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West Point cadet Peter Zhu: Sperm retrieval case raises thorny ethical, legal questions

Updated: Jun 15, 2019

This was a tricky story to tell, about the ethical considerations involved in the tragic case of a West Point cadet who died in a skiing accident. His parents sought to retrieve his sperm before his organs were harvested for donation. The clock was ticking and the judge sided with his parents, setting up a much larger decision, which came months later. This piece set up what was at stake.

The case of Peter Zhu, the West Point cadet whose death and ensuing court case made national headlines this week, will keep bioethicists, medical and law students — and at least one court of law — busy for some time to come.

Zhu's parents recently won a court order giving them permission to retrieve sperm from their brain-dead son, their only child, in the hopes of continuing the family name.

For those who study the issue, the case raises a host of thorny ethical issues.

Among them: Who has legal standing to determine a person’s reproductive rights? How can doctors establish a dead patient's intent? And where is the line between a parents' role as medical surrogate and a decision to create a new life?

These points may arise in the Westchester Supreme Court courtroom of the Hon. John P. Colangelo on March 21. The judge won't have a lot of legal precedent to work with, but he will have professional guidance papers from bioethicists, who see a slippery slope in granting reproductive control to parents.

Kathleen ‘‘Casey’’ Copps DiPaola, of the Albany-based law firm of Copps DePaola Silverman PLLC, said the firm and its clients — parents Monica and Yongmin Zhu — would not discuss the case.

The Zhus buried their son at the West Point Cemetery on Thursday, a somber end to a dizzying two weeks.

The cadet, who was to graduate in May, fell while skiing on the West Point ski slope on Feb. 23 and suffered a fractured spine. He lay unconscious for 15 minutes before rescuers detected a heartbeat. By Feb. 27, the Concord, California, native was declared brain-dead.

He was put on life support while doctors prepared for transplant surgery. In 2014, Zhu had checked an organ-donor box when renewing his driver's license. 

Doctors knew he wanted to donate vital organs, but they had no written notice of Zhu's feelings regarding having children. He left no wife or partner, but his parents insisted, in a petition heard by Colangelo on March 1, that he had talked often about wanting a big family.

They asked the judge to order Westchester Medical Center doctors to retrieve his sperm so that the Zhu family name — which, in their Chinese culture, is passed by male heirs — could continue. He agreed.

'We'll definitely be talking about this case'

Arthur Caplan teaches bioethics at New York University Langone Medical Center.

“I teach a course on reproductive ethics and I’ve been writing about this subject for 20 years,” Caplan said. “Yeah, we’ll definitely be talking about this case.

"It's highly controversial because we're not getting a request from a wife or a longstanding girlfriend," he continued. “Normally your parents don't get to decide when you reproduce."

Caplan recalled his first case in this area, 20 years ago at the University of Pennsylvania. 

“I had talked with our urologists and they said it was possible to get sperm out of a dead man, just hypothetically,” he said. “I talked about it on the radio locally in Philly and the next day a young guy is at a barbecue with his wife and he drops dead of a stroke. She tells the doctors: ‘I heard on the radio that you could get sperm.’ I believe that was the first U.S. case."

“Normally your parents don't get to decide when you reproduce.”

Caplan said there is no single standard for how these cases are handled. He said policies should address who can make a request, who will be able to use the retrieved sperm, and, importantly, how long they'll have to wait before making those decisions.

In the case of the man at the barbecue, Caplan said he devised the policy on the fly. Since the widow and her sister insisted that the dead man had wanted to have a family, the hospital approved the sperm retrieval.

"I said we should agree on a cooling-off period, maybe six months, before you get to use the sperm just to see, once you're through the initial grief and the shock, what would you decide to do," he said.

Six months later, she decided not to go through with fertilization, and the sperm was disposed of.

Choice is personal, not medical

Nancy Berlinger is a research scholar at the Garrison-based Hastings Center, a nonpartisan institute that researches ethical and social issues in health care, science, and technology.

She said the American Society for Reproductive Medicine issued a professional guidance paper last year dealing with this precise issue.

The paper — “Posthumous retrieval and use of gamete or embryos: an Ethics Committee opinion” — is similar to the Zhu case, and follows many of the steps Caplan laid out decades ago.

It concludes that physicians rely on expressed written intent from the dead man before extracting sperm.

Barring that, Berlinger said the passage that bears directly on the Zhu case is in the paper’s conclusion that sperm-retrieval requests should be granted only to surviving spouses or life partners, not to parents.

“In ethics, we view that decision, about the use of our own genetic material to create a new person, as our own choice," she said. "They’re not medical decisions.” 

'You can't give them back what they lost'

The Zhu case is tragic, but the possible remedy is limited, Berlinger said.

"While respecting the parents’ terrible loss and terrible grief, there's no way to recreate what they lost," Berlinger said. "You can't recreate their son. You can't give them back what they lost. It's not justifiable to retrieve reproductive materials in the hopes of creating a person to benefit the family in a more general way.”

And there is the Zhus' petition's reliance on their Chinese culture to consider.

"The values expressed in this case by his parents were pretty specific, not just wanting a family but the part about the importance of a male heir," Berlinger said. "It sounded pretty close to saying that they wanted a genetic male, that that was very important to them."

Caplan said that is a heavy lift for the medical community.

"Medicine is respectful of culture," Caplan said. "But saying you want to continue the family line is a rationale that I think some doctors and medical teams would not accept. You can respect that idea, but you can say, too, 'Look we don't force people to reproduce to continue the family line, unless they're like the Queen of England and they're looking for an heir.'"

Caplan wondered what would happen if the parents went through the expensive in-vitro fertilization process, which provides no guarantees as to the sex of the baby, and a female baby were born?

"Could they abort it?" he wondered. And what happens to the sperm when the parents die?

Caplan said there is no case law of note to guide Justice Colangelo. 

"We have had situations in the U.S. and overseas where parents have been able to obtain sperm and use it," he said. "Israel is a country, for example, where that happens."

Caplan takes the position that, if he is guided by medical bioethical considerations, the judge should decline to permit the use of Zhu's sperm.

Berlinger agreed.

“Professional guidance is not law, but the court may draw on this, because it does reflect the consensus view of experts and aims to guide good practice," she said. "If you were to follow the ASRM guidance to the letter, you would refuse the family's request. You would say this is not justified."

'We want things all the time'

The Zhu case was uncharted territory for Westchester Medical Center Health Network, which noted its legal predicament in a statement after Colangelo issued his order.

“From time to time, like most hospitals, Westchester Medical Center is presented with complex legal and ethical situations where guidance from the court is appropriate and appreciated," the statement read. "Westchester Medical Center is grateful the family sought a court order during such a difficult time.”

The fact that Westchester required a court order to conduct the sperm retrieval, because its doctors had not been faced with such a situation, suggests Peter Zhu’s name will live on in hospitals and medical schools and in law schools.

“This is going to be a case that will be discussed,” Berlinger said.

When it is discussed, the personal loss will be part of that discussion. 

“This is a terrible family tragedy. This is so sad," Berlinger said. "When ethics enters a situation like this, it's not to tell people that they shouldn't have the emotions they have. You have to listen to the parents’ grief. It does not necessarily mean that you will be able to do what a person requests, but ultimately what you can't give them is what they lost.”

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