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Texan judge permits post-mortem sperm collection

14 April 2009
Appeared in BioNews 503

The mother of a 21-year old Texan man who died following a fight outside a bar has obtained a court ruling in her favour allowing her to collect sperm from her son's body post-mortem.

Nikolas Colton Evans died last March but although his mother had already chosen to donate his organs to the 'Texan Organ Sharing Alliance' the organisation was not able to collect his sperm. Mrs Evans told reporters that before he died he had expressed the desire to have three sons in the future, having even chosen their names - Hunter, Van and Tod. 'I want him to live on. I want to keep a piece of him,' she said.

Mrs Evans contacted lawyers after she was unable to find a urologist willing to perform the sperm collection and enlisted the help of attorney Mark Mueller who made the application on her behalf. Texan law surrounding post-mortem sperm collection is unclear, said bioethicist John Robertson at the University of Texas. 'There are no strong precedents in favour of a parent being able to request post-mortem sperm retrieval,' he said. This position has now been somewhat clarified with Probate Judge Guy Herman finding in favour of Mrs Evans after an emergency ruling in the Travis County Court last week. The application was unopposed. Whilst the ruling does not oblige any persons to harvest the sperm, it ordered the Medical Examiners Office to keep the body temperature at around 39 degrees and allow access by urologists seeking to extract the sperm. It also clarifies that the procedure is lawful thus removing any possible legal concerns of anyone undertaking the procedure. The court documents released show how the court was mindful of the 'irreparable harm' caused by failing to harvest the sperm on time, although it is unclear to whom the harm actually applies to. The sperm has now been retrieved and is available to be used in IVF procedures.

Some commentators have expressed ethical concerns over the court permitting Mrs Evans to have a 'replacement child' and any impact on the future child or children conceived after their father has died. 'This is a tough way for a kid to come into the world. As the details emerge and the child learns more about their origins, I just wonder what the impact will be,' said Tom Mayo of the Southern Methodist University. Mrs Evans is yet to select a biological mother but it is likely that the child will have no contact with her and will be brought up by Mrs Evans. She defended her position saying having children was something Nikolas had 'talked about since he was a little boy and I always dreamed about watching my children have children of their own, so it wasn't difficult to make this decision.'

Judge OKs collecting of dead son's sperm |  8 April 2009
Judge orders collecting of dead son's sperm |  8 April 2009
Mother can have dead son's sperm harvested, Texas judge rules
CBC News |  8 April 2009
Mother harvests dead son's sperm to have longed-for grandchild
New Scotsman |  13 April 2009
Texas judge allows collection of dead son's sperm
Associated Press |  9 April 2009
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