accident on a ski slope in New York. A judge ruled May 23 that Zhu's parents can try to produce a child using his sperm.

SALT LAKE CITY — The parents of a West Point cadet who died in February can use his sperm to produce one or more children, a New York judge has ruled in a case that could help posthumous reproduction become more common.

The parents of the late Peter Zhu had asked the court for the right to use their son's sperm to order to carry on his legacy and to fulfill his wish to give them grandchildren. "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," Yongmin and Monica Zhu, of Concord, California, wrote in their petition.

Peter Zhu was 21 and a few months from graduation when he was found unresponsive on a ski slope near the U.S. Military Academy at West Point in New York on Feb. 23. He died five days later, according to Army Times.

Less than four hours before the cadet's organs were to be be retrieved, state Supreme Court Justice John Colangelo gave permission for the sperm to be collected and stored, but put off making a decision about what could be done with the genetic material. His latest ruling came May 16, eight weeks after a hearing on the case.

The case had drawn widespread attention because there are so few legal precedents for a procedure that is medically straightforward but ethically complex.

Ethical considerations include the psychological effects on the child or children and the possibility of sex discrimination in choosing an embryo, bioethicists say.

There are also logistical problems, such as who would legally be the father of Zhu's biological child. 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.

In the decision, Colangelo said in a case such as this, the wishes of the deceased matter more than the wishes of the living: "The talisman must be the decedent's intent," he wrote.

Peter Zhu did not leave a written directive regarding his genetic material, but he was an organ donor, which the parents argued was indicative of his strong desire to help others. (Colangelo's decision noted that Peter Zhu's heart went to a 12-year-old girl and his kidney and pancreas to a 53-year-old man.)

The justice took this under consideration, along with testimony by Zhu's parents and a West Point advisor who said the young man had repeatedly talked about the family he was looking forward to having. Colangelo also noted that parents are among the people who can authorize an "anatomical gift" in the absence of a written directive from the deceased.

Such a gift was central to the reasoning in a 2007 case, cited in Colangelo's decision, in which the sperm of an Iowa man who died in a motorcycle accident was given to his fiancee with the parents' consent.

In that case, the fiancée ultimately decided not to attempt to have a child through IVF, Andrew Joseph reported for STAT, and the sperm was likely destroyed by thawing when her contract with a sperm bank expired.

The Associated Press reported that Zhu's mother asked for privacy on Monday. “We are extremely devastated over this freak accident. Our pain is something that no words can describe," she said.

With the ruling, the Zhu case joins a patchwork of decisions helping to guide judges through a morass of legal and ethical questions stemming from the development of artificial reproductive technology, or ART, more than 40 years ago. They include what should be done with frozen embryos if the couple no longer wants or needs them, and who gets the embryos in the case of divorce or separation.

The first posthumous recovery of genetic material was done about 30 years ago, according to Dr. Mark V. Sauer, chairman of the Department of Obstetrics, Gynecology & Reproductive Sciences at Robert Wood Johnson Medical School at Rutgers University.

The Ethics Committee of the American Society for Reproductive Medicine, of which Sauer is a member, issued guidelines for physicians in 2018, but Sauer told the Deseret News in March that he would like to see states adopt laws regarding the issue rather than leaving judges to deal with each case individually.

"In the context of a lot of trauma and a lot of drama, these decisions are being made," Sauer said.

Peter Zhu's parents have not yet made a decision about whether they will try to produce a child with their son's sperm, nor have they chosen a mother or doctor, according to Colangelo.

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The judge warned that the couple might have difficulties finding physicians for IVF because some doctors are reluctant to perform the procedure at the behest of the parents, rather than a spouse or fiancé. But the decision of whether to try to create a child, or children, will be up to them.

"At this time, the court will place no restrictions on the use to which Peter's parents may ultimately put their son's sperm, including its potential use for procreative purposes," the ruling said.