Israeli parents unable to harvest dead sons sperm, court decides

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jerusalem | Your son, a soldier, is killed by a Palestinian gunman in the Gaza Strip. Although he wasn’t married, he told you many times that he wanted to one day have children.

At the hospital where he died, someone tells you it’s possible to harvest and freeze his sperm, provided the procedure is carried out within 24 to 36 hours after his death. Perhaps later, you’re told, you’ll want to hire either a surrogate mother to bring your son’s child into the world, or to ask a single woman to become pregnant with the sperm and raise the child herself.

The Ministry of Health approves your request and, not long afterward, you start searching for the woman who will hopefully mother your grandchild.

Although this scenario could be the basis of a feature film, it is in fact the case for Rachel and Yaakov Cohen, a bereaved couple from Petach Tikva who desperately want to carry on their dead son’s legacy.

Unfortunately for the Cohens, whose case was featured recently in the Israeli daily, Maariv, after they advertised for a woman wishing to be impregnated, arrangements of this sort have just become illegal.

For although the Cohens were permitted to harvest their son Kevin’s sperm more than a year ago, two weeks ago Attorney General Elyakim Rubinstein announced a series of guidelines that will make it nearly impossible for them to carry out their plan.

Rubinstein’s directive, which took effect a few months ago but was made public only in early November, permits the dead man’s widow or common-law wife to utilize the sperm in cases where they can prove the deceased’s desire to sire children. But they explicitly prohibit a man’s parents from doing so.

The directive — several years in the making, was made in consultation with experts in the field of secular and Jewish law, philosophy, ethics and medicine.

Until now, various Israeli courts have dealt with such requests from bereaved parents and widows (about 10 during the past decade) on a case-by-case basis. Some of the requests were approved, others were not.

Supporters of the new regulations say they provide clear-cut guidelines for hospitals, fertility clinics and sperm banks, and therefore should make future court rulings much less subjective.

Gali Ben-Or, a Justice Ministry official who helped draft the directive, said the regulations fill a legal void created when advances in medical science made it possible to harvest sperm posthumously.

Prior to the new directive, Ben-Or explained, judges and hospital administrators had to rely on previous court rulings and inconsistent regulations.

“The Ministry of Health had some provisions related to sperm banks. One of the provisions related to a case where a man undergoing chemotherapy can deposit his sperm [and freeze it] prior to the treatment.” This specific provision stated that “if the man died, his wife or partner could use the sperm after his death.”

But in the mid-1990s, she said, “there was a petition to the court by the partner of a man who died of cancer. He left a will saying she could use his sperm.” Yet when the unmarried partner requested that the sperm bank relinquish the sperm, it refused. The court ruled that “the provisions related to a man and his wife and not to his unmarried partner,” she said. Over the years, “there have been a variety of cases, each with different circumstances.”

In one case, she recalled, “a husband and wife were in fertility treatments when the man suddenly died in a car accident or from an illness. The wife asked for the sperm. In another case, two weeks after a young couple married, the husband was killed on a motorbike. When the doctors asked the wife to donate the husband’s organs, she said she would consider it only if they gave her the sperm. At first the hospital said no, then OK. Then they consulted the Health Ministry. And us. We realized that in order for a court to seriously deal with this issue, it needs more time. We said it was OK to take the sperm, but said that afterward the court will have to decide whether or not to allow the implantation.”

While “we understand the terrible loss parents feel when their child dies,” she said that “parents do not a have a place” in the decision to harvest their son’s sperm.

“As much as parents cannot have any say about when and how their children have children while they’re alive, they [the parents] definitely have no status on this once the child dies. If the parents come and say, ‘we want grandchildren from him so much and we’ll find a nice woman to have the child,’ that is too much.”

In contrast, the attorney general took into consideration “the desire of the woman to have a child from her partner” and based the new regulations on the belief that “almost every man wants an offspring. Having children is a very natural outcome of any strong marriage or long-lasting relationship.”

Dr. Mordechai Halperin, chief officer of medical ethics at the Ministry of Health, said that prior to the guidelines’ implementation, “permission was given, either legally or illegally, to use sperm from the deceased.” Now, “permission is given only under two conditions: one, that the deceased gave his permission himself in writing or even orally, or that we can prove that this was his real wish. And two, that the female partner agrees with full-informed consent to carry that baby.”

Informed consent, say women’s right’s advocates, is key. Without it, they argue, family members — most likely the late husband’s parents — might pressure the surviving spouse to have a baby even if she does not want to be pregnant.

“One must honor the woman’s decision,” said Rina Bar-Tal, chair of the Israel Women’s Network. “We have good laws in this country but we don’t always enforce them. Let’s hope this one will be.”

Rabbi Gideon Weitzman, a counselor at Machon Puach, a center that provides information and support on fertility and Jewish law, said the topic of sperm harvesting must be viewed from many vantage points. “There is the question of whether this fulfills the man’s obligation to have children, to procreate. Another question, a social question, asks whether a person can live through his offspring. Halachah has to take this into account.

“Once you’ve said it’s allowed, you’re opening up another possibility. Will every person who dies want to have his sperm frozen? We must be concerned about that.”

Then there’s the issue of whether it’s halachically permissible to remove anything, even sperm, from a dead body.

Some rabbis, Weitzman said, believe this constitutes mutilation of the body. Even if the sperm is frozen while the man is still alive, “there are some who say that it still needs to be buried with the dead person. But in the case of frozen sperm, there will be authorities who will allow it, assuming he was married” and that the sperm would be implanted in the wife.

According to Maariv, 28 women, including at least one who is married, have expressed interest in mothering the Cohen’s grandchild. One divorced mother said she had planned to go to a sperm bank, but much preferred “that a child of mine know who his father was, and to have a family.”

In the article, Rachel Cohen said the family had interviewed several women, but “it will be a very long road.”