What Happens to People's Donated Eggs and Sperm After They Die? | Ellen Trachman | TED

Before his death in California in 1991,

a man named William Kane wrote a letter to the children from his first marriage

and to his fiancee, Deborah.

It read,

"I address this to my children because although I have only two of you,

Everett and Katie,

it may be that Deborah decides, as I hope she will,

to have a child by me after my death.

I have been assiduously generating sperm samples for that eventuality.

If she does, then this letter is for my posthumous offspring as well,

with the thought that I have loved you in my dreams,

even though I never got to see you born.”

What happened after William Kane's death

was a lawsuit that would forever change the law.

His ex-wife and adult children argued

that Deborah should not be allowed to use the sperm samples.

They should be destroyed.

And a trial court agreed with them.

But Deborah appealed,

and a California appellate court agreed with her,

finding that William Kane, and all of us,

have the right to use our DNA after our death,

even to have children.

I am sure everyone in this room has let their loved ones know

if they can use their DNA to have a kid after they die, right?

OK, probably not yet.

But what happens if we don't tell anyone?

If we don't write it down?

And what happens when a couple creates embryos together for use down the road,

then divorces

or eggs and sperm are mixed up

or an embryo transferred to the wrong woman?

Because all of these things have happened.

Thanks to advances in technology,

there are more ways to try to have a baby.

But the law has lagged behind.

And because the law hasn't kept up with the technology,

it's hurting people:

Families trying to conceive,

donors and surrogates trying to help them

and the children born into these wild situations.

And one day it could affect you or your loved ones.

I'm an attorney,

probably not surprising by my knowledge of eggs,

sperm and the law.

I started my career in the investment management group

of a large international firm, forming hedge funds.

At parties, when asked what I did for a living,

my answer was generally followed by glances around the room

for someone more interesting to talk to.

But that time I was surrounded by people thinking about having babies.

From my housemates, who were a gay couple,

to my sister and her husband struggling with infertility.

And I learned about assisted reproductive technology law.

I had the chance to read through an egg donation agreement,

and it blew my mind.

So many questions I had never thought of.

What if an egg donor goes through a single retrieval procedure

and has 20 eggs retrieved?

Not a crazy number.

Could those eggs be donated to 20 different families?

Could each of those families have a child genetically related to her?

What about disclosure and future contact?

Would she know the children?

Would the children know each other?

I was fascinated.

Way more interesting than hedge funds.

(Laughter)

But the law in this area will leave your head spinning.

Even the definition of what is an embryo

is inconsistent and contradictory from state to state.

In Louisiana, an embryo is defined as a juridical person.

What's that?

Even the lawyers aren't really sure what a juridical person is.

But we do know that it means that embryos,

stored in tanks at -321 degrees Fahrenheit,

have the right to sue people.

(Laughter)

And don't think they won't do it.

(Laughter)

Last year, celebrity actress Sofia Vergara of "Modern Family" fame

and my favorite, "Smurfs," was sued by her embryos.

She had gone through fertility treatment with her ex-fiancé, Nick Loeb,

when they were a couple.

They had two remaining embryos from their IVF process

stored in a clinic in Los Angeles.

The consent forms they signed were clear:

neither could use the embryos without the other’s consent.

At this point, Vergara had moved on,

married the actor from "Magic Mike," Joe Manganiello.

She did not want those embryos being used.

Loeb, on the other hand,

was doing everything in his power to win rights to the embryos.

After losing in California court,

he formed a trust for the embryos in Louisiana.

He even named the embryos Emma and Isabella,

and had them file a lawsuit against Vergara,

demanding that they be brought to birth.

(Audience murmurs)

Ultimately, the lawsuit was dismissed for lack of jurisdiction,

meaning Louisiana wasn't the right place to hear the case.

The embryos were in Los Angeles, California.

Neither Loeb nor Vergara lived in Louisiana.

But given Louisiana's definition of embryos as people,

it would have been fascinating, and concerning,

if the court had been able to rule on the case.

Of course, these were celebrities.

So we got to read about their case in the news.

But it could happen to anyone who's gone through IVF.

