The prospect of head transplantation raises numerous ethical and legal challenges many of which I discussed in my previous post. Any procedure whose description begins with, “First we cut off living person A’s head,” leads immediately to horror at how we could countenance such a procedure to begin with, and the consequences for the newly formed person’s identity. But in this blog post I would like to explore a particularly troubling aspect of head transplantation: subsequent reproduction. Examination of this question ties directly to the parallel, and more realistic, question of gonadal transplantation.

When an entire body minus the head is transplanted, all human organs and tissues below the neck are transplanted. Society and the law have already addressed some of these transfers from the neck down on an organ-by-organ level.[1] Kidneys, hearts, and lungs are regularly transplanted, as are bone marrow, skin, and some intestinal organs. Hand, face, and uterine transplants are infrequent, but part of medical practice. The novel feature with head transplantation is the number of body parts, not kind. Many organs will be transplanted at one time, but many transfers of that ‘type’ have occurred before.

This is not true with gonadal transplantation. Most of the research, procedures and ethical debate on ovarian and testicular tissue transplantation have centered on autograft procedures, where the donor’s own tissue is preserved and then transplanted back into the donor at a later date (usually after undergoing a fertility-damaging medical treatment).[2] A very limited number of allograft ovarian transplants have occurred in humans and they all seem to involve identical twins or, in a few cases, siblings.[3] Research in allograft testicular transplantation occurred in some rather grisly studies in the early 19th century and there was some interest through the 1970s,[4] but contemporary research is restricted to animal models.[5] In sum, gonadal allograft procedures are experimental and regulations have not been adapted in response to the procedure.

Despite the novel nature of gonadal transplantation, the use of donor gametes has an extensive medical and regulatory history. The first case of donor sperm facilitated by a doctor was published in 1868,[6] and the reproductive use of ex vivo oocytes was proven with the birth of Louise Brown in 1978.[7] Perhaps gonadal transplantation should be approached as equivalent to gamete donation. The reproductive consequences are certainly the same. Yet there are also distinctive issues of gonadal transplantation that we should at minimum consider. Crucially, some of these issues, even with donor gametes,       are not fully thought through or regulated.

The biggest issue is consent. With body donation there is not just the consent to the body transplant, but more specifically consent of the body donor to become a genetic parent. More tangibly, we also need to consider consent requirements for postmortem gonadal donation independent from body donation.

To date all existing gonadal transplants have occurred with living consenting donors.[8] Neither the UAGA nor National Organ Transplantation Act (NOTA) addresses reproductive tissue transplantation.[9] The parallel of postmortem gamete donation provides little guidance. American law is undecided on whether the posthumous use of gametes, such as sperm, should require special consent from the donor. Posthumous sperm retrieval is barely regulated and hospital policies vary greatly. For instance, guidelines from the American Society for Reproductive Medicine permit posthumous sperm retrieval solely based on the consent, and wishes, of a surviving spouse or life partner.[10] To date posthumous gamete use has centered on a version of autologous use, namely use by the spouse or life partner of the dead person, or in rare cases his (because of the much greater ease of posthumous sperm retrieval, almost always “his”) parents.[11]

The availability of donor eggs and sperm has meant that there would be little reason for nonrelatives to seek out deceased donor gametes, and hospitals or families are unlikely to permit such a request. Gonadal transplantation would accomplish other health functions aside from reproduction, notably hormonal benefits.[12] The success of hormone replacement therapy may mean that other health benefits are insufficient to motivate transplantation. Yet, reproduction could be a deciding factor if, particularly for a woman, transplantation allows her to bypass purchasing donor eggs, complicated IVF regimes, and artificial hormones to maintain a pregnancy. There is even an argument for cost savings for the patient — donor eggs are commercial objects and are very rarely covered by insurance, whereas a transplant would likely be covered and would provide ‘free’ eggs! All of these are reasons why we should develop specific consent parameters for the living or posthumous transplantation of gonadal tissue should we see this technology develop, in whole body transplants or on its own.

Second, it is also unclear how we should ascribe parenthood. Under the Uniform Parentage Act (UPA)[13] if a body or gonadal donor had explicitly consented, the child was born within 45 months of death, and a court held that artificial reproduction occurred (which is not difficult to argue, but could be debated), it is possible that the dead donor could be listed as a parent. Otherwise, the law would most likely treat him or her as a gamete donor. The recipient would be listed as a parent, like any other individual who utilizes donor gametes. There is no box to check or line to complete on a birth certificate if donor gametes are used. The certificate records legal, not genetic, parenthood. This example highlights a much larger societal question about whether official records should record and track both genetic and legal parenthood. To complicate matters further, gonadal transplant recipients could technically argue that for the purposes of the UPA, they are the genetic parent. The Act recognizes that for the purposes of genetic testing “blood, buccal cells, bone, hair, or other body tissue or fluid”[14] may be used to establish parenthood. Depending on which part of the body the cells come from, the DNA tested could genetically match the child. My guess is this type of argument will not succeed, but it could arise.

