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Fathering a Child After Death: Kosher in Israel

By Debra Nussbaum Cohen

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A family court in Israel has issued a decision that the sperm of a long-dead man may be used to inseminate a woman, who apparently never even met the father of her potential future baby.

According to this article in Yediot Achronot:

The sperm in question belonged to a 22-year-old soldier who died of cancer several years ago. About eight months after that, the woman contacted his parents and asked to use the sperm. They obliged.

The young man had apparently banked his sperm before treatment for the cancer, which these days is not uncommon.

The article continues:

The [Israel] Attorney General’s Office, which signs off on surrogacy agreements, denied the unprecedented request, saying the parents and a woman who was not the deceased spouse, have no legal standing in the matter.

Such an arrangement, said the AG’s office, could only be stuck between a married man, or one living with a partner, and only if he expressed explicit wishes to father children. The parents, added the brief, have no legal standing in whether their son fathers children, be him [sic] alive or dead.

The woman sought the legal counsel of Attorney Irit Rosenblum, head of the New Family organization, and filed suit against the Health Ministry and the Rambam Medical Center in Haifa, both of which claimed she had no right to the sperm, “Since the deceased had never met her.”

For reasons of religion and history, Israel is a strongly pro-natalist country. National Health Insurance, which every Israeli citizen must have, covers all fertility treatments, including In Vitro Fertilization for all women, including single women and lesbians, and the costs of embryo transfers, for instance.

But is using sperm from a long-dead young man taking it too far, especially since the woman who wants to be impregnated with it was not only not his wife, but apparently a stranger?

The Yediot article leaves several fundamental questions unanswered. What is the relationship between the woman who wants to become pregnant with the dead man’s sperm and his parents, for instance? Why does she want this particular man’s genetic material?

The Yediot article quotes a judge saying that there is no Israeli law covering this issue:

Justice Esperanza Alon ruled in favor of the woman, citing the subject of insemination via a deceased’s sperm is not regulated.

As technology improves, there are an increasing number of cases of such efforts to use sperm after a man’s death.

In some cases it’s banked before cancer treatments. In others, removed shortly after his passing.

This article gives a brief history of the practice of removing sperm from men who have recently died or are in a persistent vegetative state.

Whether or not it should be done, and who may use the sperm later, varies from country to country, and in many seems to be getting decided through case law rather than statute. It is an issue at the cutting edge of reproductive technology and in this, as in many issues, the law trails behind the technology.

In October, in France a court denied a woman’s request to be inseminated with the sperm of her husband, who had died of cancer three months after they married. The pivotal issue, according to this Agence France-Presse article seems to be the husband’s inability to give his consent.

It seems clear to me that, if the husband banked his sperm before he died, then his intention was to allow his wife to use it. But is the right to a dead man’s sperm limited only to his wife?

Last Spring a Texas woman petitioned a Texas county judge to allow her to have sperm removed from the body of her 20-year-old son, who had been killed in a bar fight. You can read the article from an Austin newspaper here.

In the Austin paper’s piece, the mother is quoted saying “I want him to live on. I want to keep a piece of him.”

I’m not sure what an Israeli court, or a court of Jewish law (a beit din) would have to say about that, but I say: Ewww.


Permalink | | Share | Email | Print | Filed under: Reproductive Rights, Israel

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Comments
Joe Wed. Dec 9, 2009

Why not ask a Beth Din about such a case. It would be quite interesting. I had a look through Lord Jakobovits's classic Jewish Medical Ethics, but can't see any starting point for a comparison. My own feeling is that the Beth Din would object on the grounds that she has no right to his sperm as she is not only not his wife, but he never even knew her. On the other hand perhaps his parents have a right to have grandchildren and he would not want to deprive them.

Howell Sun. Dec 13, 2009

On the other hand, the need to procreate is a pillar of Judaism. In the story of Lot and his daughters, when they believe that they are the only people left on Earth, the daughters get pregnant via their father. As in most Jewish history, there are two sides to the story.

Also, I believe that if a man dies and he has no wife or children, then his parents have a right to his estate. If we assume that this includes the disposition of his mortal remains, then his mother has the right to have his sperm used to help continue the family line. To use the body parts of a deceased person to further human life is generally acceptable. So, why not use use his sperm? However, this leaves open the question of using the nucleus of his cells for cloning. Hmmm, this is really a question for a Bet Din.




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