JEWISH LAW ASSOCIATION STUDIES XXIX
The Impact of Technology, Science, and Knowledge
JEWISH LAW ASSOCIATION STUDIES (JLAS) ISSN: 0890-7552
JLAS I: The Touro Conference Volume (B.S. Jackson, Editor) JLAS II: The Jerusalem Conference Volume (B.S. Jackson, Editor) JLAS III: The Oxford Conference Volume (A.M. Fuss, Editor) JLAS IV: The Boston Conference Volume (B.S. Jackson, Editor) JLAS V: The Halakhic Thought of R. Isaac Herzog (B.S. Jackson, Editor) JLAS VI: The Jerusalem 1990 Conference Volume (B.S. Jackson and S.M. Passamaneck, Editors) JLAS VII: The Paris Conference Volume (S.M. Passamaneck and M. Finley, Editors) JLAS VIII: The Jerusalem 1994 Conference Volume (E.A. Goldman, Editor) JLAS IX: The London 1996 Conference Volume (E.A. Goldman, Editor) JLAS X: The Jerusalem 1998 Conference Volume (H.G. Sprecher, Editor) JLAS XI: Law, Judicial Policy and Jewish Identity in the State of Israel (D.B. Sinclair, Editor) JLAS XII: The Zutphen Conference Volume (H. Gamoran, Editor) JLAS XIII: Jewish Family Law in the State of Israel (M.D.A. Freeman, Editor) JLAS XIV: The Jerusalem 2002 Conference Volume (H. Gamoran, Editor) JLAS XV: Jewish Biomedical Law (D.B. Sinclair, Editor) JLAS XVI: The Boston 2004 Conference Volume (E. Dorff, Editor) JLAS XVII: Studies in Medieval Halakhah in Honor of Stephen M. Passamaneck (A. Gray and B.S. Jackson, Editors) JLAS XVIII: The Bar-Ilan 2006 Conference Volume (J. Fleishman, Editor) JLAS XIX: Jewish Commercial Law. Essays in Memory of George Webber (J. Cohen, Editor) JLAS XX: The Manchester Conference Volume (L. Moscovitz, Editor) JLAS XXI: Israel as a Jewish and Democratic State (A. Maoz, Editor) JLAS XXII: S. Jackson (L. Moscovitz and Y. Rivlin, Editors) JLAS XXIII: The Fordham Conference Volume (D.B. Sinclair and L. Rabinovich, Editors) JLAS XXIV: The Netanya Conference Volume (Y. Sinai, Editor) JLAS XXV: Jewish Law and its Interaction with Other Legal systems (C. Hayes and A. Israel-Vleeschouwer, Editors) JLAS XXVI: Jewish Law and Academic Discipline: Contributions from Europe (E. Ancselovits and G. Wilkes, Editors) JLAS XXVII: Judaism, Law and Literature (M. Baris and V. Liska, Editors) JLAS XXVIII: The Jewish Family (H. Fox and T. Meacham, Editors)
Jewish Law Association Studies XXIX
The Impact of Technology, Science, and Knowledge
Edited by
Elisha S. Ancselovits, Elliot N. Dorff, and Amos Israel-Vleeschhouwer
The Jewish Law Association 2020
Copyright © 2020 Jewish Law Association
All rights reserved. No portion of this publication may be duplicated in any way without the express written consent of the publisher, except in the form of brief excerpts or quotations for the purpose of review.
Printed by IngramSpark Printing
ISBN 978-1-7351796-2-9 (paperback) ISBN 978-1-7351796-4-3 (hardcover) ISSN: 0890-7552
Published and Distributed by: Phillip I. Lieberman On behalf of the Jewish Law Association Email: [email protected]
The Jewish Law Association Officers
2018/2021
Chairman: G. Wilkes Vice-Chairman: P.I. Lieberman Treasurer and Secretary: L. Rabinovich Secretary for Publications: A. Israel-Vleeschhouwer
The Association seeks to promote the research and study of Jewish law through congresses, the publication of a journal, Jewish Law Association Studies, and making other publications in Jewish law available to its members at concessionary rates. For further details of membership, please contact the Treasurer and Secretary at [email protected].
CONTENTS
1: ELISHA ANCSELOVITS, Introduction New Horizons in Jewish Law Studies 1-4
Section One Current Jewish Law Methodologies Address the New Challenges Well 2: JACOB J. SCHACTER, The Challenges and Blessings of the Internet: Technology from an Historical Perspective 5-20 3: YAACOV SHAPIRA, Taking Sperm from the Deceased: Israeli Law and Meta-Halakha 21-55 4: JAY R. BERKOVITZ, Precedent and Freedom of Interpretation in Early Modern Ashkenazic Responsa 56-71 5: DANIEL SINCLAIR, The Impact of Erroneous Scientific Beliefs on Jewish Law in Relation to the Halakhic Definition of Death 72-90
Section Two Jewish Law Requires New Methodologies for Analyzing Issues 6: NADAV S. BERMAN, Jewish Law, Techno-Ethics, and Autonomous Weapon Systems: Ethical-Halakhic Perspectives 91-124 7: ELLIOT N. DORFF, Becoming Yet More Like God: A Jewish Theological, Institutional, and Legal Perspective on Radical Life Extension 125-138 8: ARON S. BUCHMAN, Constructing Boundaries of Human Life: Will Biotechnological Enhancements Break the Impasse? 139-154
Section Three Jewish Law Requires New Methodologies for Applying Halakhic Information 9: YISHAI OFRAN and AMOS ISRAEL-VLEESCHHOUWER, Authority Crisis in the Era of Information Flooding: A Challenge Shared by Rabbis and Physicians 155-166 10: ELISHA S. ANCSELOVITS, Science and Knowledge as the Means Back to Phronetic (Wise) Law 167-195
BOOK REVIEWS Jonathan S. Milgram, Book Review Editor
11: ELLIOT N. DORFF, Review of Leon Wiener Dow, The Going: A Meditation on Jewish Law 196-198 12: DOV KAHANE, Review of Gregg E. Gardner, The Origins of Organized Charity in Rabbinic Judaism 199-201 13: SHANA STRAUCH SCHICK, Ayelet Hoffman Libson, Law and Self- Knowledge in the Talmud 202-204
3 TAKING SPERM FROM THE DECEASED ISRAELI LAW AND META-HALAKHA
by
YAACOV SHAPIRA*
A. Introduction Developments in medical technology now enable doctors to take sperm from a a social-ethical issue that has not yet been resolved by the Israeli legislature. In 2002, Dr.
1 In his opinion, as long as the deceased had not given his agreement explicitly, taking sperm from
instructions that sperm be drawn from him after his death, it is prohibited to carry out his forbid invasive acts towards a corpse. article, the Attorney General at the time, Elyakim Rubinstein, issued guidelines entitled, 2 providing conditions that, if fulfilled, would of Israel as a Jewish and democratic state, and on the basis of the human rights granted by deceased persons to draw sperm from their loved ones in order to use it to create life, and, as I shall describe below, family courts have even gone beyond the conditions in the guidelines in their rulings. guidelines and those underlying the various rulings of the court on this issue. I examine whether they express a certain ethos and whether that is a uniquely Jewish ethos. I also address the positions of various halakhic experts on this subject and compare the principal concepts and values behind their ru guidelines and court rulings. I shall try, among other things, to analyze how the halakhists arrived at their positions. Do they address ethical objectives, among them: fulfilling the presumed will of the deceased or perpetuating the name of the deceased? Do they deal less with questions of essence and more with procedural obstacles: disgracing the dead, the prohibition of benefitting from the dead, etc? And perhaps that too is a kind of ethical choice, as I shall maintain below.
* Jacob Shapiro is a Director in the Jewish Law Department of the Ministry of Justice and has lectured for many years on Jewish law in the Faculty of Law of the Hebrew University of Jerusalem and on Constitutional Law (Religion and the State) in the Faculty of Law of Bar Ilan University. He also served as a Visiting Fellow at the Oxford Centre for Hebrew and Jewish Studies in 2015 and as the senior assistant to the Attorney General of the State of Israel, Elyakim Rubinstein (who subsequently served as vice president of the Supreme Court of Israel) 1 Refuah u-Mishpat 27 (2002), 100. 2 Guideline no.1.220 (Oct. 27, 2003).
22 JLAS XXIX: The Impact of Science, Technology, and Knowledge
B. The Will of the Deceased A position that advocates responding positively to the request to use the sperm of the deceased presumes that such was his desire in his lifetime and as such it should be fulfilled. However, we m 3 Michael Birnhak4 distinguishes between responding to the will of the deceased because a person has the right to have his will fulfilled after his death,5 and responding to the will of the deceased out of a recognition that fulfilling a certain desire also fulfills some value or interest. deceased should be granted only if both of these principles are applicable. It stressed that the authorization to use the sperm be granted only if it can be ascertained that such was the will of the deceased, every case should be evaluated on its own merits, in accordance with 6 It asserts that:
is that the spouse is the most faithful representative of the will of her deceased mate, since she is the closest person to him, and his natural partner in the matter under discussion, and therefore she is the most appropriate person to represent the position of the deceased regarding his opinion and desire for progeny in general and the use 7
In addition, the guidelines specify that when the spouse of the deceased is the one requesting to use the sperm of the deceased, the request should be granted because it and demonstrated interest, both to bring children into the world from the sperm of the deceased, to whom she was tied during his lifetime, and also to maintain and perpetuate 8 A countervailing argument could be made that due to the interest of the spouse in bringing not be regarded as a faithful representative of his will, since she is in a situation of conflict of interest in this that the use of his sperm after death, she would not request it. Nevertheless the guidelines determine that:
affidavit by a social worker, in any case that reaches the court, in order to enable additional and objective examination as to the will of the deceased and in particular the sincere, free, and true will of the spouse, in order to make sure that she is not under influence or
3 Taan. 21a, Gitt Magal 10 (1994), 207-223. 4 Iyyunei Mishpat 31 (2008), 57-114, esp. 64-65, 68. 5 Cf. Article 1 of the Legal Competency and Guardianship Law
