Adv. Yonathan Kanir and Adv. Millie Indig || 1.3.18

The right to use the semen of a deceased person is an issue that has not yet been addressed in legislation, even though technology and science already facilitate such use and are advancing in leaps and bounds. Attorneys Jonathan Kanir and Millie Indig believe that the legislator must intervene soon in order to create greater certainty and reduce disputes on the subject like those which have arisen in the past.

The right to use the semen of a deceased person is an issue which has yet to be addressed in legislation. Some argue that every person may be presumed to want continuity by way of having offspring after his death, but is it not correct to say that the default option, the presumption, is in fact the opposite, that no person wants children which he shall not merit to raise by himself? This is an issue that raises many difficulties which the current generation is contending with, as a result of various developments in the medical sciences and genetics.

The institution of the family, according to the approach of Jewish law, combines two objectives that give it its status as a value in itself and place it high up on the scale of Judaic values. The first objective, is a social one, to prevent loneliness, as the well-known saying goes "it is not good for a man to be alone." The second objective is to maintain through fertilization and reproduction the continuity that is the purpose of human creation. From the right to a family derives the right to parenthood on the one hand and the right of the child to be raised by his parents on the other.

 Usually, a person's most valuable asset is the mental bond which he has with his natural parents, who regard him as the fruit of their own love and flesh and the next generation to carry on their bloodline. 

The right to parenthood is perceived as a freedom which no government has the authority to undermine, yet at the same time it is also perceived as a right which the authorities have no obligation to actively facilitate or enable the individual to realize. 

While the right of human beings to establish a family unit as they wish, to live with one another, and to manage a common household, should rightly be protected, it seems that this protection does not sweepingly apply as well to having children by unnatural means, such as through in vitro fertilization, and each case must be examined according to the circumstances. And a fortiori, in cases where someone could have had children naturally or could have expressly conveyed his wishes but failed to do so. If we have seen fit to expressly stipulate in the provisions of the law that protection of a child whose rights are being violated by his family warrants state intervention in the autonomy of the family unit and his removal from the home, then such intervention is even more justified when on the agenda is the potentially complex issue of the birth or prevention of birth of a fatherless child.

Petah Tikva Family Court (in Family Case 31344-09-13 Plonit v. Central District Attorney's Office) was called upon to adjudicate a case in which the parents of a man who fell during active reserve service requested to use his frozen sperm for fertilization with a woman who was not the deceased's widow. In this case the deceased's widow vehemently objected to any involvement on the part of his parents, chose not to conceive from the sperm which had been frozen with her consent, and objected to fertilization through another foreign woman. 

In accordance with the instructions of the Attorney General, the Court held a hearing regarding the estimated wishes of the deceased, and was satisfied that in this case it was actually the deceased's parents who faithfully represented their son's wishes and acted as his proxy. To this finding was added a further and important consideration, which is welfare of the child who would be born in the future: "The verdict in the claim which is the subject of this judgment, must take into account, as a first and foremost consideration, the welfare of the child who may be born as a result of these proceedings." And it was further written in the judgment that "planned orphanhood is not the ideal situation to be born into. However, whatever difficulties are encountered during the life of the person who may be born, the solution to this is treatment and support and not prevention of procreation."

The result of this judgment, which was upheld by the District Court, raised many difficulties and extremely complex questions: Who shall raise the child? What relationship shall there be between the surrogate mother and the grandparents? What shall be the personal status of the surrogate? What reasons can lead a woman to undergo such a pregnancy from the sperm of a deceased person? What are the psychological consequences of raising a child who has never had a father and may not even have a mother but only grandparents? What is the status of the grandparents (given that the child was not alive when his sperm-giving father died)? And what weight should be given to the mental anguish suffered by a widow when they give the sperm of her deceased loved one to another woman who shall raise his child? 

There is no doubt that questions of this kind would never have arisen at all had it not been for the technological developments of recent decades. This is due to the possibility of extracting sperm from the body of the deceased and bringing children into the world after his death through the fertilization with that sperm of a woman whom he may not have known at all during his lifetime. However, not every case in which a particular action has been made possible by a specific technological breakthrough, shall spontaneously give rise to a legal right.