WEST POINT, NY – The parents of a 21-year-old West Point cadet who is badly injured in a ski accident can use his frozen sperm to produce a child a judge ruled while he noted potential ethical considerations.
Supreme Court Justice John Colangelo's judge, dated Thursday, gives Peter Zhus parents the opportunity to attempt to perceive with a surrogate mother using their late son's sperm. The judge said that Zhus's parents have not decided whether to try to use it.
"At this point, the court will not impose any restrictions on the use of which Peter's parents can ultimately put their son's sperm, including its potential use for propagation purposes," Colangelo wrote.
Zhu, of Concord, California, died after a February ski accident at West Point. His parents were given the right to have his sperm retrieved and frozen while undergoing organ donation, but the judge waited until last week to rule on whether they could attempt reproduction. The sperm is preserved at a sperm bank.
Colangelo said he did not find any restrictions on state or federal law. He noted that few courts have dealt with the issue of posthumous reproduction, but those who addressed it used the decree's decisive factor. He referred to a case in 2008 where a court ordered the destruction of a man's sperm according to his written request during his lifetime despite his widow's claim of sperm as her property.
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Zhu left no written intent on the use of his genetic material for reproduction after his death said colangelo. But he said that Zhus's parents testified about conversations where he talked about his dream of having more children and the responsibility he felt continuing his cultural and family heritage. Zhu's military advisor at West Point also testified that Zhu had set a goal of having more children during mentoring.
Monica Minzhi Yao, Zhu's mother, said Monday that the family wants privacy and will not comment on the case. "We are very devastated by this freak accident," she said. "Our pain is something that no words can describe."
And while Colangelo left the decision on what to do with Zhu's sperm for his family, he noted that there might be other obstacles, including restraint from some doctors to help for ethical reasons.
Typical trials with posthumous reproduction are typically administered by surviving spouses, not parents. But Zhu's case is not unprecedented.
In 2007, a Iowa court authorized the recovery of a man's sperm by his parents to donate to his fiance for future procreative use. In 2009, a female woman received a judge's permission to have her 21-year-old son's sperm recovered after his death with the purpose of hiring a surrogate mother to carry her grandchild.
In 2018, the American Society for Reproductive Medicine was issued ethical guidelines for fertility centers on posthumous collection of reproductive tissue. The organization said it was justified if the deceased had received written permission. Otherwise, it says that programs should only consider requests from the surviving spouse or partner.