6 Guideline, par.14. 7 Ibid., par.17. 8 Ibid., par.11.
Shapira: Taking Sperm from the Deceased 23
pressure that casts a shadow on her discretion regarding the issue under 9
f sperm should not be authorized if it contradicts the explicit desire of the deceased, expressed in writing or orally, or deduced 10 The guidelines11 also stress that if the deceased had no permanent partner in his life, the request for use of his sperm should not be granted. That is because in the absence of a partner it is impossible to determine the will of the deceased and, in addition, absent a partner there is no interest to agree to the request. The majority of members of the public committee that examined legislation regarding fertility and childbirth in Israel (the Mor Yosef Committee), which discussed the question of taking sperm from the deceased,12 The in certain cases is not the norm in most countries.13 More than a few countries entirely prohibit the use of the sperm of the deceased.14 These include Sweden, Canada, Germany, France, and Switzerland. In England the sperm of a deceased person may be used only if he gave his explicit agreement in writing to do so.15 Family courts in Israel have not regarded themselves as subservient to the Attorney its aspects. They have ruled that the will of the deceased may be derived not only from the position of his spouse. They also ruled that the social interest in allowing use of the sperm of the deceased does not necessarily require that the child be born to the spouse of the deceased. Thus, for example, the court16 authorized a single mother, whose son fell as a lone soldier in the course of his military service, to use his sperm. The son did not leave an explicit will regarding this, but the mother requested
17 The judge relied on a declaration by
9 Ibid. 10 Ibid., par.14. 11 Ibid., par.19. 12 https://www.health.gov.il/PublicationsFiles/BAP2012.pdf. 13 Cf. Y. Hashiloni- Alive: The Use of Sperm for Giving Birth after Death, Patriarchy, Pro-Natalism, and the Myth of Perpetuating Iyyunei Mishpat 39 (2016), 682. 14 Mikhtav Le aver 58:16 (1996). 15 English law has also determined that the offspring born is not considered the offspring of the donor of the sperm (Human Fertilisation and Embryology Act, 1990, Article 4(1) ). It is notable that despite this the
Belgium for fertilization there (Regina v. Human Fertilisation and Embryology Authority ex parte Blood, 2 A11 ER 687 (1997) 35 (BMLR 1 CA). It should be mentioned that the sperm was extracted from the husband in his lifetime, while in a coma, and the House of Lords determined that the spouse presented persuasive evidence that her husband would have agreed in writing permitting the use of his sperm, if he had an sperm of the deceased, extracted from him in his lifetime, to be sent to Spain for fertilization by his spouse. In Spain, as opposed to France, such an act is legal. The ruling stated that applying the French law in this lifetime that his sperm be transported to Spain for fertilization (CE, 31 Mai 2016, Mme C. A, No 396848). 16 Family court File (Kiryat Shemona) 12977-01-14, Jane Doe v. Ministry of Health (Judge Arnon Kimmelman), published in Nevo, 6 January 2015. 17 Page 24 of the verdict.
24 JLAS XXIX: The Impact of Science, Technology, and Knowledge
18 Another friend of the
19 These words of the deceased testify to his desire to have children during his lifetime, though they are not evidence that he wanted his sperm to be used after his death. The judge stressed that the ruling was based on recognition of the importance of perpetuating the name of the deceased out of respect for him. Therefore, this verdict was based on recognition of the value and interest of using the sperm of the deceased and not on fulfilling his will. In another far-reaching verdict,20 the petition of a single woman aged 40 to use the sperm of a man who died of cancer was discussed. The deceased had deposited sperm samples before starting chemotherapy, in order to ensure his fertility, but unfortunately, he died. The petitioner, who was not related to the family of the deceased and knew neither him nor any of his family members, received the agreement of his parents to be fertilized deceased a concrete or presumed will, nor is there any public interest to allow this to anyone udge agreed to the request, stating that:
examining all of the rights and interests of the parties involved in the case, which are interrelated and complement each other, the private interest and the public interest, dignity of the deceased, and the welfare of the child, and all of this against the background of essential social changes that have occurred in the institution of
She pointed out that the interest of the decea petitioner to fulfill her parenting as fully as possible in a traditional family structure, i.e. including grandparents; the interest of the parents of the deceased to enable them to interest of the eventual offspring in a family identity that included a father, grandfather, and grandmother. This last interest would not be fulfilled if the petitioner were fertilized through the sperm bank. The judge concluded that the deceased agreed to the use of his sperm from his ts stated that from their personal, close knowledge of him, it was clear to them that he wanted to have children even after his death. The judge added that even if the deceased hoped to make use of the sperm during his lifetime, he must have considered the possibility that the frozen sperm would be used for fertilization after he was no longer among the living. She also clearly this aspiration itself is insufficient to conclude that he wanted children posthumously, it does provide a hint, even if a very slight one, to his feelings on the :
childless rather than to die and leave a child from his sperm after him. It is only
man who has no sons is considered dead, said R. Joshua ben Levi (Ned. 64b).
18 Page 25 of the verdict. 19 Ibid. 20 Family court File (Krayot) 13530/08, New Family v. Rambam Hospital (Judge Esperanza Alon), published in Nevo, 6 December 2009.
Shapira: Taking Sperm from the Deceased 25
Therefore, like a man also a woman, most people regard having offspring as an
Thus, it is evident that the judge made every effort to agree with the petitioners and permit the use of the sperm of the deceased. First of all, she deduced that the deceased agreed that his sperm be used posthumously even though he left no explicit instruction to use it. In her opinion, his agreement may be deduced from the fact that in his lifetime he expressed a desire to have children. This conclusion is by no means obvious since perhaps the deceased wanted to raise children but did not intend that his sperm be used to beget children after his death. Therefore, she wanted to assume that the deceased considered this possibility even though no such indication was presented to her. In the face of the difficulty in this assumption, the judge added that it may be concluded from the strong will to live that palpitated in the heart of the deceased. However, his will to live does not testify to his thinkin prefers that after his death a child should remain rather than dying childless. Thus, her recognition of the value and the interest of a childless person to have progeny led to the assumption in her ruling that the deceased was interested to do so. In the wake of these rulings, the Attorney General at the time, Yehuda Weinstein, instructed (November 2013) that in the absence of a widow the parents of the deceased are entitled to request the use of the sperm of the deceased to the extent that the request conforms to the will of the deceased.21
C. Widow/Parents A different request for use of the sperm of the deceased was submitted to the Family Court by parents of the deceased, but not supported by his widow.22 The court was convinced that the parents of the deceased, and not his widow, represented faithfully the will of their deceased son and acted as his agents. The court even heard in this context testimony from witnesses who supported the petition of the parents, and examined passages of a diary that the deceased wrote before his marriage during a period of temporary separation from the woman he eventually married. On the basis of this evidence the court was convinced that the deceased consented in his lifetime that his sperm be used posthumously. Yael Hashiloni and Zvi Triger criticized the court for its reliance on the diary, since the passages from the diary cited indicate the will of the deceased was to parent children in conjunction and together with his spouse and do not refer to bringing children into the world posthumously.23 The court even presumed that under circumstances in which the widow chooses not to be impregnated with the sperm of her deceased spouse, he would like his sperm to be fertilized by another woman who was not his wife. In this context, the court upheld the right of the deceased to perpetuate his memory, determining that:
The widow cannot prevent the birth of a child by means of another woman from the seed of one who had been her husband, especially in a case in which she built a new home for herself.
21 The instruction was given orally, and the information was provided to me by Advocate Ruth Gordin of the
22 Family court File (Petah Tikva) 31344-09-13, (Judge Miriam Kraus), published in Nevo, 18 March 2015. 23 Hashiloni-Dolev and Triger, op. cit. (supra, n.13), 682.
26 JLAS XXIX: The Impact of Science, Technology, and Knowledge
The right of the deceased to perpetuation and to have offspring and the right of his parents to guarantee that are basic rights.24
In another case, the widow not only did not support the petition of the parents to use 25 Despite this, the court preferred to agree to the par child, and besides him the parents had no progeny. The court stated that in these circumstances there is greater weight to the desire of the parents for continuity. The court was aware that beyond everything else the presumed will of the deceased should be examined, and in the face of that wrote:
impending and that his wife/widow would not agree to be impregnated with his sperm, . The widow did not deny that the deceased and his parents were very close, and that the deceased shared with them his thoughts and secrets. It may be presumed that the 26
It seems that the court sensed the speculative aspect of its remarks,27 and consequently it added a reference to the opinion of Prof. Asa Kasher according to which it may be presumed that a person wants to have children even after his death. This is what Kasher said:
In the State of Israel, bringing children into the world is so widespread a value, with so many practical expressions, that the presumption should be the opposite: it should be taken for granted that a person is interested in having offspring, who will live in
practical way to honor the dead than to maintain his presence significantly in the lives of those he left behind. And there is no more meaningful way to maintain this presence than the living existence of a descendant in our midst.28
The widow appealed the decision and the Supreme Court accepted her argument in a majority ruling.29 Justice Itzhak Amit ruled that the spouse represents most faithfully the presumed will of the deceased regarding the posthumous use of his sperm.30 This is because ocreation and 31 Consequently, in a case in which the wife objects to the use of the sperm of the deceased, the parents of the deceased have no standing in the matter. It should be noted that in the circumstances of this case, it is difficult to identify the presumed will of the
24 Para. 7 of the verdict (supra, n.22), 4. 25 Family court File (Jerusalem) 27169-11-13, Anonymous v. the Deceased (Judge Shlomo Elbaz), published in Nevo, 20 January 2016. 26 Para. 14 of the verdict. 27 Cf. the critique of Hashiloni and Triger on the remarks of the court (supra, n.13), 684. 28 Bio-Ethica: Forum Safed le- Bioethiqa, 11 (2015), 7 [Hebrew]; quoted also in Appeal of family file (District court, Central-Lod) 7457- 05-15, A. v. M., published in Nevo, 17 October 2015. 29 Appeal of family file, the Supreme Court, , Anonymous v. Anonymous and Anonymous, published tandard in Israeli Supreme Court cases, the judges wrote separately and their rationales were not identical). 30 Ibid., 69. 31 Ibid.
Shapira: Taking Sperm from the Deceased 27 be extracted from his body and did not object to fertilizing it. Therefore, in the opinion of Justice Amit, one could conclude from that fact that the deceased agreed to do so. However, after the widow entered a relationship with another partner, she refused to fertilize the another woman. Thus, according to Justice Amit, her agreement regarding use of the sperm of the deceased, the conclusion about the difficulty of relying on the word of the widow to determine the will of the deceased. Perhaps that is why Justice Amit raised another argument in his ruling suggesting that lead to social pressure on them to attain this goal.32 However, it is unclear why this argument should be brought against the parents specifically. Such social pressure could also be brought on the widow herself,33 even more forcefully, since she had the ability to fulfill the presumed wishes of the deceased to have progeny by her. Nevertheless, Justice Amit did not deny the right of the partner to be fertilized with the sperm of her deceased husband. Justice Esther Hayut did not try to derive the intention of the deceased from the words matter, it may be presumed that he was interested in having progeny only by means of his widow. Nevertheless, she pointed out that the parents could contradict this presumption if they brought evidence that relations between the couple had soured before his death and that he expressed interest in having children outside the family unit.34 She also pointed out that one cannot lay down hard and fast rules on this issue when the deceased had no partner and the request for the use of his sperm comes from his parents.35 Justice Yoram Danziger maintained that in order to approve the use of sperm posthumously, it is insufficient to rely on the presumed will of the deceased but also necessary to determine whether fulfilling that will serves an appropriate interest. In his opinion, if the request for use of the sperm of the deceased comes from his partner, who family unit that was severed pre- 36 Nevertheless, Justice Danziger considered that in a case where there is no partner, the right of the parents to be grandparents may justify the posthumous use of sperm.37 However, in the opinion of Justice Meni Mazuz, without explicit instructions from the deceased, given in his lifetime, only his partner should be permitted to be impregnated his will in this context. Justice Mazuz went on to state that refusing to agree to the request being carried out.38 He explained further that beyond fulfilling the will of the deceased, ective, the interest of the widow to be impregnated by the sperm of the deceased, with whom she had made plans to raise a family, should also be recognized.39 However, if serious indications are found that cast doubt on the wish of the
32 Ibid., 68. 33 Justice Amit even pointed this out (ibid.). 34 Ibid., 29. 35 Ibid., 30-31. 36 Ibid., 81. 37 Ibid., 90. 38 Ibid., 99. 39 Ibid., 102.
