REPORT: POST-MORTEM SPERM USE IN ISRAEL

By: Irit Rosenblum L.L.G  &   Esti Leavitt-Azulai L.L.M L.L.B &   Frank J. Leavitt, PhD

Note: The general discussion will be followed by three appendices: 1. On the "New Family" organization, which has been a leader in legal changes respecting the family and reproduction; 2. on the role of the Government Legal Advisor in Israel; 3. Some questions with respect to the presumption that every person desires offspring.

Introductory comments: A 25-year old unmarried Israeli naval officer was killed in an automobile accident in June, 2012. After a request from his bereaved parents, hospital staff extracted sperm from his body, and froze it. The officer's parents have asked to receive the sperm to fertilize a woman.  This woman, however, would not raise the child. The officer's parents want to raise the child themselves, along with their two surviving children.  They have not received permission.[1] 

We may make a number of distinctions with respect to post-mortem sperm.  It can be ejaculated and stored by the prospective father before death, or it can be extracted after death.  The prospective father may or may not have left explicit instructions for its use. The prospective father may be single, married, or with an unmarried partner. If there is a wife or partner, she may or may not have expressed a desire with regard to his sperm.  In the absence of explicit instructions, there may or may not be witnesses as to his desire to leave offspring.  The prospective mother may or may not be one of the people who request permission to use the sperm.

Israel is a democratic, pluralistic country.  Religious Law, nonetheless, has a strong influence in matters of birth, marriage, and death. Both Jewish Religious Law (Halacha)[2] and Israeli civil law[3] require evidence that the deceased prospective father wanted his sperm to be used for fertilization.  The best evidence of this desire is, of course, the fact (if such there is) that the deceased while alive gave sperm for storage and he made an explicit request as to its use.[4]

In Israeli civil law, the best possible source of evidence of the deceased prospective father's desires would be his widow.  In the case of a single man, however, evidence from his bereaved parents and family members is also acceptable.[5]

The published reason why the request of the naval officer's parents was not accepted was that no woman who desired to bear and raise the child was among the petitioners.  The fact that the officer's bereaved parents wanted to raise a grandchild as if he or she were their own child was not recognized as adequate.

Published information is scant, but the fact that there was no evidence that the officer wanted his sperm to be extracted and used may have also influenced the decision not to grant his parents their request.

We three discuss various aspects of the question of post-mortem sperm in the following three comments. It must be emphasized that the opinions expressed by each of us do not always express those of the other two.

COMMENT I: THE BIOLOGICAL WILL™, prepared by Adv. Irit Rosenblum

Israeli attorney, Irit Rosenblum, Founder and Head of the "New Family" organization, is devoted to protecting the rights of those whom new technologies and changing social mores have enabled the creation of  new forms of family life. She has devised and has been putting into use a new legal instrument, the "Biological Will", which she describes in the following document.[6]

 Now, children can be conceived after the death of one or even both parents through The Biological Will™, a legal testament that I developed that documents the intended use or disposal of any individual's sperm, ova or embryos in case of death, incapacitation or infertility. It is a solution to the questions of gamete and embryo ownership, donor consent, legal parentage, and inheritance rights of posthumously-conceived children.

The right to procreate, a human right that all people should hold, is the right to bring children into the world regardless of their medical or social ability to conceive, carry a pregnancy, or deliver a baby. The Biological Will Bank™., which I established, is the only entity drafting and storing Biological Wills™. It enables the terminally ill, bereaved families, soldiers, and both widows and widowers to create their genetic legacy.

A central derivative of the human right to reproduce is the right to know your origins. This right is not  always open to  those born of anonymous gamete donations.

The Biological Will™ offers singles and same-sex couples an alternative to anonymous sperm or ova donations, by receiving donations from a known donor to form a family with the donor's kin and give their child a complete genetic record. All stakeholders benefit, including, the individual that fathers or mothers the child, the designated parent who has a child that knows his or her other parent’s identity, and the donor’s family, who continue their bloodline. The child gets a genetic record, a complete family tree, and a known extended family.

Israel has no law on posthumous reproduction. The legal ability to use the sperm of the dead was forged through my 12 year confrontation with the legal system. When I set out to carry out the Biological Will™ in 2002, there was no legal procedure. The Attorney General opposed. The legal debate lasted until today; even though I won all the court cases in which I appeared..

The legal system gradually began to adopt my position that genetic materials are property that can be willed and inherited and can be used to posthumously conceive children if it was the donor’s will. The two more court cases I had the privilege to represent in 2009 and in 2011 made waves in the legal system, until the AG reversed the State’s position in 2013. AG Yehuda Weinstein, for the first time in 12 years of struggle on behalf of parents’ of the deceased, announced that he is willing to accept my position which respects parents' court standing.