By contrast to the idea that embryos are people,

other laws and judges treat embryos as property.

In Texas, a probate judge was forced to determine

the legal properties of 11 embryos when a couple was murdered,

leaving behind their embryos and their two-year-old son.

The judge determined that embryos have value

and therefore were property

and should go to the couple's heir,

the two-year-old,

to determine what to do with them when he turned 18.

That's a heavy responsibility for an 18-year-old.

Does he transfer them to a surrogate and raise his genetic siblings?

Does he donate them to others?

Does he forget about them entirely?

Not likely that his parents were thinking about these questions

when they formed those embryos.

Aside from struggling for the definitions of eggs,

sperm, embryos and who can use them,

the law especially struggles when there are mix-ups in the lab.

In 2018,

a woman in New York, pregnant with twins,

was surprised at her ultrasound appointment

when her obstetrician congratulated her on having two boys.

You see, she had gone through IVF in California

and there, her embryos had been tested

and shown to be two female embryos.

She called the clinic, but they said,

"Don't worry about it, ultrasounds are frequently inaccurate.

You're having two girls."

But she gave birth to two boys.

And they didn't look like her or her husband.

They did genetic testing.

She was not genetically related, nor was her husband.

In fact, the twins weren't even related to each other.

(Audience gasps and laughs)

Across the country,

a woman in California got a call from her fertility clinic.

It had been about nine months

since she'd gone through a failed embryo transfer.

She thought she was being asked to come in for routine testing,

but was met with a roomful of doctors, lawyers,

mental health professionals that told her there'd been a mistake.

Her embryo had been transferred to another patient,

and her genetic son had been born in New York.

One of the twins.

A judge in New York determined that the birth parents

were not the legal parents to the children.

Instead,

the woman in California and her husband were legal parents to one of the twins,

and another couple entirely were legal parents to the other twin

because they were the genetic parents.

But a similar thing happened in Italy with the exact opposite result.

There, two embryos were transferred to the wrong patient

and a judge determined

that the birth parents were the legal parents to the children

and the genetic parents had no legal rights at all

to their own genetic children.

It's time for the law to change.

Here in Colorado,

our lone egg and sperm donation statute has the language

"a wife with her husband's consent."

(Laughter)

It's a little offensive to us liberated women,

but also doesn't include single parents by choice

or LGBTQ parents.

It also doesn't include those who donate their embryos

or those who receive embryos to have a child.

What can we do besides advocating for better laws?

We can think carefully about our own reproductive material.

Every adult knows that they should have a will,

even if they haven't done it yet.

A will lets those we leave behind know what to do with our assets

and our possessions.

But most wills don't include an invaluable asset,

our reproductive material.

And that leaves loved ones confused and facing inconsistent laws.

For instance, in 2019,

a West Point cadet named Peter Zhu was in a tragic ski accident.

His family begged the hospital and then a judge

to let them retrieve his sperm.

They explained to the judge

that their son had always wanted to have children,

and moreover, it was of vital cultural importance to them

to continue their family line.

The judge was persuaded.

He issued the order to allow the son's sperm to be retrieved

and later used for conception purposes.

But here in Colorado, the law is not the same.

In the last few years,

at least twice it's happened

where a man was taken to the hospital before his death

and the request by a spouse to have his sperm retrieved was denied

because he didn't have a consent on file with the hospital.

But in another case where a man died suddenly

and was taken to the coroner,

his spouse's request to have his sperm retrieved was granted

because the coroner is not subject to the same policies and procedures

as a hospital.

So if you think you might allow someone

to have a child with your DNA after your death,

or you don't want them to,

tell them.

Write it down, grab a napkin, put it on a napkin, send a text.

No matter how strange that text may look.

(Laughter)

It happens more often than you think.

We think more carefully about organ donation,

but this is just as important.

I bet you didn't think you need to include this in your will.

The world has changed.

The technology is here, and it will only keep advancing.

And this isn't the only area where technology is outpacing the law.

We need to challenge ourselves to think carefully

about what these innovations mean to ourselves,

to our families, to our children

and to future children,

whether they're genetically related to us or not.

Thank you.

(Applause)