28 JLAS XXIX: The Impact of Science, Technology, and Knowledge deceased that his partner be impregnated with his sperm posthumously the request should be refused.40 Against all of these opinions, Justice Hanan Melzer, in a minority opinion, stated that onal right to continue his line, derived from the concept of human dignity.41 He added that according to the Foundation of Law (1980) which provides that if the court finds no answer to a legal question in statutory law, case law, or by analogy, it shall decide it in the light of 42 the court should by which a descendent is raised to carry on the name of the deceased who died childless.43 Therefore, according to his opinion, the petition of the parents should be accepted to use
One may generalize and say that while the instruction of the Attorney General stresses clarifying the agreement of the deceased to the use of his sperm, both by means of examining his presumed will and by means of the testimony of his partner, the decisions of family courts focused on the interests that justify the use of the sperm of the deceased, but the Supreme Court was divided in its approach to the matter. Some justices (Itzhak Danziger, and Hanan Melzer) followed the approach of the family court and defined, each in his own way, the interests that justify use of the sperm of the deceased. Conversely, justices Izhak Amit and Esther Hayut brought the discussion back to an examination of the presumed will of the deceased. Even before the above ruling was given by the Supreme Court, the State had considered adopting a rule which would have given parents no standing in these matters. In a draft of the Law of the Sperm Bank, 2016, it was proposed to determine that when alone may be allowed to be impregnated fr
In 2017 a number of Knesset members submitted a private bill, 44 determining a different directive from that of the aforementioned draft: Draft of a Law Families of Soldiers Who Fell in the Line of Duty (Reparations and Rehabilitation) (Correction Use of the Sperm of Fallen Soldiers), 2017.45 The draft sought to establish that if a soldier who fell in the course of his military service had not expressed in his lifetime explicit opposition to the posthumous use of his sperm, his partner could be impregnated with it. If the soldier did not have a partner or the partner does not want to be impregnated from his sperm, and the soldier had no children, either one of his parents could petition the court to use his sperm to inseminate a woman other than his partner. It is unclear why the bill focused on fallen soldiers specifically. In fact, the to protect its security, is not limited to giving material reparations to the surviving family, but needs to express also the possibility of exploiting advanced technologies, that may enable the bereaved families to raise progeny from the deceased and to maintain
40 Ibid., 99. 41 Ibid., 43. 42 In 2018, the Foundation of Law was amended and it was determined that if the court finds no answer to a legal question in statutory law, case law, or by analogy, it shall decide it in the light of the principles of
43 Ibid., 49. 44 Among them: Revital Swid, Itzhak Herzog, Amir Peretz, Meirav Ben Ari, Orly Levi Abucasis, Itzik Shmuli, Omer Bar-Lev, Amir Ochana, Yechiel Bar, Anat Barko, Eyyal Ben Reuven, Nurit Koren, Ayelet Nahmias Verbin, Yaakov Peri, Meir Cohen, Elazar Stern, Nachman Shai, Achram Hason, Yehuda Glick, Aliza Lavi, Avraham Nagosa. 45 .
Shapira: Taking Sperm from the Deceased 29
permission to use the sperm of the fallen soldier. The explanation goes on to state that first and foremost the continuity of the fallen soldier and thus a small tribute to the family, which could help in the rehabilitation of the family of the deceased, his partner and his
1. Should only the right of continuity of a fallen soldier be framed in law? What about that of a man who dies young as a result of an illness or accident? 2. Is permission to use the sperm of the fallen soldier based on a tribute to the family and not on presumed will of the fallen soldier?46
This bill never became law, and it seems that appropriate legislative policy should examine the right of every deceased for continuity, paying attention to his presumed will. It is interesting to compare both the draft of the sperm bank law and this bill to the opinion of the Ethics Committee of the American Society for Reproductive Medicine, published in 2018.47 According to the opinion, absent written instructions or evidence from the deceased, accession to the request of the partner should be considered. This differs from the language of the sperm bank draft and the bill, both of which grant the partner the right to be impregnated with the sperm of the deceased. The opinion of the ethical committee of the American Society for Reproductive Medicine also adds that time should be given to the partner to mourn the deceased before carrying out the procedure, and that professionals should be consulted.48 The ethics committee expressed reservations about acceding to the
The desire of a surviving partner to have a child with the gametes of the deceased, in light of their intention to have a family together, may be viewed with sympathy. A more troubling situation is when the request for gametes for posthumous reproduction does not come from a spouse or life partner, but from the parents of the deceased, who see this intervention as promulgating the legacy of their child or as the only way to become grandparents. Ethically, these situations are not comparable. In the case of a surviving parent, no joint reproductive effort can ever be said to have existed. Nor do the desires of the parents give them any ethical claim.49
Nevertheless, a Supreme Court Justice in New York State (Westchester County) acceded recently (in March 2019) to the request of parents to draw sperm from their son, a
46 y continuity, feelings of responsibility, and the need to compensate the families. It may be defined as a familial right to reproduce A. Westreich -day posthumous reproduction and traditional levirate marriage: two types of interac Journal of Law and the Biosciences (2019), 23). The question is whether it is possible to recognize the right of the family for continuity even in opposition to the presumed will of the deceased? And beyond that, should only the right of families of fallen IDF soldiers to continuity be recognized? 47 www.asrm.org/elearn --Posthumous retrieval and use of gametes or embryos: an Ethics Committee opinion. 48 The sperm bank draft proposed that the wife or partner may request to be impregnated by the sperm of her deceased partner only six months after his death but no later than five years from that time, unless a request for an extension of five more years was submitted. After ten years the court could affirm that special conditions justified acceding to the request at this time. The sperm bank draft also suggested receiving a and that he sees no impediment to acceding to the request (para. 67[1]). 49 Ibid.
30 JLAS XXIX: The Impact of Science, Technology, and Knowledge student in a military academy, who was killed in a skiing accident.50 The parents claimed
ive a little Peter who might live and parents added that the deceased was an only child in their extended family, and in their Chinese culture if the son does not have continuity, the family line will not be able to continue, and their family name will cease. They added that their son was aware of his role in continuing the family dynasty and adopted it seriously.51 Later on (in May 2019), the judge (John Colangelo) rul
Peter left no express direction with respect to the posthumous disposi 52 The judge relied also on th respect to his organs, Peter evinced an intent to leave for future disposition rather than to which procreative purposes. As far as the Court can discern, no such restrictions are mandated by 53 sperm. This was in spite of the fact that there was no conclusive evidence that their son had indeed expressed his consent that his sperm would be used after his death and the judge concluded that this was the will of the deceased based on his desire to raise children in his life. The judge also based his conclusion at least in part on the ostensibly irrelevant fact that the decedent had an organ donation card. Art Caplan, a professor of bioethics and head of the division of medical ethics at New York University School of Medicine, said he disagrees because he does not believe parents should have control over their should be made only for partners or spouses.54
D. Grandparents as Parents As mentioned above, the draft proposal that was meant to establish that parents sperm by another woman, in order for the newborn to be raised by them? The family court acceded to such a request from parents.55 The judge wrote in her decision:
50 al level court for matters above a certain financial threshold. The highest state court in New York is called the Court of Appeals. 51 http://www.newswest9.com/2019/03/07/parents-dead-west-point-cadet-retrieve-his-sperm; https://www.nytimes.com/2019/03/05/nyregion/west-point-peter-zhu-death.html. 52 In Re Zhu, Supreme Court of New York, Westchester County, 53327/2019 (May 16, 2019, Decided). 53 no -year- o urrogate mother to bear her a grandchild (http://time.com/5592616/peter-zhu-parents-sperm-surrogate). 54 https://www.washingtonpost.com/health/2019/05/21/cadet-died-tragedy-now-his-parents-can-use-his- sperm-create-his-child-judge-rules/. 55 Family court File (Petah Tiqva) 16699-06-13, Anonymous v. the State Attorney General (Judge Yocheved Greenwald-Rand), published in Nevo, 27 September 2016.
Shapira: Taking Sperm from the Deceased 31
The right of grandparents to see the continuity of their son deserves a place of honor in the list of constitutional rights of man because the interest of the bereaved parents to raise progeny for their deceased son is no less than the interest of the widow and they have a right to fulfill and realize this interest.56
However, the appeal by the State to the district court was accepted,57 and the court ultimately found against the parents. The judge, Zvi Weizman, relied on the aforementioned ruling by the Supreme Court58 and ruled that considering the fact that the deceased had a partner who was not interested in being impregnated by his sperm, the 59 He added that this case could not be characterized to recognize the presumed will of the deceased for this kind of use of his sperm because it is an exceptional usage, whereby a child will be born who will not know either of his parents.60 61 Moreover, Judge Weizman adopted the ruling of Justice Danziger cited above, according to which, lacking an explicit instruction, only fertilization by the partner justifies use of the sperm of the deceased.62 He added that also from the point of view of the welfare of the child, the request should be denied,63 since this child will be born without concrete parental figures his father deceased and his mother unknown.64 A request by the parents for permission to appeal to the Supreme Court was denied.65 by his partner. Consequently, it would be a departure from the Supreme Court ruling that in so far as the deceased did not express explicitly his will that sperm be taken from him posthumously and how it is to be used, use of the sperm is permissible only at the request of his partner and no one else and for the sake of her own fertilization.66 He added that the legal situation of this sensitive issue and to prevent violating the principle that lay at
56 Ibid., 24, para. 146. 57Appeal of family file (Central-Lod District) 45930-11-16, The State of Israel v. John Doe, published in Nevo, 29 January 2017. 58 Supra, n.29. 59 Supra, n.57, page 30. 60 Ibid., 36. 61 Ibid., 37. 62 Ibid., 38. 63 Ibid., 52. 64 Hashiloni and Triger (supra, n.13, page 684) point out that fulfilling grandparenthood in that way is forbidden in the world at large, and in the USA and England there are explicit regulations regarding this. They write that the accepted arguments are that the parents of the deceased are not a party to this matter and that they have no claim on the hereditary material left by their son. They add that requests to fulfill grandparenthood in this way are very rare throughout the world. Nevertheless, the Appeals Court in London permitted a 61-year-old woman to transfer the ova of her daughter who died of cancer to a clinic in New York for fertilization by an anonymous donor. This, in order to raise the child to be born together with her husband the father of the deceased ova donor. The court noted that there was sufficient evidence that such was the will -year-old wins legal round in fight to give birth to grandchild The New York Times, 1 July 2016; https://www.seattletimes.com/nation-world/british-60-year-old-wins-legal-round-in-fight-to-give-birth-to- grandchild-daughters-dying-wish). 65 Request for appeal of family file, the Supreme Court 1943/17, Anonymous v. The State of Israel, published in Nevo, 15 August 2017. 66 Ibid., 8, para.12.
