Two tragic cases have been at the forefront of the Israeli public discussion of posthumous fertilization in recent months. Both involved soldiers who died childless during their military service.
Death, and especially that of young persons, naturally arouses strong emotions which influence the discussion of posthumous fertilization. In the Israeli context, however, when such a process involves dead soldiers, the entire discussion is much more charged and complicated. The desire of the family (especially the soldier’s parents) to act in the name of their son, to bring some relief to their mourning, and to provide continuity for the deceased soldier is very intense, and public support for and solidarity with these bereaved families is extremely high.
Shaked Meiri was a reserve soldier who died during a military exercise when he was 27 (September 2004). Meiri wed only three months prior to his death and was childless, which made his death that much more tragic. His sperm was extracted and frozen with the agreement of his widow and the active support of his parents. But she later objected, remarried, and had her own children from the new relationship. His parents requested to use his sperm to impregnate another woman, and their request was approved by the family court. The widow’s appeal to the district court was rejected, and the case came before the Supreme Court (Family Appeal Request 7141/15).
In December 2016 the court issued its decision.
According to the court, there is indeed an existing right to procreate that applies also to posthumous fertilization, but with a significant limitation, according to which the spouse of the deceased – and only the spouse – is entitled to decide on implementation.
Omri Shahar was a promising 25-year-old career officer when he died in a tragic road accident (June 2012). His parents appealed to a family court to permit them to have a child from his sperm using an egg donation with a surrogate mother and to raise the child as their own. The family court approved their request in September 2016 (Family Court File 16699-06-13). In February 2017, however, following the Supreme Court’s decision in the Meiri case, the District Court reversed this decision (Family Appeal 45930-11-16).
The court reasoned that, following the decision in the Meiri case, the right to procreate is reserved exclusively for the spouse. Omri Shahar had a permanent partner, who supported the process but did not want to be an active participant. The District Court consequently reasoned that, despite her support, the process could not be initiated by the parents. Very recently, the decision was approved by the Supreme Court (Family Appeal Request 1943/17, August 15, 2017).
But this is not the final word on this issue. Proposed legislation was submitted to the Knesset in June 2017.
Knesset members from across the political spectrum support entitling the parents of deceased soldiers to use their son’s sperm. The explanation appended to the proposed legislation provides the rationale behind the proposal, which touches upon the very conceptualization of posthumous fertilization. I would like to explore this argument.
The Supreme Court decision in Shaked Meiri’s case focused on will – that of the deceased person. Providing his widow with the right to decide was described as a means for revealing his presumed will. His parents’ request and the proposed legislation, on the other hand, focused on different kinds of argument: continuity, and society’s collective responsibility to the soldier and his family. This is emphasized in the explanation of the proposed legislation: “The State of Israel owes a moral obligation to the bereaved families who have lost what is most precious to them [...] The responsibility of the State that sends its sons to defend its security [...] must be expressed also in affording the possibility of making use of advanced technologies that will enable the bereaved families to have offspring from the deceased and to maintain [the dead soldier’s] continuity.”
These two sources – the court and the proposal – reflect accordingly different kinds of argumentations, or two types of conceptualizations of the right to posthumous fertilization.
The first focuses on the will of the deceased, that is, an individualistic right to reproduce posthumously.
The second focuses on family continuity and feelings of a shared responsibility, that is a familial, or, in a wider definition, a communal right to reproduce posthumously.
Astonishingly, the tension between individualistic and familial conceptualization appears in the ancient biblical predecessor of the modern posthumous fertilization debate. According to biblical law, if a married man dies childless his wife should marry his brother in a levirate marriage. If they do not conduct levirate marriage, they should perform the ritual act of halitzah, and thereby unbind the tie between the widow and her brother-in-law. Today, most Jewish communities do not practice levirate marriage, but rather engage in halitzah. The rationale of levirate marriage law, however, is still relevant – and not surprisingly, is the very rationale of posthumous fertilization.
The biblical commandment states: “If brothers dwell together, and one of them dies and has no son, the wife of the dead shall not be married outside the family to a stranger; her husband’s brother shall... take her as a wife... And the first son whom she bears shall succeed to the name of his brother who is dead, that his name may not be blotted out of Israel” (Deuteronomy 25:5-6, RSV translation).
The object of the levirate marriage is to “succeed to the name of his brother who is dead.” But what does this mean? One possible, literal interpretation is that the firstborn would be named after the deceased. Alternatively, to “succeed to the name of his brother” might be a form of continuation for the deceased. In a wider biblical context, that would mean to inherit the land of the dead brother (which is provided here, according to the Talmudic interpretation, to the brother-in-law; see Babylonian Talmud, Yevamot 24a), as in the case of the daughters of Zelophehad son of Hepher who asked to inherit their father (who died without a son): “Why should the name of our father be taken away from his family because he had no son? Give to us a possession among our father’s brethren” (Numbers 27:4, RSV).
These two options (the textual and the contextual) are discussed by classic, post-Talmudic commentators.
Among them, interesting is Rabbi Joseph Kara (France, tenth and eleventh centuries) who testifies to a custom of Ashkenazi communities that, in practice, adopts the two options together: “The Jews in Mainz and Worms practiced that... [they fulfill the obligation by] the actual giving of [the deceased’s] name [to the child], and also by inheritance [of the deceased by his brother]” (Deuteronomy 25:6, s.v. “Vehayah”).
This interpretive dilemma is significant for understanding the purpose of the laws of levirate marriage.
There are two interpretive options of the biblical text, that fulfill two different objects: personal and familial.
Needless to say, the two objects are close to the two different concepts of posthumous procreation, which we have just seen.
Indeed, in ancient times posthumous sperm retrieval was impossible, but its object – either individualistic or familial – could be achieved via levirate marriage. It is not surprising, due to this equivalence (which provides at least inspiration for modern discussion), and due to the general openness of Jewish law to assisted reproduction, that modern Jewish law decisors are quite open to posthumous fertilization as an individualistic right, as a form of family continuation, or both.
Taking this discussion to the modern debate, the familial right ought to be recognized and accepted.
Whether to provide the deceased’s parents with this right is a question of boundaries and limits. In this author’s opinion – the answer should be positive.The author is an associate professor in the Ramat Gan College of Law and Business, a Research Fellow at the Kogod Research Center for Contemporary Jewish Thought of the Shalom Hartman Institute and Visiting Scholar at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics of Harvard Law School.
This essay is based on Avishalom Westreich, Assisted Reproduction In Israel: Law, Religion, And Culture (Brill Research Perspectives, forthcoming, 2018).