Although a number of additional legal questions can be raised, including issues of paternity and inheritance, this paper focuses on the legal issues pertaining to consent, as well as the ethical questions raised above, which need to be discussed in order to address adequately the legal consent issues. The paper is organized as follows: first, the current law of consent to sperm retrieval and insemination after death or PVS is discussed in order to identify gaps in the law - areas that the law does not address or concerning which it is unclear; second, ethical issues are discussed that are relevant to deciding what the law should be; and third, based on the analysis of ethical issues, legal approaches are proposed that attempt to fill the gaps identified. We shall see that the law of consent differs in some respects, depending on whether a patient is alive or dead. because patients in PVS are legally alive, it will be necessary to consider separately cases involving PVS and those involving death. Specifically, Part II examines the current legal status of consent to retrieval and insemination in cases involving patients in PVS. Part III explores the current legal status of consent to retrieve sperm from dead patients. Part IV discusses the current law of consent in regard to artificial insemination using the sperm of dead patients. Part V puts forward and defends views concerning several ethical questions, including the following: Should sperm retrieval and insemination following death or PVS be permitted? Is the man's consent necessary? Part VI sets forth proposed legal approaches to cases involving patients in PVS, and Part VII states proposed legal approaches for cases involving dead patients.
Carson Strong, Consent to Sperm Retrieval and Insemination after Death or Persistent Vegatative State, 14 J.L. & Health 243 (1999-2000)