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67 With all due respect, his categorical words do not reflect the complexity of the Supreme Court decision. That was indeed his position in his verdict,68 but Justice Hayut had stressed that if the parents could prove that their son was interested in fertilization by means of another woman, their request would have been granted.69 It is unclear whether the parents in this case were able to do so, but it would have been appropriate to consider it in the discussion of the request to appeal. Moreover, in this case the deceased, who perished at the age of 25, had a girlfriend, and they planned to marry and raise a family, but their plans were never fulfilled. Should this woman be regarded as a partner in the full sense of the word? Should she be considered the one who has the right to determine the possibility of using his sperm? In fact, she was not his wife and beyond the formality, they were just a couple who planned to formalize their relationship, but that never happened. Both Justice Hayut70 and Justice Danziger71 had stated that when there is no partner, the standing of the parents should be considered. This question should have been taken into account in discussing the question of appeal. The closed the door, putting an end to the issue once and for all. In a subsequent matter, the Supreme Court rejected another petition by parents to use the sperm of their deceased son. These parents were bereaved twice. Their younger son committed suicide in the course of his military service and a few months later, their firstborn son was murdered. Sperm was extracted from the older son immediately after his death and twelve years later the parents submitted a petition to allow them to use his sperm. The parents stated that after the death of their younger son, the elder son expressed
in their opinion the contrary, that the parents could not be granted the aid they requested because at the time of his death the deceased had a partner whom he was about to marry. In the face of that, the petition does not conform to the instruction of the Attorney General that no other party besides the deceased 72 the aforementioned Supreme Court ruling.73 successful,74 among other reasons because the reported astonishment of the elder son that indicated that he would have wanted his own sperm to be used posthumously even without the participation of his partner since the younger son died unmarried. The State appealed this decision, though, and the Supreme Court75 ed:
The factual evidence does not support the theory by which the deceased presumably held the opinion of desire for continuity after death without his partner, as opposed to the desire for continuity in general. Lacking sufficiently
67 Ibid., 8, para.13. 68 Cf. supra, n.38. 69 Cf. supra, n.34. 70 Cf. supra, n.35. 71 Cf. supra, n.37. 72 Family court file 36340-07-15 (Petah Tiqva), Anonymous et al. v. Attorney General et al. (Judge Y. Greenwald-Rand). 73 Cf. supra, n.29. 74 Appeal of family file (Central-Lod District), 50500-09-17, Anonymous et al. v. Attorney General et al. (Judges: M. Nadav, V. Plaut, and B. Tolkowksy), published in Nevo, 24 July 2018. 75 Appeal of family file, the Supreme Court, 6046/18, Attorney General et al. v. Anonymous et al., published in Nevo, 2 September 2019.
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significant and clear indications to contradict the normal assumption that the the appeal should be accepted.
One may question the unequivocal nature of this decision. The deceased demonstrated his opinion regarding the posthumous continuity of his brother, who died childless and without a partner. Insistence on the assumption that since the deceased did indeed have a partner, presumably he would have wanted to have progeny with that partner alone, leads to the difficult result that prevents continuity and does not conform to the sperm should have been used posthumously even though he had no partner, but that his own sperm should not be used if his partner did not want to be inseminated with it. It is important to point out that the partner, who in the meantime had raised a family, did not n which the parents lost both their sons without leaving any continuity, one could presume that the to use his sperm posthumously.76 This is the legal history, and an analysis, of the question of posthumous reproduction in Israeli law. In the next section, we turn to Jewish law, Mishpat Ivri. We will examine whether Jewish sources may offer guidelines to this issue.
E. The Biblical Injunction on Levirate Marriage In the context of posthumous reproduction, it is obvious to recall the biblical injunction on levirate marriage:
If brethren dwell together and one of them die, and have no child, the wife of the dead shall not be married abroad unto one not o
brother unto her. And it shall be, that the first-born that she bears shall succeed in the name of his brother that is dead; that his name be not blotted out of Israel (Deut. 25:5-6).
Prima facie, the Torah expresses here the interest of establishing a name for a deceased person who died childless, by creating a son attributed to him. This interest of the commandment of levirate marriage stands out clearly in comparison to various regulations in ancient Near Eastern compilations regarding the widow of a deceased, childless person. The following is the stipulation in Middle-Assyrian law:
husband died and she has children, she may dwell in their home as she chooses. If she had no children, her father-in-law -in-law died, and she had no son, she is a widow she may go to whom she likes.77
Therefore, if the husband dies childless, his father is allowed to wed the widow to one of his sons. Following this approach, one of the Nuzi documents mentions a man who bought a wife for his son, and in the purchase stipulated that if the son dies, the wife would be given to another son. Jeffrey Tigay reasons that the purpose of this clause was to insure the
76 And this despite the fact that a sister had provided the parents with grandchildren. 77 Middle-Assyrian Laws, Plate A, para.33.
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78 As did the Middle-Assyrian law, the Nuzi document stipulates that if the father-in-
The commandment in the Torah, however, is not based on the father-in- ownership of the wife, no deceased by creating a son attributed to him. Consequently, the injunction of levirate marriage does not depend on whether the father-in-law is still living. Interestingly, that is how the writer of Sefer Ha inukh understood the injunction of the Torah, clarifying how the child should be attributed to the deceased. In his words:
From the roots of the commandments, since after marrying the man the woman becomes like one of his limbs, as nature requires because the first father, one of his ribs was taken from him and God shaped it into a woman, and this man who died without children, who would be part of him as a memorial and take his place in the d for him to 79
Thus, we find that according to the writer of Sefer Ha inukh the purpose of the commandment of levirate marriage is to create a child belonging to the deceased biol
Isaiah Tishby wrote that the Zohar went even farther in its understanding of the commandment of levirate who dies childless] is reincarnation by means of levirate marriage, which was instituted in order to draw the soul of the deceased husband into the body of the newborn baby created from the unio 80 Michal Oron81 points out that also for the Kabbalists of Gerona the commandment of levirate marriage is based on the concept of marriage presume the existence of that undefined spiritual essence that the deceased left in his wife, from which it is possible to grow, to reincarnate, and to draw the soul of the 82 These kabbalistic interpreta directive that only the partner of the deceased should be allowed to use his sperm. However, it should be stressed that the directive regarding the partner does not require her to be his lawfully wedded wife which the kabbalistic sources would require. Beyond the kabbalistic clarification, it seems to me that it cannot be denied that the commandment of levirate marriage teaches the value that the Torah places on maintaining the name of the deceased who left no progeny by means of begetting children who will be attributed to him. Therefore, the possibility created by technological development bringing about offspring of the deceased from his own sperm, should be regarded as an alternative form of levirate marriage. This would be to make a name for the deceased literally. Indeed it is interesting to note that in the guideline of the Attorney General it says
78 Y.H. Tigay, Devarim Miqra le-Yisrael, (Tel Aviv: Am Oved, 2017), vol. 2, 621. 79 Sefer Ha inukh, Commandment 598. 80 Mishnat Hazohar (Jerusalem, 1961), vol. II, 616. 81 -Century Kabbalah and in the Writings of R. Todros ha- Mehqarim Behagut Yehudit (Jerusalem, 1989), 277-289, esp. 286. 82 Oded Israeli, Peshat, Sod, and Creation in the Saba de-Mishpatim in the Zohar (Ph.D. dissertation, The Hebrew University of Jerusalem, 2003), 132.
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83 Supreme Court Justice Hanan Melzer also writes that:
one should draw from the principle of raising a name for the deceased who passed away without having offspring (cf. Deut. 25:6), which is the basis for the laws of levirate marriage a guideline for a civil solution by which continuity for the deceased will be created by means of sperm extracted from his body using modern technology, which makes it possible.84
Don Seeman,85 however, argues that the laws of levirate marriage originate from a patriarchal-agricultural society based on control of land and women, and are no longer and Triger c terms: its purpose was to maintain the name of the deceased, and thus to continue the family, not the individual (since the children will be the genetic descendants of the brother, 86 However, it seems unlikely that this interpretation reflects the intent of levirate marriage in the Torah. Nor is it reflected in the biblical account nowing that the seed would not count as his Gen. 38:9). In all truth, it appears that the sages of the Mishnah sought to abrogate the commandment of levirate marriage:
At first, they intended [to perform the act] for the sake of the commandment. But now that they do it without such intention, halitsa [release of the widow] is preferable to yibbum [levirate marriage].87
This position maintains that the injunction of levirate marriage depends on the pure intention of the brother-in- purpose is selfish, the injunction is no longer valid. Since over the years the pure intention passed and the selfish one was rampant, the injunction of levirate marriage was abrogated. However, the words of this Mishnah were not accepted by all decisors, and the subject was a matter of controversy among Jewish communities. In the Geonic period the major centers in Babylonia differed on this issue. In Sura they practiced levirate marriage, but in Pumbedita they practiced release of the widow.88 Later on various communities in Europe practiced release, but the Sefardi communities in North Africa, and similarly in Yemen, Iraq, Persia, and some of the Oriental Communities in the Land of Israel practiced levirate marriage.89 In fact, Maimonides elaborates the aforementioned Mishnah as follows:
And the words [of the Tanna] here regarding halitzah and yibbum are according to the opinion that it is not possible in any way that the brother-in-law will unite with
83 Para.6 of the guideline. 84 Cf. supra, n.43. 85 . Birenbaum-Carmeli and Y.S. Carmeli (eds.) Kin, Gene, Community: Reproductive Technology among Jewish Israelis (Oxford: Berghahn Books, 2010), 340, 344. 86 Cf., supra n.13, p. 687. 87 M. Bekh. 1:7. 88 Cf. Otsar ha-Geonim (ed. B.M. Lewin), Yevamot (Jerusalem, 1936), 79-80 [Hebrew]. 89 Cf. H. Albeck, Commentary on the Mishnah, Seder Nashim (Jerusalem: Mosad Bialik, 1959), Introduction to Tractate Yebamot, 10 [Hebrew].
