Israel: Update on the Status of Posthumous Sperm Retrieval for the Purpose of Later Insemination or IVF Under Israeli Law
Jul 26, 2017
Author: Daphna Cohen-Stow and Victoria Gelfand - prominent Israeli attorneys in the fields of foreign surrogacy, family formation, family and LGBT rights. Both are members of the Academy of Adoption and Assisted Reproduction Attorneys.
Origin: ASRM News August 2017
Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.
The process of posthumous sperm retrieval has existed for decades. While some countries, such as the U.S., do not have legal restrictions prohibiting the practice, many others do. Since the late 1980s, several countries, including Germany, France and Sweden, have banned it for ethical reasons, even when there is written consent from the deceased. Israel had similar ethical concerns. In 2003, the government published guidelines asserting that the right to retrieve sperm for in vitro fertilization is solely permitted by the (female) partner of the deceased. The guidelines drew heavily on Jewish texts, mentioning that procreation is the first mitzvah (good deed) mentioned in the Bible: “Be fruitful and multiply,” and the assumption that spousal relationships usually lead to joint procreation.
However, during the years 2007-2016, the Israeli judicial system has slowly moved away from that position. In part, this reflects Israel’s general pro-natalist position. In 2007, a court allowed the parents of a soldier who died in Gaza to produce a grandchild using their dead son’s sperm as a “sperm donation” to a single woman who wanted a baby with a known father’s identity (note that otherwise, in Israel there is no option for a known sperm donation). The parents interviewed dozens of women for the role of mother of their future grandchild. The child who was eventually born from this joint process is now four years old, and lives with his biological mother. Prior to the court’s approval, the parents of the deceased soldier entered into a very detailed parenting contract with the chosen mother-to-be, clarifying her undeniable status as the sole legal parent of the future child, and the parents’ status as the child’s grandparents – who shall have visitation rights and shall assist financially, but may not interfere with the mother’s decisions, e.g. about changing her place of residence with the child, choosing the child’s schooling and medical care, etc.
In 2009, another soldier, who was diagnosed with cancer, explicitly donated his sperm while still alive for the same explicit purpose. His family also found a woman who wanted to use his sperm in order to bring a child into the world. Since then, a few other cases were brought in front of the family court in Israel. Whenever the parents were able to prove that the presumed wish of the deceased was to have children, the court granted their petition to use their son’s sperm with a woman who would be the legal and biological mother of the expected child. During the last year, in late 2016 – early 2017, this tendency shifted again as a result of two new court rulings.
Israeli Supreme Court Rules Parents Cannot Use Late Son’s Frozen Sperm Against Widow’s Will
This Israeli case involves a young man who died from an accident in 2004. At the request of his newly-wed wife, sperm was extracted from him shortly after his death. A few years later, the parents of the deceased man requested to inseminate another woman, who would be the child’s legal and biological mother, with their late son’s sperm – as the widow, who during the years since the death of her husband, gave birth to two children with a new partner, and did not wish to use the sperm herself. The widow objected to their request.
The District Court declared that half of the 19 tubes of frozen sperm belonged to the parents of the deceased. The widow appealed against the decision to the Israeli Supreme Court.
The widow argued that in accordance with the Israeli Attorney General’s Directive on post mortem extraction and use of sperm (AG Directive No. 1.2202 (Oct. 27, 2003), Ministry of Justice of Israel website (in Hebrew), hereinafter “the AG Directive”), her late husband’s parents did not have any legal status regarding the frozen sperm. She also argued that the deceased did not wish to have children whom he could not raise or children born as the result of insemination of a woman he did not know.
The parents made several arguments supporting their claim to the Israeli Supreme Court. They argued that since the widow did not wish to use the sperm herself, she did not have standing to oppose their request to inseminate another woman with the extracted sperm. The parents asserted the Attorney General was the only party who had standing to oppose their request and since the Attorney General did not appeal the lower court’s ruling that granted them ownership of half of the sperm tubes, the widow did not have the right to do so. Moreover, the parents argued that the AG Directive, which does not recognize parents’ rights to determine the use of sperm extracted after a son’s death, did not match changes in the family unit caused by modern life. Lastly, the parents argued the fact that the widow agreed to extract sperm from the deceased’s body after his death showed she believed he would want children, even if he could not raise them.
The majority opinion by Justice Esther Hayut rejected the parents’ claim of the right to receive and use the sperm based on their claimed right to grandparenthood. The court ruled that subject to limited exceptions, grandparents’ rights towards grandchildren are not recognized under Israeli law, as long as the children and their spouses are alive and legally competent. Grandparents’ rights, such as the right to keep in touch with grandchildren, only exist with regard to grandchildren who are already born. Grandparents’ rights do not extend to the right to demand the birth of grandchildren.
With regard to estimation of the presumed wish of the deceased regarding procreation, it was held that except for unique cases, which the current case was not considered to be, parents should not have standing to clarify their deceased son’s wishes if he had a steady life partner.
Judge Hayut noted that “Israeli case law and the AG Directive have opened an ‘unpaved road’” which is almost unparalleled in the world, as in many countries extraction and use of sperm after death is prohibited.
A minority opinion by Justice Hanan Melcer asserted that in the absence of legislation, the Court must analyze the case in accordance with case law and the “principles of liberty, justice, decency and peace of the heritage of Israel”.
