As a Florida surrogacy attorney, I have received inquiries on occasion regarding whether sperm can be removed from a person when they are about to die for use by another family member. For example, if a man gets into a car accident and is on life support, whether his sperm can be retrieved and frozen for use by someone else in the future.
As discussed in my blog post regarding using frozen embryos where the egg or sperm is from a deceased potential parent pursuant to Florida law, in order for a child conceived after one of the genetic parents is deceased to be treated as in heir of the deceased parent, the deceased parent had to specifically contemplate such child in their will or else the future child will not inherit as an heir from the genetic deceased parent.
Florida Statute 742.17 provides that in the event of death, the eggs or sperm remain under the control of the contributor and the pre-embryos are subject to joint control. Language may also be added to a Power of Attorney to provide a partner with specific authority to make decisions regarding the storage and transfer of the genetic material and to initiate, consent to, and pay for ART procedures during any period of incapacity
In Florida, in order for a doctor to retrieve and freeze sperm from a man who is about to die, the doctor must have a legal directive from the man whose sperm is to be retrieved, either in a will or other legal directive, that his sperm can be retrieved and a disposition as to how the sperm can be utilized.
It is important for anyone contemplating having children that they should have the proper estate plan in place to ensure that the children are protected should something happen to one or both of the parents. With advancements in reproductive technology, it is also important to consider whether parties want to include provisions relating to the future retrieval of genetic material, the use of such frozen genetic material, and whether children conceived after a genetic parent is deceased can inherit and receive benefits, such as social security, from such parent.