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the sister-in-law for any sake except for the commandment, but if he took her for the sake of money or for her beauty, it is as if he committed incest. And this is not right, because the prohibition of incest disappeared upon the death of the brother without issue and she is permitted to him even if he performed the act not for the sake of the commandment, and the law according to this understanding is that levirate marriage precedes release at all times, and that is the halakhah.90
In order to determine a uniform practice after the establishment of the State of Israel, in 1950, the Council of the Chief Rabbinate of Israel in the framework of a national rabbinical conference formulated a regulation that prohibits levirate marriage in the Land of Israel:
Following the ingathering of exiles from all the Diaspora, from the far corners of the Earth and distant islands, thousands and tens of thousands of immigrants and settlers
residents of the Land of Israel and upon those who will immigrate and settle from now on, a prohibition to carry out the commandment of levirate marriage at all, and 91
Nonetheless, the regulation was not accepted by all the rabbinical judges. About one year after its promulgation, R. Ovadia Yosef, at the time a judge in the rabbinical court of Petah Tiqva, discussed the case of an immigrant from Yemen whose brother died and he wanted to R. Ovadia she did so her brother-in- 92 In his ruling, he reasoned that:
the commandment of levirate marriage precedes that of release at this time as well, and there is no validity to the agreement of the presidents and members of the Chief Rabbinate of Israel to abrogate the commandment of levirate marriage, also with regard to Sefardim and Oriental communities, and they have no authority to do so.
the sister-in-law to agree to the request of her brother-in-law to unite with him in order to raise the name of the deceased on his
Later on in 1985, a brother-in-law and sister-in-law turned to the rabbinical court in Ashkelon to allow them to carry out levirate marriage.93 One of the judges, R. Paltiel Kahn, did rule that in the light of the ruling of the Chief Rabbinate their request should not be approved.94 However, another judge, R. Yosef Sharvit, relied on the aforementioned ruling by R. Ovadia Yosef and ruled that the couple should be allowed to perform the commandment of levirate marriage. The matter was brought before the President of the
90 Maimonides, Commentary on the Mishna, Bekh. 1:7. Cf. Commentary of R. Obadia of Bertinoro on the Mishnah, ad loc. 91 The regulation appears in Bitechuka le-Israel (Jerusalem, 1989), vol. 3, 169. 92 Cf. Responsa , , part 6, num.14. 93 Rabbinical court of Ashkelon, file . 94 He added and explained that the primary reason for abrogating the commandment of levirate marriage in our days is not uniformity among the communities of Israel, as mentioned in the regulation, but the suspicion today, in the wake of the promiscuity of the generation, that the deceased may have offspring unknown to us. In the light of this, levirate marriage should not be performed for fear of incest. This suspicion was reinforced by the fact that the sister-in-law was living in her brother-in- request was submitted.
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Rabbinical Court at the time, R. Mordechai Eliyahu, and he permitted them to perform the act and 95 injunction of levirate marriage demonstrates that despite the regulation of the Chief Rabbinate, which (as mentioned) was not accepted by all the rabbinical judges and even by all the Chief Rabbis, Israeli culture did not abandon the intention of the injunction, even though its implementation might encounter opposition for understandable cultural reasons.96 In the opinion of Supreme Court Justice Hanan Melzer,97 the singular identification of Israeli society with continuity of the deceased is related to socio-historical circumstances that the people of Israel experienced both in the Shoah and in the military struggle for establishing the state. According to some experts, reliance on the injunction of levirate marriage expresses a patriarchal approach.98 In their opinion, the purpose of the injunction of levirate marriage in the Bible was concern for maintaining genetic continuity of the deceased man, and it expresses a patriarchal concept of fatherhood, involving dissemination of genetic material unaccompanied by parental care.99 Aviad Kleinberg also wrote along these lines:
The law of levirate marriage requires the brother of the deceased to marry the widow, if she has no children, and determines that the child born will carry the
the importance of perpetuating the name of the deceased, both by giving him offspring and by preserving his land within the family.100
(Deut ed and 101 since the meaning of the word yaqum yitqayyem
e property of so-and- so the son of so-and- also acquiring Ruth the Moabite, the wife of Machlon, as my wife, so as to perpetuate the name of the deceased upon his estate, that the name of the deceased may not disappear Ruth 4:10) as meaning that
Therewith, Tigay adds that it is likely that the son born from the levirate marriage will be called so-and-so son of (the deceased) so-and-so, and thus every time that the son is
95 His approval was attached to the aforementioned judgment of the Rabbinical Court in Ashkelon (supra, n.93). 96 29 at 49. 97 See supra, n.29 at 56. 98 It is notable that the regulations for in vitro fertilization determine that no use shall be made of an ovum taken from a deceased married woman (reg. 10a). Regarding an ovum taken from an unmarried woman who died, the regulation stipulates that it not be implanted in another woman unless the donor gave her explicit agreement (reg. 10d). Justice Mazuz noted the gap b of sperm from the deceased and these regulations, and concluded that considering that gap, and lacking appropriate legislation, the use of sperm from the deceased should be limited to his partner alone (see above, note 29, p. 100). But even according to his ruling, a gap remains between the possibility of using the sperm of the deceased and that of fertilization of the ovum from a deceased woman. 99 Cf. Yael Hashiloni-Dolev and Zvi Triger, supra, n.13 at 673, 687. 100 A. Kleinberg, Al ahavat em ve al mora av: mabat a er al-hamishpa a (Tel Aviv, 2004), 205-206. 101 See supra, n.78 at 615-616.
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memory perpetuated.102 However, the Sages did not think that the child born needed to carry the name of the deceased. In their opinion the injunction concerned inheritance. The Talmud says in this context:
-born that she bears shall succeed in the name (Deut. 25:6) for inheritance. You say: for inheritance, or only for a name? Joseph
name shall be yours; they shall be called after the name of their brethren in their inheritance Gen. 48:6), the name mentioned there means inheritance, here too the name mentioned refers to inheritance.103
The talmudic passage goes on to determine that it is not the son who inherits the deceased, but the brother-in-law. As it says in the Tosefta -in-law to wife 104 Despite this interpretation of the Sages that ignores the plain sense of Scripture,105 it is impossible to ignore the essence of the injunction of levirate marriage in the Torah, which is to create continuity for the deceased. Ramban refers to the words of Onan we saw would not hav 106 Similarly, R. Shabbetai Bas (Poland, 17th-18th centuries) as if the deceased were his father, and that is why the Scripture says raise seed for our brother and not a name for 107 This view of the injunction of levirate marriage is indeed subject to criticism for expressing a patriarchal attitude. However, this critique ignores the essence of the injunction that may be deduced from the Book of Ruth. In fact, the word yibbum does not appear in Ruth.108 However, the story of the relationship between Boaz and Ruth expresses the spirit of the commandment of levirate marriage. It speaks of a relative who marries a woman whose husband died without having children. Not only that, but moreover it tells
102 Ibid., 619. He points out (ibid., 616), that in genealogical lists the son is called differently, as may be seen in Gen. 26:12 and Ruth 4:12 and 21. Yair Zakovitch writes that biological paternity is paternity for the purpose of lineage, but for inheritance and property the deceased is considered the father of the newborn (Y. Zakovitch, Ruth Miqra le-Yisrael (Tel Aviv, 1990), 111). 103 Yeb. 24a. 104 Tosefta Yeb. (ed. Lieberman) 6:3. However, according to Rabbi Judah, if the father of the deceased is still alive, he inherits the property, but if the father is no longer alive, it is divided between the brothers (ibid.). 105 The Talmud does no Scripture is never removed from its plain meaning, here an inference drawn from identical words in two Yeb. 24a). Indeed, Rashi, in his commentary
Gen. 38:8) and Ramban (ad loc clarification of Rabbi Shabbetai Bas regarding Rashi. 106 Gen. 38:8. 107 , Gen. 38:8, num. 50. In his opinion, that is the meaning of what Rashi says, cf. supra n. 105. 108 rate marriage there [in Ruth Deut. 25:5). However it seems that his strident remarks were made as a polemic against the Karaites who sought to deduce from the Book of Ruth that the commandment of l those to whom the widow was forbidden (cf. Gan Eden, Seder Nashim, Chs. 13 and 30, and also Aderet Eliyahu, Nashim, Ch. 5)
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Ruth 4:6). The language is reminiscent of the refusal of nd Judah said to Onan: Go raise up seed to your brother. And Onan knew that the seed would not be his; and it came to pass, when he went
Gen. 38:8-9). Josephus saw109 in taking off the sandal of the relative who refused Ruth 4:5) the act of removing the his shoe from off his foot, and spit before him and say: So shall it be done unto the man Deut. 25:9).110 After the refusal of the relative the wife of Machlon, as my wife, so as to perpetuate the name of the deceased upon his estate, that the name of the deceased may not disappear from among his kinsmen and from Ruth 4:10). This is precisely the succeed in the name of the brother that is dead, that his name b (Deut. 25:6).111 Yair Zakovitch explains that Scripture expresses maintaining the name of the deceased Machlon, by means of comparing his name to that of his brother, Kilyon, whose memory disappeared [kalah] from the world because he did not merit maintaining his name by means of the levirate marriage of his widow.112 Moreover, the matter of levirate marriage in the Book of Ruth is not confined to raising a name for the deceased, but also includes the redemption of his relations who were left without progeny. The book describes the relationship between Boaz and Ruth as a
Ruth 3:9). Aviad Kleinberg writes about him redeeming kinsman a term used with regard to redeeming land giving it the meaning of brother-in- 113 Moreover, the Book of Ruth describes the redemption not only of Ruth, the widow, but also of Naomi, the mother of the deceased husband:
And the women said to Naomi, Blessed be the Lord, who has not withheld a redeemer from you today! May his name be perpetuated in Israel! He will renew your life and sustain your old age, for he is born of your daughter-in-law, who loves you and is better to you than seven sons. Naomi took the child and held it to her bosom. She became its foster mother (Ruth 4:14-16).
109Josephus, Antiquities of the Jews, 5:9, 4. 110In fact, according to the Torah, the act of release exempts execution of the commandment of levirate marriage, but in the Book of Ruth, according to Josephus, it enabled Boaz to carry out the act of levirate marriage. Regarding that, see below. Moreover, the matter of spitting at the person who refused to execute the commandment of levirate marriage is not mentioned in Ruth assumption that the close redeemer is the one who pulled off his shoe was no Who gave to whom? Boaz gave it to the redeemer. Rabbi the remarks o marriage is in fact decisive that the redeemer is the one who pulled off his shoe the owner of the rights transferred his rights to the purchaser (supra, n.102 at 22, 108). 111Ramban deduced from this comparison that the son need not be called by the name of the deceased, since Ruth Commentary on the Torah, Gen. 38:8). 112 Supra, n.102, at 109. 113 Cf. supra, n.100, at 206.
