I Want To Put A Baby In You: Say Yes To The … Use Of A Deceased Son’s Sperm

In a landmark decision last month, an Israeli court ruled in favor of a couple who wanted to use sperm from their deceased son to conceive a child that they would raise.  The parents are now looking to anonymous donor eggs and a surrogate to carry the child.

Irit and Asher Shahar were devastated when they received the news that their son Omri, 25 years old, had died in a car accident. But amidst the grieving process, Irit requested that sperm be retrieved from her son’s body. Asher promptly appeared before a judge to ask for a court order to authorize the extraction. The judge agreed, so the sperm retrieval was authorized by the court, and then performed by a doctor. But the legal battle for the Shahars had just begun.

“Planned Orphanhood.”

 The Shahars needed further court approval to move forward with obtaining donor eggs, having embryos formed from their son’s sperm, and then using a surrogate to carry the child. The Shahars were met with opposition by the government, which argued that conceiving a child under such conditions was unethical, and would subject the child to “planned orphanhood.” The child would be born with a deceased father and anonymous mother. The state representative also argued that the child would have too much pressure placed on its shoulders, since it would be a “living monument” to his or her dead father and “would risk not fulfilling the expectations of him and engender negative feelings in his parents.”

Despite these concerns, the judge ruled in the Shahars’ favor, reportedly stating that “[e]very day this court sees biological parents who are unable to raise their children and cannot fulfill their parental responsibilities.  It cannot therefore but see the positivity and determination of the petitioners to raise Omri’s child with love, responsibility and an educational and supportive environment.”

An Unprecedented Ruling.

 In 2003, the Israeli Attorney General issued a position statement in that courts could legally approve the use of a deceased person’s sperm if the request is from the deceased’s partner. The statement further argued that weight should be given to the deceased’s desire to have a child. Here, Omri had a girlfriend of three years at the time of his death, but they had not made plans for raising children. But the girlfriend — who supported the Shahars’ petition — was not interested in using Omri’s sperm to conceive a child herself.

After 2003, the Attorney General’s position was significantly expanded by the courts to include the donation of sperm retrieved from the deceased. In 2007, Irit Rosenblum, a prominent Israeli attorney whom I have previously written about (including trying to convince everyone to watch my favorite YouTube video!), successfully argued for a deceased soldier to be able to donate his sperm.

Rosenblum has noted that she has represented about 20 families who retrieved sperm from their deceased child and wished to be grandparents, but would raise the child on their own (i.e., without the involvement of the biological mother). For these clients, however, the odds of achieving such an outcome seemed slim.

Consent?

Based on the legal history and trajectory, it is not hard to ascertain that Israeli culture is one that heavily values legacy and biological continuation. But, as argued in this law review article I co-wrote, consent should be an essential element in these determinations.  Not only should courts strive to assess whether the deceased wanted to have children, they should assess whether a deceased person would have wanted to conceive a post-death child.

Rosenblum’s Biowill movement — which allows individuals to dictate the terms of their biological legacy — is consistent with valuing consent. But the facts of the Shahars’ case do not appear to indicate that Omri even wished to have a child at the time of his death, much less that he may have wished to have a child after his death.

Of course, Omri has passed. Many therefore argue that it shouldn’t matter to him. But, as evidenced by estate law in the United States, we value and honor the deceased’s wishes. As should be the case with our gametes.

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