Judge Colangelo's decision reached us late in the day. I pulled together this story in a matter of a couple of hours.
The parents of a 21-year-old West Point cadet who died in a skiing accident can use their son’s frozen sperm — retrieved under court order when he was in a coma at Westchester Medical Center in February — to produce a child, a Westchester judge has ruled.
The 12-page decision by Westchester Supreme Court Justice John P. Colangelo, dated May 16, is a victory for Yongmin and Monica Zhu of Concord, California, parents of Peter Zhu.
The ruling came days before Saturday's U.S. Military Academy Commencement.
“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,” Colangelo wrote. “They shall possess and control the disposition and potential use of their son Peter's genetic material."
Within days of the cadet’s Feb. 23 accident on the West Point ski hill — with their son in a coma in preparation for the organ transplants he had authorized on his driver’s license — the Zhus asked Colangelo to order Westchester Medical Center to retrieve Peter’s sperm and permit them to “use his sperm for third-party reproduction.”
The medical center had said that the unmarried cadet had left no directive for postmortem sperm retrieval; it would need a court to order to perform one.
On March 1, Colangelo ordered the medical center to retrieve the sperm and transfer it to a facility of the Zhus’ choosing. The family selected a local sperm bank.
Their son’s organs were harvested and went to help those in need; the cadet’s remains were then buried in the West Point Cemetery.
What Peter wanted
On March 21, Colangelo turned to the parents’ request for third-party reproduction. They testified by phone from their California home.
The judge had to rely on the Zhus’ petition and recollections, including their son's repeated desire — expressed to them and to friends throughout his life — that he wished to have a family.
They also pointed out that his choice to enter the military was a sign of their son’s generosity of spirit.
Wrote Colangelo: “Unfortunately, Peter left no express direction with respect to the posthumous disposition or use of his genetic material, including how or whether it could or should be used for procreative purposes. Nonetheless, Petitioner's presumed intent can be gleaned from certain of his prior actions and statements, in conjunction with statutes designed to serve as surrogates for a decedent's intent.”
Colangelo noted Peter’s organ-donor status, a sign, his parents told the judge, of his desire to help others. Peter’s kidney and pancreas gave a 53-year-old man a new life; his heart now beats in the chest of a 12-year-old girl.
Granting permission to use Peter’s sperm for procreation, Colangelo ruled, “would not do violence to his memory.”
Still, it's unclear whether doctors will go along with the parents' wish, even one granted by a court.
An ethical slippery slope
For medical ethicists who study the issue, Zhu’s failure to express his intentions while he was alive posed something of a dilemma.
The American Society for Reproductive Medicine issued a report in April 2018 raising specific concerns regarding posthumous reproduction sought by parents rather than a surviving spouse. Peter Zhu was unmarried and had no fiancée or girlfriend.
Colangelo also weighed testimony from Capt. Marc Passmore, Zhu’s West Point mentor.
Passmore told the judge about mentoring sessions with Peter in which he “emphasized a goal of having several children.”
Passmore pointed to what West Point calls a “baseball card” each senior cadet fills out. The card resembles the back of a baseball card, with the cadet’s stats and interests listed.
Wrote Colangelo: “Peter's card, completed by him only months ago, lists as his “Family/Goals/Notes” to “have three kids, get married before 30; become a career officer in the military.”
Having established that Peter wanted to be a father, Colangelo then ruled that statutes support giving his parents — his closest kin — power to decide “the fate of his biological legacy.”
He cited the Public Health Law and Estates, Powers and Trusts Law as “additional, albeit imperfect guides” to Peter’s intent.
The Public Health Law, he said, “authorizes the donation and therefore disposition of bodily organs and, by extension, bodily fluids even in the absence of a potential decedents's express intent.”
A pecking order of rights
The law establishes a pecking order of consent, Colangelo said, from health-care proxy, or agent, spouse or domestic partner, son or daughter over the age of 18, or either parent.
In the absence of a spouse or children, living will or proxy, the Zhus were “next on the list,” Colangelo wrote.
A similar pecking order is spelled out in the Estates, Powers and Trusts Law, Colangelo said, when determining how the property of a decedent be distributed.
“Thus, in the instant case, the inferential emanations from the PHL, the EPTL, and Peter's donor card dovetail with Peter's personal history to arrive at the same result: The imperative that the decision regarding the disposition of Peter's genetic material be made in the first instance by his parents.”
'Certain obstacles'
But Colangelo warned the Zhus that while he was granting them legal permission, there were other “certain obstacles” to surmount before deciding whether to exercise that right.
Medical professionals might be reluctant to perform such a procedure, he noted, citing the April 2018 admonition from The American Society for Reproductive Medicine.
Colangelo also said some states have decided that a child born during a certain period of time after a father’s death “may not be deemed such father's offspring for certain purposes.”
Calls to Westchester Medical Center seeking comment were not immediately returned.
Whether the Zhus choose to exercise the power granted to them by the judge is yet to be seen.
Wrote Colangelo: “The Zhus testified that they are not now prepared to definitively state that they will use the sperm for third party reproductive purposes, nor have they taken any concrete steps to do so; no potential surrogate or eggs have been located or even sought after, and no physician retained.”
Had things gone to plan, Peter Zhu would have graduated on Saturday with his classmates at West Point, the first lieutenant hurling his hat in the air at Michie Stadium with fellow members of The Long Gray Line.
His parents, no doubt, would have been there, beaming at his accomplishment.
Instead, they are in California, without their son, but with a newfound right.