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Thus, the Book of Ruth expresses a concept of levirate marriage that is not patriarchal. Levirate marriage was meant to restore the relatives of the deceased and provide a renewal of the family and its continuity.114 Considering that, it is understandable why in the Book of Ruth the injunction of the Torah does not come down to the brother of the deceased taking the widow, but there is a search for another relative to redeem the wife of the deceased and even his mother.115 The act of release described in the Torah as an alternative to levirate marriage is transformed in Ruth according to Josephus into an act that enables levirate marriage by a different relative of the family, more distant from the deceased than a brother. Aviad Kleinberg writes:
Naomi refers to the laws of levirate marriage not as a legal system meant to preserve the name of the sons, but as a legal means to protect widowed women.116
As mentioned, Naomi, the mother of the deceased is also redeemed by this expansion of the injunction of levirate marriage. The child born to her daughter-in-law was her redeemer in the sense of providing continuity for her deceased son. In the Book of Ruth, it neighbors gave Ruth 4:17). R. Meir Libush Weizer (Ukraine, 19th century) even child as is known in the institution of levirate marriage he is the deceased himself and he is 117 Thus, the restoration of the family of both the mother and the widow together was done by means of creating a continuation of the son-husband who died. lived in a patriarchal world and did what they did because the possibility of rising on their own to a new life was very limited. By fulfilling levirate marriage they insured their ossibility 118 From what the women said, it seems that what Naomi did
impossible to ignore not withheld a redeemer from you today! May his name be perpetuated in Israel Ruth 4:14), and the injunction of levirate marriage in Deut., according to which the child who is born shall succeed in the name of his brother that is dead; that his name be not blotted out
114 Avishalom Westreich (supra, n,46, at 15), who does not refer to the critique of levirate marriage as being Deut. also entails a the deceased was intended to preserve his memory and even lead to his redemption in the world of the dead (cf. Miqra le-Israel, supra n.78, at 619). Thus the relative who took precedence over Boaz refused to carry Ruth 4:6), i.e., he did not want to cause the perpetuation of the deceased by means of preserving his property together with his own. It should be noted that even without levirate marriage the properties of the deceased would have remained within the family by means of their transfer to family heirs. It is levirate marriage, according to the Sages, that leads to transfer of property to the brother-in-law. See above the opinion of Rabbi Judah regarding this (supra, n.104). 115 -in-law to join her so that she would remain with him in the house as she was with her fir Deut he widow in the event that the brother refuses to uphold it. Abravanel indeed emphasizes that the purpose of the commandment of the Torah of maintaining a name for the deceased can only be obtained by his brothers ibid 116 Cf. supra, n.100, at 206. 117 Commentary of Malbim, Ruth 4:14. 118 Supra, n.13, at 687.
Shapira: Taking Sperm from the Deceased 41 of Israel (Deut. 25:6). The son born to Ruth, whose name is called in Israel, prevented the Israel. And thus, Ibn Ezra elucidates the because 119 It should be noted that in court rulings that approve the use of the sperm of the deceased, the value of perpetuating the deceased and creating continuity for his life that was cut short is expressed on the one hand, and on the other hand so is concern for those left by the deceased the lonely mother left without offspring or anyone to rely on, the parents left without their son and the spouse who lost her mate. However the decisions rely on the injunction of levirate marriage only in order to justify the basic interest of creating continuity of the deceased and not for rehabilitating his relatives.120 In the guidelines of the Attorney General, levirate marriage is mentioned only in order to provide a basis for the value of desire for continuity.121 This despite the fact that the Book of Ruth stresses that levirate marriage is meant to rehabilitate remaining members of the family. In support of posthumous reproduction, the benefit to the family inherent in levirate marriage should be asserted. It is expresses their desire, and even their need, to bring a child into the world. Indeed, in the Book of Ruth which tells the story of the mother of the deceased and his wife who wanted levirate marriage to be carried out, the restorative aspect is stressed as a result of carrying out the extended interpretation of levirate marriage. This in distinction from levirate marriage as stipulated in the Torah, which imposes on the brother of the deceased the obligation to observe the commandment of the levirate, and in its context stresses only the continuity of the deceased but expresses no concern for relatives. One may object that in the biblical injunction of levirate marriage the child is meant to be born to parents who will take care of him, as is indeed described in the Book of Ruth, but in using the sperm of the deceased the child will be born, in most cases, to a single mother. It is noteworthy that the injunction in the Torah differs from the Hindu laws of Manu,122 according to which a relative of the deceased was meant to unite with his widow, but only temporarily until a child is born.123 The Torah, in contrast, instructs the brother and the widow to form a family unit into which the child who will carry the name of the deceased will be born. Nonetheless, as we shall see below, the phenomenon of single women, without a partner, who want to give birth, is prevalent in modern society without relation to the use of sperm from the deceased. That being the case, there is an advantage for these women to be fertilized by the sperm of a deceased man who is known, so that the child born will know the identity of his/her father and have the benefit of a paternal family in the form of grandparents and other relatives.124 Moreover, judges considering requests to use the sperm of the deceased do usually investigate the welfare of the future child, and even call in the prospective mother to examine her relations with the parents of the deceased.125 In any case, this last discussion raises a broader methodological question in Jewish law. Having reviewed and analyzed the biblical law of levirate marriage and the traditional Jewish interpretations thereof, we must examine whether the intention of the
119 Ibn Ezra on Ruth 4:14. 120 Cf. the decision by Supreme Court Justice Hanan Melzer, supra, n.43. 121 Para.4 of the guideline. 122 According to various researchers, these laws were put down in writing between the third century BCE and the first century CE. 123 Cf. Tigay, Miqra le-Yisrael, supra, n.78, at 621. Evidently this regulation resulted from the fact that according to the laws of Manu the widow was forbidden to remarry. 124 Cf. the remarks of Judge Esperanza Alon regarding this, supra, n.20. 125 Cf. for example the ruling of Judge Kimmelman (above note 16) which describes an examination of the
42 JLAS XXIX: The Impact of Science, Technology, and Knowledge commandment of levirate marriage plays any role in the contemporary halakhic decisions in this context. In order to examine that question, I begin with halakhic decisions that take a different position than the one I am offering in this article.
F. Halakhic Rulings that Object to the Use of Sperm from the Deceased According to R. Yigal Shafran,126 Jewish law does not permit extracting sperm from a dead man, because it is an abuse of his corpse. In his opinion, the corpse of the dead may be tampered with only for the purpose of saving life, and it is forbidden for relatives to abuse the corpse of their relative even if the loss is apparent. In addition to the prohibition of extracting sperm, it is also prohibited to use the sperm since that would be gaining benefit from a dead corpse.127 He insists that the desire of the petitioner to bring forth offspring, even if she be the wife of the deceased, cannot allow the use of his sperm because she could do so in a different way. In his opinion, if sperm is extracted from the body of the deceased, it should be buried. R. Shafran does not differentiate between the various methods of producing the sperm: electric shock in the stage of brain death, extraction from the sperm duct within six hours of death, or amputation of a testicle at a later stage. His sweeping remarks are not simple in any way. In so far as the value of maintaining a name for the deceased who died without issue is recognized, the obstacles mentioned by R. Shafran regarding use of the perm should be reconsidered, at least with regards to producing sperm by electric shock or extraction. When the sperm is to be used for the benefit of the deceased, it is neither abuse nor exploitation. In fact, R. Prof. Avraham Steinberg writes forcefull benefit from the dead, but this is for the benefit of the dead the extraction of sperm is carried out for the 128 Beyond that, R. Isser Yehuda Unterman (Chief Rabbi of Israel, 1964-1972) ruled that estimation of the will of the deceased neutralizes the prohibition of abusing the corpse.129 He passed down such an opinion with regards to removing a cornea for transplantation. R. Prof. ar to be all the more so in the case of extracting sperm 130 Even the somewhat stricter decisors among the lenient decisors merely maintain that no sweeping assumptions should be made regarding the will of the deceased, but every case should be examined on its own merits.131 also states this nuance. One the one hand, the essential deliberation is in the context of use of the sperm of the deceased, but its extraction does not abuse the honor of the dead. Therefore, due to the urgency of carrying out the procedure, a policy of leniency should be practiced in this context.132
126 Rabbi Y. 20 (2000), 347-352 [Hebrew]. Cf. Weinrot, supra, n.1. 127Cf. Maimonides, Laws of Mourning, 14:21. 128 Rabbi Prof. A. in 32 (2012), 354 [Hebrew]. 129 Rabbi I.Y. Unterman, Shevet mi-Yehuda, Part I, p. 321. 130 Steinberg (supra, n.128). 131 Rabbi Moshe Erenreich and Rabbi Yosef Carmel, Responsa Be-Marah ha-Bazaq, Part V, num. 103. 132 the requests should generally be approved. This policy is necessary due to the urgency of carrying out the procedure and the fear that not carrying it out at the requested time will lead to irreversible results because the vitality of sperm cells is limited to only a few hours. Consequently, denying the authorization to extract the sperm in this primary stage, or giving it only after the aforementioned span of time has passed, will endanger the continuation of the entire process. The essence of the matter is the use of the sperm extracted, and the main decision regarding this will be made by the court in the stage of deliberation on the request to use the sperm. Extracting the sperm is a procedure which, in many cases, can be performed without harming human dignity or respect for the deceased, and does not remo
Shapira: Taking Sperm from the Deceased 43 that when the procedure involves surgery, it comes under the rubric, prime facie, of the Law of Anatomy and Pathology, 1953.133 In accordance with para. 6a of the Law of Anatomy, such a procedure requires the agreement of the spouse of the deceased and the lack of objection by a family member to perform the requested procedure. Regarding the prohibition of benefitting from the dead, which R. Shafran raised, R. Unterman determined that the organs of the dead are forbidden for benefit as long as they are in a condition of death, but when they can be revived by connecting them to a living
134 Kings, Ch. 4): Did they not have to bury him? Similarly, 135 This assertion about the revival of organs of the dead applies all the more so in our case, in which the seed of the deceased becomes a living body. It should also be stressed that sperm is not an organ that requires burial and R. Dichovsky (former rabbinic judge of the great Rabbinical Court) wrote136 137 be done at all, neither with regards to the widow nor with regards to an unmarried woman is an act that creates chaos in the classic family structure and the future status of the offspring. This 138 R. Dov Lior139 is not in the spirit of Judaism for a woman to become pregnant by these means and the child 140 R. Asher Weiss,141 the halakhic advisor of the Shaare Zedek Medical Center, Jerusalem, also objects in principle to the use of sperm from the deceased. He addressed the request of parents to use the sperm from their son, a bachelor who died from cancer. in to R. Weiss, the parents are not obliged to fulfill the request, since the commandment to fulfill the words of the dead applies only to instructions of the deceased regarding his financial matters.142 parents that they have no obligation to act accordingly, even though that was the wish of their son. The will of our holy Torah is stronger and eternal, and they have to rise above 143 R. Weiss also opposes the view that posthumous reproduction fulfills the commandment to be fruitful and multiply. He explains that when a person dies,
Guideline [supra, n. 2], para. 23.) 133 Ibid., para. 25 (b). 134 Shevet Miyehuda, supra, n.129, 314. 135 Ibid., 322. 136 Rabbi S. Dichovsky, ASSIA 20 (2006), 75. 137 B.K. 47a; Hull. 113b, 116b; Bekh. 7b. 138 Supra, n.126, at 351. 139 Devar Hevron, Even ha Ezer Ve oshen Mishpat (Kiryat Arba, 2005), 21-22, num.4. 140 Gynecology, Genetics, Fertility and Obstetrics (Jerusalem: The Religious Council of Jerusalem, 2000), 61-62 [Hebrew]. 141 Beit Hillel 10 (2002), 73-74 [Hebrew]. 142 He cites Rabbi Shimon ben Zemah Duran, who writes (Tashbez, vol. II, num.53) that a person in the hour of his death is neither a prophet nor a king, nor a prince, who can command others to do his will, and the commandment to fulfill the wishes of the dying is a part of the laws of estates and pertains to use of the money of the deceased. 143 Supra, n.139, at 22.
