In a highly unusual case, a Jewish doctor in California successfully used sperm from a man who had been dead three days to create a grandson for a wealthy British couple, it was reported Sunday.
World-leading fertility specialist David Smotrich used sperm harvested from a 26-year-old unmarried man who was killed in a motorcycle accident, but whose body was not discovered until two days later, to make the baby with a donor egg and a surrogate mother in his La Jolla IVF clinic in California, the UK’s Daily Mail reported.
The child’s grandparents, who were not named in the article but were said to be in their 50s, may have broken the law by harvesting and exporting their dead son’s sperm to the US without his consent.
The child was now said to be about three years old and was living with his grandparents in the UK, the Mail said.
Legal experts said the couple and those in the UK involved in harvesting and exporting the sperm could face prosecution for committing a criminal act.
The sperm was reportedly harvested from the dead man, his parents’ only child, by a urologist and frozen. It was then exported to the US with a medical courier firm a year later.
Smotrich told the Mail he had no regrets.
“The English couple lost their son under the most tragic of circumstances. They desperately wanted an heir and a grandchild. It was a privilege to be able to help them,” he said.
The doctor described the grandparents as extremely wealthy “and from a notable family.”
He explained how unusual the case was.
“Producing a child using posthumous sperm is exceedingly rare. I have done it only five times,” he said. “This couple were desperate to find someone who would be able to create an heir. They wanted a boy. What we did is not available in the UK, where gender selection isn’t legal.”
Smotrich told the Mail the grandparents were “very specific” in the “type and caliber” of the egg donor and the surrogate, who were both American. They selected women who they felt was the kind of woman their son would have married, “in terms of physical looks, intellect and education.”
The procedure is thought to have cost a total of £60,000-£100,000 ($77,500-$129,000).
Diane Batzofin, who runs Smotrich’s clinic, told the Mail, “I took the initial call, from the dead man’s mother. This was a marriage of science and soul. The mother told me it’s what her son would have wanted.”
However, former chairman of the British Fertility Society Allan Pacey, warned that it was likely the grandparents and the others involved had committed a crime.
“If the son in this case wasn’t being treated by a clinic, and had not signed the necessary consent forms for the posthumous retrieval, storage and use of his sperm, then a criminal act has probably taken place,” he said. “The clinician who extracted the sperm is in breach of the law as is the facility which stored and exported the sample.”
In a similar case, an Israeli couple have been fighting a legal battle for the past several years to use their dead son’s sperm to have a grandson.
In September 2016 Irit and Asher Shahar won the precedent-setting right to produce and raise a child from their deceased soldier son’s posthumously retrieved sperm, but in January 2017 suffered a legal setback.
The state won its appeal in Lod District Court against a ruling by Petah Tikvah Family Court that allows them to use son Omri’s sperm to fertilize a purchased egg and create an embryo to be carried by a surrogate.
The Shahars’ legal battle has been ongoing since shortly after Omri, a captain in the Israeli Navy on active duty, was killed in a June 2012 car crash at the age of 25. The couple also has two daughters, Lotem, 18, and Inbar, 28, who is married.
Their legal struggle is still ongoing.