By DINA KRAFTExtract from an article in Issue 24, March 16, 2009 of The Jerusalem Report. To subscribe to The Jerusalem Reportclick here.
A non-profit family rights organization is challenging nature and law to create new families - even after death
In a small beige safe in an office in Tel Aviv is
a stack of some 400 envelopes, each containing a biological will, in which men have declared how and by whom they would allow their sperm to be used to bring new life into the world, if they were to die prematurely.
In other words, these documents help pave the way for the dead to have children.
"Science fiction is becoming more real," says Irit Rosenblum, the lawyer who heads New Family, the family rights non-profit organization that has collected these wills and is leading the effort to have these wishes honored.
"Why not tell people they have a solution? It's like an insurance policy - take out sperm and freeze it," she tells The Report. "Why don't we suggest to soldiers that they freeze theirs?" she asks, before pausing to add, "Just in case?"
In January 2007, Rosenblum helped make legal history when a judge in Tel Aviv's family court granted a woman represented by New Family the right to be inseminated with the sperm of a dead soldier. The parents of the soldier, killed by a Palestinian sniper in the Gaza Strip in 2002, had approached Rosenblum and together they found a single woman who wanted to become a mother.
She had never met their son but preferred to have sperm for her hoped-for future child from a known donor. The son's sperm was retrieved after his death according to his parents' request.
For the bereaved parents, the prospect of becoming grandparents was an opportunity to realize what had seemed like an impossible dream. (The single woman, however, has to date not yet conceived with their son's sperm, despite attempts.)
This is the first case in Israel, and probably in the world, in which a woman previously unknown to the deceased - that is, a woman who is neither a wife nor an established partner - won the right to use a deceased man's sperm.
Rosenblum hopes the case might serve as a precedent for others.
The first major development in this area
occurred in 1984 in France, when a widow filed suit against a sperm bank that refused to allow her to use the sperm her husband had deposited before undergoing chemotherapy. A French court ruled in the woman's favor and several similar rulings followed in the United States, the United Kingdom and Israel.
In a high-profile case in England in the mid-1990s, widowed Diane Blood fought for the right to use her dead husband's sperm, which she had convinced doctors to retrieve after he had fallen into a coma. British law forbade the insemination, but Blood eventually won the right under European law to be inseminated abroad and ultimately was able to conceive two children at a clinic in Brussels.
According to Rosenblum, most legal cases filed abroad have centered on the rights of widows to use the sperm of their dead husbands and, in most cases, the sperm had been preserved before death. In Canada, posthumous reproduction is illegal, unless the deceased had given specific consent to use his sperm. Canadian law also states that no "reproductive material" can be removed from the body of the deceased without written consent. The U.K. has similar legislation.
In the Tel Aviv Family Court judge's one-page decision, the reasons for ruling in the woman's favor were not substantially detailed, says Daniel Sperling, an expert in posthumous legal issues, who has a joint lecturing post at Hebrew University's schools of public health and public policy. This will make it difficult to be used as a precedent-setting ruling, he tells The Report.
In so ruling, Sperling notes, the court defied guidelines published by Israel's attorney general in 2003, which specified that only the established partner of the deceased has the right to use his frozen sperm. It also states that parents do not have ownership of the sperm of their deceased sons. The guidelines are considered the state's official stance on the issue but are not legislated as law, so the courts are not legally bound to abide by them.
Judges however, are directed to take them into consideration.
"We are challenging nature and trying to create alternatives," says Rosenblum. "I think one day people will thank me very much. For now, there are those for and against. It's controversial."
Supporters hold that because the fertility technology exists - including the use of sperm removed shortly after a man dies - it was inevitable that this would arise. Furthermore, the argument goes, just as women using sperm from anonymous sperm donors were once considered outside of the societal norm and have gradually gained acceptance, so too will the idea of matching women to the sperm of the deceased also gain acceptance.
Prof. Joseph Schenker, from the Hebrew University's medical school and chairman of the Ethics Committee for the Society of Assisted Reproductive Technology disagrees - especially, he says, if the initiative comes from the bereaved family.
"It should not be done. Never. The parents would like to have this happen but it is not good for the child because this child will not be the child; he will be the dead person for the parents," Schenker tells The Report. "It's not
Sperling says an ethical distinction should be made between cases where sperm is extracted posthumously without prior consent from the deceased and those in which the deceased had preserved sperm before his death for the purpose of posthumous procreation. "One is not allowed to extract sperm from a dead body, unless that person gave explicit permission to do so," he insists.
In Israel, family and children carry strong
societal value and this influences how Israeli courts and the public react to cases where families of the bereaved seek ways for children to be conceived even after a loved one dies, Sperling says.
Extract from an article in Issue 24, March 16, 2009 of The Jerusalem Report. To subscribe to The Jerusalem Reportclick here.
var cont = `Stay Informed
As the war against Hamas unfolds, our unwavering newsroom remains committed to covering Israel's most profound crisis.
Sign up for our newsletter to get real-time news and in-depth analysis from our top reporters.