Analyzing prior Supreme Court decisions, Melcer concluded that the Court had previously recognized the right to parenthood based on the “need for continuity” that derives from human dignity and liberty. Melcer accepted statements from both a few of the deceased’s childhood friends and his parents’ that he would have wanted children to “leave his mark in the world,” even if not with his wife. Wherever the deceased had exp¬ressed a wish to realize a certain right during his lifetime, or wherever such a wish could be attributed to him, Melcer asserted, the Court must protect his right even posthumously and often even when the deceased’s wish conflicts with that of his living close relatives.
[Family Appeal 7141/15 Supreme Court, Anonymous v. Anonymous (Dec. 22, 2016) http://elyon1.court.gov.il (in Hebrew)(Isr.)]
Court Rules Israeli Parents Cannot Bring a Child into the World Using Late Son’s Frozen Sperm, an Egg Donor and a Surrogate – Overturning Lower Court Decision
Omri Shahar was killed in a car accident in 2012 when he was 25 years old. At the request of his parents, sperm was extracted from his body shortly after his death. Omri’s parents submitted a petition to a Family Court requesting permission to use Omri’s sperm for IVF procedures, using an egg donor and a surrogate, with the intention of raising the expected child by themselves, as the child’s grandparents. Omri’s girlfriend of three years (at the time of his death) said she did not want to become pregnant herself with Omri's sperm, but supported his parents’ request to become grandparents.
This petition was unique as it was the first time in which parents of the deceased asked to raise the child on their own and did not petition alongside a woman who would be the expected child’s biological and legal mother. The Attorney General had opposed the application, asserting that the parents’ request is “dangerous and far-reaching application”, and granting it would go against the child’s best interests, because such a child would be subject to “planned orphanhood” and would be “fragile in comparison to children from normative families.” Moreover, the Attorney General argued the child would become a “living monument” to his dead father, and “would be at risk of not fulfilling the expectations of him and would engender negative feelings in his [grand]parents”.
The parents supported their petition with a few expert opinions that had praised their exceptional abilities to understand their role in the life of the future child as the child’s grandparents, and to clarify that role to the child himself to prevent confusion. They also argued that in 2016, the general norms in Israel have changed from those that existed in 2003 when the Attorney General executed the AG Directive; and nowdays many different types of families exist and are “common and blessed”. In addition, the parents argued that in the Israel of the 2000’s, many two-parent families, in which the parents have full-time jobs, receive significant help from their parents (the children’s grandparents) to raise their children.
A home study that was commissioned by the State’s welfare services social worker recommended to not allow bereaved parents to raise the grandchild, as they would still be mourning the death of their deceased child and would probably find it hard to separate that feeling from the existing child. Yet, the court refused to accept general recommendations about “any bereaved parents,” and held that each family’s circumstances must be seen as unique and inspected per se. The court found that the petitioners in this case were very involved grandparents to their other grandchildren, and Omri and his partner actually intended for the petitioners to provide significant help in raising their future children. Also, rising life expectancy statistics make the parents in this case (in their early fifties) of an age suitable to raise a child. The parents also are in close contact with social workers and psychologists, and are willing to have continuous support of such professionals in the future, throughout the years of raising the grandchild.
And thus, despite the Attorney General’s objection, and based on the best interests of the future child, as well as parental competence of Omri’s parents, in September 2016 Justice Yocheved Greenwald-Rand ruled in favor of the parents and approved their request, stating, “there is nothing unacceptable about the way they chose to deal with their bereavement and their request to give their late son descendants and raise them as their own.” Such a child would be born into an “environment desiring his birth, supporting, loving, embracing and with excellent parental ability to raise him in the best way.”
However, only a few months after this exceptional ruling by the Family Court, the Supreme Court rendered its judgment in the case discussed above. Based on that ruling, in January 2017, the District Court overturned the Family Court’s decision upon the Attorney General’s appeal, and denied the option of grandparenthood from Omri’s sperm.
[File No. 16699-06-13 Family Court (Petach-Tikvah), Asher Shachar v. The Attorney General (Sept. 27, 2016), Nevo Legal Database (by subscription, in Hebrew) (Isr.). Family Appeal 45930-11-16 (Center-Lod District Court) The State of Israel v. Shachar (Jan. 29, 2017), Takdin Legal Database (by subscription, in Hebrew) (Isr.).
Posthumous Sperm Retrieval – Legislative Status in Israel
During the court deliberation on the above two cases, the judges noted that despite the significant moral and social aspects of such cases, Israeli law had not provided a comprehensive answer. Following those statements, the Attorney General notified the court that new legislation in regards to this matter is about to be submitted to the Knesset (Israeli Parliament) for consideration. The bill would propose comprehensive regulation of all activities undertaken by sperm banks in Israel, and would include a chapter on “freezing sperm for future use”, as well as a chapter on “extraction and use of the sperm of a deceased person.”
According to the proposed bill, in the absence of provisions made in writing by the deceased, “his wife or steady partner alone may become impregnated from the sperm of the deceased or inseminate her eggs with his sperm…” As currently drafted, it also provides that “relatives of the deceased, except his wife or steady spouse, will not have any standing regarding extraction or use of his sperm, except if the deceased was not married or did not have a steady partner at the time of his death, and only if he instructed so in writing…” The future of the bill, including whether any changes would be made prior to passage, remains to be seen. As of July 2017, it has yet to be submitted to the Knesset for consideration.