Where there’s a will, there’s a way

After court allows biological will of man who requested his frozen sperm could be used to conceive child after his death, experts say inheritance laws fall far behind technology.

By RON FRIEDMAN
April 20, 2011 02:56
4 minute read.
DOCTORS AT Kaplan Hospital

DOCTORS AT Kaplan Hospital 311. (photo credit: Courtesy)

 
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In a recent landmark decision, an Israeli court authorized the biological will of a man who requested that the sperm he had frozen and stored at the sperm bank be used to conceive a child after his death. But according to father and son lawyers Ya’acov and Samuel Katz, the legal system as a whole is at a loss over how to deal with technological advancements, especially when it comes to inheritance and wills.

In a recent study conducted at the Kiryat Ono Academic College, Samuel Katz argued that “the incompatibility of the existing law causes severe miscarriage of justice.”

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As an example, he cited inheritance by the biological offspring of a deceased person.

According to Katz, the existing inheritance law allows a person to inherit the property of another provided they were born within 300 days of the death of their benefactor. This, said Katz, may have been adequate in the past; but today, with the advent of sperm banks, in which the deceased’s sperm may be kept for a virtually unlimited period, the 300- day restriction makes little sense.

“There is no doubt that the future heir, who will have been born more than 300 days after the death of the father, is his direct descendent.

Moreover, the very fact that the sperm was donated and deposited in the sperm bank indicates the inheritor’s will that the unborn offspring be his heir. But according to the law in place today, even if the deceased left a will specifically mentioning the yet-tobe- born child as an heir, the will is not valid,” wrote Katz. He added that the same would be true in the case of genetic cloning.

Another scenario that creates problems for the existing law is the case of surrogate mothers.

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Katz said that despite the increasing use of surrogacy, the law doesn’t know how to deal with inheritance when it comes to these cases.

“In traditional surrogacy, the child is the result of in-vitro fertilizations of the surrogate’s egg – thus her direct biological offspring. Is the offspring of such a union the heir of his biological mother, or of his intended parents?” Katz asked.

There are other technological developments that have nothing to do with medical questions but impact inheritance laws: for example, the validity of video wills. Katz explained that despite the advancement of video recording equipment and the fact that such wills have become nearly ubiquitous, a video recording of a person’s will still does not, by itself, constitute a valid will.

Similar questions arise when dealing with wills left on Internet or cellular platforms.

“A person can, for example, post a message on Facebook, declaring it to be his will. Does this announcement – made openly and publicly, read by friends and family members from the real world and requiring access by a password known only to him – constitute a valid will?” he asked.

According to Katz’s father, Haim Katz, the law recognizes as a valid will anything that features the inheritor’s name and the date it was signed. He said that in his years of practice as an inheritance lawyer, he has come across many bizarre wills – one written on an old car tire found by the side of the road – that were accepted as valid.

“This wide interpretation raises the possibility of people leaving a will in an e-mail, a social networking post, a chat room message or even a text message,” Samuel Katz wrote in his paper.

Advanced DNA testing for paternity also raises problems for the existing law. According to the existing law, an adopted child may inherit from his biological parents if he is able to identify them. Katz argues that with the development and accessibility of DNA-based paternity tests, such a scenario becomes far more likely.

Haim Katz said that while Israeli law already had a solution to most of the issues posed by his son, their passing into law was being held up in the Knesset.

“The Law Committee has already debated many of these issues and found legal solutions to them, but it has failed to implement them into the law books, mostly because of political difficulties,” he said.

“For some reason, the committee convened to reform the inheritance law has completed most of its work, but we have yet to see results in the field, because the Knesset has yet to pass it into law. The same goes for the private member’s bills that have been submitted to the Knesset, and which have lain on the Knesset’s table, untouched, for seven, eight and even 10 years,” he said.

According to him, the difficulties are posed by the haredi parties, who fear that some of the changes to the law would mean its recognition of relations between homosexual couples.

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