I was privileged to litigate numerous groundbreaking cases in Israel, in which the deceased’s parents won the right to carry out their son’s Biological Will™ by choosing a single woman to conceive with their son’s sperm, and raise the child as her own.  The world’s first case of posthumous reproduction with a partner unknown to the donor is Keivan Cohen in Israel. In 2007, Cohen’s parents won the right to designate a woman to conceive with the sperm that was extracted after his death in 2002. In November 2012, a single woman gave birth to his daughter, twelve years after his death. The Cohen case paved the way for a string of legal precedents in Israel. In 2009, a family court approved the verbal Biological Will™ of Idan Snir, and empowered his parents to transfer his sperm to a single woman who wished to raise a child from a known sperm donor.  In 2011, an Israeli court approved a written Biological Will™ in which a young Israeli empowered his parents to choose a single woman who wished to conceive with his sperm. These cases are significant because the Israeli legal system affirmed the young men’s right to father children after death independent of a female partner. In 2009 I appeared in the world’s only case of posthumous maternity.  In 2011, a global precedent was set when the world’s first baby born by Biological Will™ was born to a surrogate mother, who gestated the embryo created by the father and the late mother. In November 2013 the event iconic was the birth of the soldier’s daughter 11 years after his death, leaving his Biological Will.

 COMMENT II: THE ROLE OF THE GOVERNMENT LEGAL ADVISOR.  Prepared by Atty. Esti Leavitt-Azulai.

The Government's Legal Advisor's guidelines for using sperm from a dead personl.

In Israeli law, governmental legal advisors have significant authority. Their opinions can be challenged in court. But they are very often accepted without challenge.

Guidelines of the Government Legal Advisor have the status of "advice". But courts tend to adopt them.

According to guidelines given by the Government Legal Advisor in 2003, the use of semen extracted from a dead person for the purpose of insemination, is restricted to the wife or partner. Parents of the deceased who wish to use such semen for the sake of fertilization must make a special request in court.

The decision must be made on the basis of the subjective desires of the deceased, and according to values of the State of Israel as a Jewish, democratic country.

One must strike a balance between the desires of the deceased and the desires of his wife or partner. The simple case is when the deceased has explicitly expressed his desire before he died, or emitted and stored sperm before his death. The complex cases are those in which we have no explicit consent from the deceased.

When there is no evidence that the deceased had any objections, and when his partner wishes to bear a child from his sperm, it is recommended to allow her to use the sperm.

The basic assumption is that both partners want to give birth. When the deceased's desire is not clear, his "presumed" desire should be examined. It is assumed that a person desires offspring. One may not deny him offspring without first disproving this assumption.

Every case must be judged on its own merits. One may take into consideration evidence from relatives of the deceased. One may consult with a senior social worker or conduct an objective examination.

The deceased's wife or partner's evidence as to his desires is acceptable.

The parents of the deceased have no legal status with respect to the question of the use of the deceased's sperm.  The law recognizes the right to parenthood, but recognizes no right to have grandchildren. The deceased's parents may, however, give evidence as to his desires.

The procedure: Extracting the sperm from the deceased is generally allowed. Afterwards the question of whether or not to use the sperm is raised in court.

In the case of a terminal patient, if it is impossible to obtain the informed consent which the Patient's Rights Law requires, sperm may be extracted on the request of the wife or partner. If there is no wife or partner, a request should be made in court.

 COMMENT III. OPINION BY Dr. F. LEAVITT

The presumption that every person desires offspring may play an important role in deciding whether to use post-mortem sperm. This presumption needs examination. In particular: What is the evidence that every person or even most people desire offspring? What surveys have been conducted to examine this presumption?  Does the assumption that a person desires offspring automatically, and without further examination, entail that he or she desires offspring under all circumstances, including artificial procedures conducted after his or her death?

Many of the discussions of the use of new reproductive technologies put a strong emphasis on changing social mores in recent years.  There is a strong claim that changes in society and social norms have justified (hitzdiku) changes in the attitude of the law towards the family unit. In the first place, what is the evidence of such social changes?  Israel has a large religious and socially conservative population. How many of them have been surveyed?  How many of them are even interested in taking part in surveys?  Secondly, law should reflect ethics.  The statement that social changes justify changes in law implies a changes in ethics are always justifiable. Here we have ethical cultural relativism, the philosophical doctrine that the good is what is accepted in a culture or society.  This would imply that within a society in which atrocities towards minorities are accepted behaviour, such atrocities are ethical.  Of course it would be grossly unfair to compare the social changes which reproductive technology is causing to the atrocities which have, and are taking place in some societies.  But extreme examples can be used to clarify points. This example should make it clear that some boundaries must be put on ethical relativism.

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