44 JLAS XXIX: The Impact of Science, Technology, and Knowledge he is exempt from commandments and one does not fulfill commandments posthumously. commandment to be fruitful and multiply. According to R. Asher Weiss accepting the request not only would not fulfill a commandment, it would also have been a violation of a prohibition. Certainly, if the woman fertilized is a married woman, and even if she is single. He explains his position:
This fertilization is not realistic at all regards unmarried woman with a God-fearing, observant of the Torah and commandments, and even among secular women it is not common for an unmarried woman to want to become pregnant, except in promiscuous circles, where they throw off all yoke and want to conceive and give birth and raise children without the obligations and ties of married life and parenthood, and thus it is likely that if they indeed bring forth offspring, this son will not be observant of the Torah and commandments, and what merit does a man for all these reasons it seems that the aforementioned request should not be fulfilled let the matter be silenced, not raised and not done.144
In the opinion of R. Weiss, the social way of life expressed in the act of using the sperm of the deceased is objectionable, i.e. having children outside marriage. In fact, he forbids the which he objects. R. Weiss objects so strongly to this phenomenon that it appears from his words that his verdict includes even a case in which a married man gave instruction that his wife would use his sperm posthumously, and even when there is no suspicion that the offspring will not be observant of the Torah and commandments, because it seems to encourage conception without fatherhood. These remarks by R. Weiss provoked severe criticism. R. Dr. Mordechai Halperin, who is also a physician engaged in issues of fertility, writes categorically against R. to receive a sperm donation:
And in fact the reality about which the learned authority writes is not the reality that I know from my work. Unfortunately there are unmarried women who are close to the end of their period of fertility without a realistic prospect for a bridegroom, and in their great desire to give birth to a child, to raise him and gain someone on whom to rely, they request artificial insemination from a donor before it is too late. These are both secular women, who are not promiscuous (because the promiscuous have no need for artificial insemination) and also, unfortunately, women observant
which I know at first hand.145
ing ruling prohibiting the use of the life, but realizing that her biological clock is ticking and time is running out and a woman who rejects totally the halakhic parameters of family and marriage; and for a widow who
144 Beit Hillel, supra, n.141, 74. 145 Beit Hillel Halperin and H. Safrai (eds.), Nashim be-Diyyun Hilkhati (Jerusalem: Urim, 1998), 45-72 [Hebrew]; idem, http://www.old.kolech.org.il/maamar/%D7%94%D7%90%D7%9D [Hebrew].
Shapira: Taking Sperm from the Deceased 45 wants to receive the sperm of her deceased husband clearly there is a will to extend the 146 ty of the secular, who knows who his offspring will be? And it is known that King Hezekiah was blamed for not wanting to engage in reproduction because he had a revelation that he would
147 R. Weiss, for his part, adds and explains that the commandment of levirate marriage has no pertinence to the use of sperm from the deceased:
I am ignorant and do not understand: Was the commandment of levirate marriage 148 On the contrary its roots are in the highest of the high, and it is a Scriptural decree, Nefesh ha- ayyim, the end of ch. 1). And especially regarding this commandment the words of the Holy Zohar are known that it contains sublime secrets, and this is not the place to expand on that.149
In contrast, we pointed out above that the author of Sefer ha- inukh explains that the reason for the commandment of levirate marriage150 is to create a child who is connected to the deceased biologically. From the discussion in the Zohar, one may learn that the purpose of levirate marriage is to raise offspring for the deceased from his very essence.151 R. Yaakov Ariel who, as mentioned above, also opposed the use of sperm from the deceased offers an additional critical argument.152 He sees in the commandment of levirate marriage itself obstacles to such a practice. According to most decisors, insemination of the widow by the sperm of the deceased exempts her from the obligation of levirate marriage. Meaning, she is seve According to other decisors, it does not exempt her from the obligation of levirate marriage. Meaning, she still requires formal release ( aliza). This raises the concern, on the one hand, that the inseminated widow may be exempted erroneously from the obligation of levirate marriage and allowed to marry anyone without release. It raises the concern, on the other hand, that if the widow of the deceased does marry his brother and another woman is subsequently f declared mamzerim ( ) 153 Consequently, in his opinion one should not rely on the value reflected in the commandment of levirate marriage. Rather, one should take care lest a halakhic mishap result due to different positions regarding the application of levirate marriage. It is worth remembering, however,
146 Joel Wolowelsky, Beit Hillel, supra, n.145, 95. 147 Beit Hillel Ber. 10a. 148 149 Beit Hillel, supra, n.141. 150 Supra, n.79. 151 Supra, n.80. Cf. a similar response by the editor of the journal, Rabbi Y.M. Yona, Beit Hillel 10, 74. Cf. andment,
Beit Hillel 11 (2002), 97.) 152 Cf. supra, n.140, at 58-62. 153 According to the Talmud (Yeb. on of the deceased dies the widow is still exempt from levirate marriage. And cf. below, n.177.
46 JLAS XXIX: The Impact of Science, Technology, and Knowledge that we already saw that R. Ariel objects in principle to childbirth without fathers.154 Such principled objection affects how much one suspects that either of the just described scenarios cannot be avoided. Earlier, we noted that R. Dov Lior has reservations155 regarding posthumous reproduction, even if the deceased willed it explicitly. This was due to his concern for the fate of the child to be born without a father. His student, anan Shani, offered another the need to recognize the finality of death. These are his words:
and let the body rest in peace. While still alive a person has a certain right to
his death -breath returns Eccl. 12:7).156
Interestingly enough such an approach was expressed from a very secular point of view by Prof. Ruth Landau. She writes:
Medical technology enables the birth of planned orphans. The very decision to give birth to a planned orphan reflects a lack of acceptance of the finality of death and a wish for the continuity of the deceased.157
This position, however, does not rest well with the views above regarding the essence of the commandment of levirate marriage. According to which the purpose of the commandment is to maintain in some sense the existence of the deceased. With this, we have closed the review and analysis of those halakhic positions that forbid insemination from a dead person. Now, we turn to discuss the other halakhic positions. They reject this approach and do permit posthumous reproduction.
G. Halakhic Rulings that Permit Posthumous Reproduction R. Zalman Nehemiah Goldberg, a former judge in the Great Rabbinical Court, was asked if it is permissible to extract sperm from the deceased in order to fertilize his wife so that he will leave a memory in the world.158 Contrary to the halakhic positions mentioned heretofore, he s agreement of the deceased, the act is forbidden of course. But if there is explicit agreement or even a presumption that such was his will name and a memory in the world, as one may deduce from the affair R. Goldberg concludes from the commandment of levirate marriage that one should respond to the will of the deceased in this matter. However, in the Torah, the commandment of levirate marriage is not conditioned on the will of the deceased, and expresses
154 Cf. supra, n.140. 155 Cf. supra, n.139. 156 Alonei Mamre 120 (2007), 71 [Hebrew]. 157 in R. Cohen-Almagor (ed.), Dilemmas in Medical Ethics (Tel Aviv: Van Leer Institute and Hakibbutz Hameuhad, 2002), 220 [Hebrew]. 158 ASSIA 17 (1999), 47.
Shapira: Taking Sperm from the Deceased 47
Book of Ruth expands the interest of the commandment of levirate marriage to include rehabilitation of the relatives of the deceased by virtue of the continuation of his name. R. Meir Mazuz, the Head of Yeshivat Kisse Rachamim, indeed allowed use of the sperm of the deceased, recognizing the interest of maintaining the name of the deceased. He writes: t to ensure that a descendant will be born to the deceased and according to most of the halakhic authorities, the offspring refers to the 159 However, he does not relate this relatives. R. Mordechai Halperin160 also takes the approach of most decisors,161 that one born from posthumous insemination is considered the son of the sperm donor for all intents and purposes.162 In his opinion, facing the possibility that the son will provide merit for his dead fat (Sanh. 104a), one who aids to bring about a son for the deceased, does him a favor. This favor is not by creating continuity for the deceased in this world, but the redemption of the deceased in the world beyond by means of the son who will be born. I should point out that in the opinion of various researchers the view at the basis of this position was not accepted in the Jewish world in all times. According to Prof. E.E. Urbach, the concept of the redemption of the dead by the living came to be accepted in the Jewish world only after the Bar Kochba rebellion.163 However, according to Prof. Gedalya Alon, among the sages of the Mishna and Talmud the idea that a son could save his father from the judgment of the world to come was not prevalent.164 One should take into consideration that in the Babylonian Talmud it says that a son can save his father so that he not be listed among those who have no place in the world to come. However, it does not say that a son can
Ta-Shma the concept of redemption of the dead by the living was only introduced into Judaism in the tenth century.165 R. Zalman N. Goldberg asserted his ruling in response to a question regarding the use of the sperm of the deceased in order to fertilize his wife. From his responsum it appears that even if the deceased were a bachelor regarding whom one could presume that his will was for his sperm to be used it would be permissible. In fact, Rabbis Mazuz and Halperin write that they do not find a reason to forbid insemination of an unmarried woman by
159 Eretz Ephraim, Even ha- -6, num.27. And that is also the categorical conclusion of Rabbi Ephraim Rachamim Cohen (ibid child [is] consider 160 ASSIA 20 (2006), 113- Beit Hillel 9 (2002), 54 [Hebrew]. 161 Noam: Bama le- -halakha 1 (1958), 155 [Hebrew]. Cf. ibid., Rabbi Yisrael Zeev Minzberg (transcription of oral remarks), 129 [Hebrew]. 162 Regarding both forbidden relations and regarding lineage and inheritance. Cf. M. Wygoda, chnological inheritance (2017), 83-98 [Hebrew] (accessible at www.justice.gov.il/Units/MishpatIvri/.../48%20yerusha%20technologit-5.doc). Interestingly, according to the civil law in the U.S.A, the recognition of a posthumously conceived child as the son or daughter of the deceased may prove problematic; in some states, a child born after a certain period of time following the Astrue v. Capato, 566 U.S. 541, 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012); Finley v. Astrue, 372 Ark. 103, 104, 270 S.W.3d 849, 850 (2008); , 493 Mich. 70, 72, 825 N.W.2d 566, 567 (2012). 163 Mi olamam shel hakhamim qovets me qarim (Jerusalem: Magnes Press, 2002), 253 [Hebrew]. 164 G. Alon, Studies in Jewish History in the Period of the Second Temple, the Mishna and Talmud, Vol. 2 (Tel Aviv, 1958), 100-101 [Hebrew]. 165 I. Ta- Tarbiz 53 (1984), 560, reprinted with minor addenda in his book: Minhag Ashkenaz haqadmon (Jerusalem, 1992), 299-310 [Hebrew].