Linked to parentage there is also the question of inheritance and benefits. It would be extremely difficult and impractical for children to be eligible to inherit through intestacy from the donor. The body or gonadal donor would need to be listed as a parent, and not simply a donor. But even if this occurred, most states’ intestacy rules do not recognize benefits or claims of children born from the posthumous use of gametes.[15]   Further, the Supreme Court in Astrue v. Capato[16] held that Social Security benefits follow state intestacy rules. Inheritance and benefits are much more likely to derive from the recipient if listed as the legal parent.

Ultimately with reproduction, my guess is that legal parenthood for the body or gonadal recipient will be adopted. That said, perhaps the consent and parenthood concerns of gonadal transplantation are too high? Should we sterilize all body donors? Or prohibit allograft gonadal transplantation? I’m not sure exactly how states will choose to regulate these, but it is clear that reproductive issues are substantively different enough from gamete donation that they will require particular regulatory consideration.

[1] I’d argue that face transplants are still controversial, but are becoming increasingly accepted. It is worth noting that heart transplants were particularly controversial as well compared to, say, kidney transplants.

[2] I have previously written on the need to regulate the harvesting and storage of minors’ reproductive tissue for future re-implantation. (http://www.tandfonline.com/doi/full/10.1080/15265161.2012.760681).

[3] There are at least eleven recorded cases of identical twin ovarian transplants. (http://www.nejm.org/doi/full/10.1056/NEJMc066574) Given that they were between identical twins, the procedures did not involve the immune rejection concerns of allograft transplantations. They do raise some consent concerns around reproduction, although this is less complicated because they have identical genomes.   There is a small subset of cases involving non-identical siblings. (See https://www.newscientist.com/article/dn12398-ovary-transplant-produces-embryo-in-sister/). Research in animals, most recently in a 2018 study on baboons, is ongoing. (https://www.ncbi.nlm.nih.gov/pubmed/29128910).

[4] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4857897/.

[5] http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0177067. This makes sense given the long history of relatively low cost and technical ease of cryogenically preserving sperm.

[6] https://academic.oup.com/humrep/article/21/7/1645/2938540.

[7] Id.

[8] There are separate consent issues as to permitting a living donor to undergo the risk and harm of the surgery for the non-live saving benefit of a third party.

[9] http://www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006)and National Organ Transplant Act of 1984 42 U.S.C.A. §274e.

[10] Ethics Committee of the American Society for Reproductive Medicine, Posthumous collection and use of reproductive tissue: a committee opinion, Fertility and Sterility (2013) http://www.asrm.org/globalassets/asrm/asrm-content/news-and-publications/ethics-committee-opinions/posthumous_collection_and_use_of_reproductive_tissue-pdfmembers.pdf.

[11] The United Kingdom’s HFEA’s regulations forbid the postmortem harvesting and later use of gametes. See R. v HFEA ex parte Blood [1997] 2 All. ER 687 (an exceptional case). The Israeli Supreme Court in 2017 held that a spouse, but not a parent, may harvest and utilize sperm for postmortem reproduction. (http://www.jpost.com/Israel-News/The-debate-over-postmortem-sperm-retrieval-of-fallen-soldiers-514994). For an earlier discussion of the Israeli experience with parents and postmortem sperm retrieval see Shelly Sarig and Nili Tabak An Unusual Petition for Posthumous Sperm Retrieval – What Does It add to the Debate, 27 Med. &L. 463 (2008).

[12] 19th and 20th century work on gonadal transplantation focused on health or enhancement type benefits of testicular transplants (notably both animal and human cadaveric). See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4857897/.

[13] http://www.uniformlaws.org/shared/docs/parentage/UPA2017_Final_2017sep22.pdf

[14] Id.

[15] MacNeil V. Berryhill 869 F. 3d 109 (2017), In re Certified QuQuestion from the U.S. Dist. Court of Western Michigan 493 Mich. 70 (2012). New Jersey seems to be an outlier is that the Supreme Court did recognize intestacy rights in In re Estate of Kolacy. 332 N.J. Super. 593 (2000).

[16] 132 S. Ct. 2021 (2012).