48 JLAS XXIX: The Impact of Science, Technology, and Knowledge
perm. R. Halperin points out that also women observant of the Gen. 30:1), and they seek someone on whom to rely in their old age. By fertilizing them with the sperm of the deceased, the suspicion that a brother will marry a sister, a problem that exists in the case of anonymous donors, is resolved, and there is no reason to forbid it. I might add that from a human perspective this alternative is preferable to anonymous fertilization from the sperm bank. In this case, the identity of the father would be known to the child who is born, means of an anonymous donation from the sperm bank, the father is unidentified and the child will have no paternal relatives.166 The parents whose son left them a letter requesting the use of his sperm relied on the ruling by R. Mazuz and R. Halperin, and three years later twins were born, a boy and a girl. A source who knows the family reported that there is a good relationship between the mother and the twins and the paternal grandparents. In the opinion of R. Avigdor Nebenzahl, the deceased fulfilled in this way the commandment to be fruitful and multiply.167 R. Halperin, who also brought up this issue, elucidated it saying that it is so because the sperm was extracted in his lifetime.168 Some go further and say that the birth of twins, a boy and a girl, confirm the accuracy of that approach, since it has been ruled that in order to fulfill the commandment to be fruitful and multiply, a person should bring about the birth of a son and a daughter,169 but meaning, a halachic position cannot be determined by the deeds of God. Some authorities write that even if the child born is not recognized as the son of the deceased for all intents and purposes, he does exempt the widow from the commandment
Yeb. concerning him 170 At any rate, according to those who rule that the child born from the sperm of the deceased is recognized as the offspring of the deceased
166 According to Rabbis Mazuz and Halperin, even a married woman may be fertilized using the sperm of the deceased (who was not her husband), and there is no fear of mamzerut (illegitimacy). In this matter they rely on the position of Rabbi M. Feinstein (Igrot Moshe, Even ha ezer I, nums.10 and 71; II, num.18) and the position of Rabbi Ovadia Yosef ( , VIII, num. 21, end of para.4) that the law of mamzerut is derived from performance of a transgression, which does not pertain to fertilization. Rabbi Mazuz writes that that is also the opinion of Rabbi Yosef Shalom Elyashiv and Rabbi Bezalel Zolty. 167 School of Jewish Studies, Touro College, 2006), 112-113, 157 [Hebrew]. 168 Rabbi Halperin (Beit Hillel commandment to be fruitful and multiply, but also extraction of sperm for the sake of reproduction is
owever, later on he expresses reservations about this approach since there is no direct connection between the act performed in his lifetime and the result of the birth of children, and consequently it cannot be regarded as fulfilling the commandment to be fruitful and multiply. Others, however, maintain that the deceased from whom the sperm was extracted in his life does fulfill the commandment in this way because the child born will be attributed to him (Cf. Responsa Eretz Ephraim, supra, n.144, at 191-192). 169 But a daughter, and if he has a male and a female he has fulfilled the commandment to be fruitful and multiply. And we learn from the creation of the world that the Holy One Blessed Be He created a male and a female, and they are Adam and Eve (Arukh ha-shulhan, Even ha- ezer, num.1, para.15). 170 Bama le- -halakha 1 (1958), 118 [Hebrew]. He relied on the position of Rabbi David Pardo (Italy, 18th century) in his work Hasdei David (T. Yeb. 8:2); and on the position of Rabbi Shlomo Cohen (head of the rabbinical court, Vilna, 19th century) in his work Hesheq Shlomo (Yeb. 10a, incipit belo).
Shapira: Taking Sperm from the Deceased 49 for all intents and purposes, clearly it is reasonable to rule that such a child exempts the widow from the requirement of levirate marriage.171 This, in accordance with the ruling by R. Yitzhak Minkowsky (Lithuania, 18th century), author of Qeren Orah in the end 172 R. Yitzhak Schmelkes (Galicia, 19th century) also asserted that if the deceased has a son who inherits from him, levirate marriage is not 173 He relies in -born that she bears shall succeed in the name Deut. 25:6) for inheritance 174 Some authorities could she need levirate marriage? The Torah says: Deut. 25:5-6) he whose name is blotted out. That excludes one whose name is 175 Thus, R. Dov Menachem Regensburg (a Polish Rosh Yeshiva killed by the Nazis), determines that a son who was born from the sperm of the deceased exempts the widow from the commandment of levirate marriage. He expresses categorically:
and here the name succeeds and is not blotted out.176
Other Halachic authorities came to the same conclusion concerning the status of the child177 but they declined to free the widow from levirate marriage.178
171 Cf. the remarks of Rabbi Halperin, supra, n.168, 55. And also: Tradition 49 (2016), 86. 172 Qeren Orah, Yeb. Vehalo din Accordingly, he rules that even if the sperm was absorbed in
Westreich, supra n.46, at 13-14. 173 Responsa Beit Yitzhak, Even Ha ezer II, num.104. 174 Cf. supra, n.103. 175 R. Avraham David Horowitz (a judge in the rabbinical court of the Ultra-Orthodox and head of the rabbinical court of Strasbourg, 20-21st century), Qinyan Torah be-halakha, IV, 267, num.136. This ruling was in the context of a case in which the sperm was extracted from the deceased in his lifetime. However, Rabbi Horowitz takes exception from doing so (ibid., 266) and even if it was done, he asserts that there is room to suspect that the insemination was not performed using the sperm of the deceased ibid., 268). Therefore, in his opinion, the widow does require release and the status of the newborn is that of shtuqi (a child of whom the identity of the father is unknown) (ibid.). 176 Rabbi D.M. Regensburg, Mazkeret Hayyim, cited in Halakha u-refua,Volume 4, ed. Rabbi M. Hershler (Jerusalem, 1985), 28. Rabbi Yosef Shalom Elyashiv goes even further and writes that if a husband left his
rning him Yebamot 35b). And if so, even in this - ezer, num.90). And cf. Rabbi Prof. J.D. Bleich, supra n.171, at 76-89. 177 That is the opinion of Rabbi M.Y. Zweig, the Chief Rabbi of Antwerp and head of the rabbinical court there in the twentieth century, who writes that the child born is the son of the deceased for all intents and purposes even for the matter of levirate marriage (Ohel Moshe, III, 35, num.10, para.24. However, in consideration of the position of his ancestor, author of the Turei Zahav [Rabbi David Halevy Segal], who cast doubt on whether the child is considered the son of the donor of the sperm, Rabbi Zweig required release). And similarly, Rabbi Yair Hadad writes (Devarecha Yair, II, 205, num.32). Contrary to these positions, Rabbi Yehezkel Landau (Prague, 18th century), writes that the moment of death is the determinant Responsa Noda be-Yehuda, first edition, Even ha- ezer, num.69). Accordingly Rabbi Dov Lior rules (supra n.139) that an infant born from the sperm of the deceased does not exempt the widow from levirate marriage. The author of Qeren Orah (supra n. 172) disagrees with the position of Rabbi Yehezkel Landau and even this last authority
I say 178 Rabbi S.Z. Auerbach (supra n.161), writes that even if the child was born from the sperm of the deceased,
50 JLAS XXIX: The Impact of Science, Technology, and Knowledge
H. Widow Parents I did not find any concrete reference among halakhic authorities to the situation in which there is a disagreement between the widow of the deceased and his parents regarding the use of his sperm. According to Prof. Shalom Rosenberg if the relations between the deceased and his wife were not harmoni
179 The meaning of this principle is that halakhah does not permit behavior of a person that is harmful to another, when there is no significant fertilized, it will not cause any damage to the widow, and it is not unlikely that her behavior is motivated by revenge against her deceased husband and even against his family.180 R. Yuval Cherlow objects to this argument, because, in his opinion, it is not clear that possible that forcing a person after his death to father children (presuming that they will be attributed to him), and also bringing children into the world who are not part of a normative relationship 181 182 the position of the widow should be preferred because obeying it is part of the covenant of
id not make a covenant with the child to have children, and consequently their status is like that of a stranger, but the widow did make a covenant that allows her to fulfill it even after his death. It should be noted that both Prof. Rosenberg and R. Cherlow presume that according to halakhah the widow is entitled to be fertilized by the sperm of her deceased husband. Their disagreement is over the question whether his parents should be allowed to use their even objects to it. R. Avraham Stav disagrees with this assumption;183 lasts only as long as her husband is alive. However, with the death of the husband, when
Lev link that exists only in life, and not aft 184 185 On the contrary, in his opinion,186 the Torah teaches that a father is obliged to make a name for his deceased son, as Judah turned to his living son wife and do your duty by her as a brother-in-law, and provide offspring for your brother (Gen deceased should be preferred to the position of the widow who refuses to have it done.
he does not exempt [the widow] from the commandment of levirate marriage, since it is a matter of intercourse, as is written [he (Deut. 25:5). 179 B.B. 12b. 180 Maqor Rishon, Musaf Shabbat, 5 May 2017 [Hebrew]. 181 Rosenberg he Maqor Rishon, Musaf Shabbat, 23 May 2017. 182 YNET Judaism, 19 June 2017. 183 ASSIA 27 (2017), 102-110. 184 Ibid., 109. 185 Ibid. 186 Ibid., 107.
Shapira: Taking Sperm from the Deceased 51 sperm, and the parents object to it, her request should be granted unless the parents can prove that their son did not want to beget children with that woman. These last remarks the widow has no status with respect to her husband. This situation, in which t
Danziger and Meni Mazuz, on the one hand, and the interests derived from the biblical injunction of levirate marriage and the positions of various halakhic authorities on the other. According to the guideline and the rulings of the Supreme Court justices above, the interest to use the sperm of the deceased is to fulfill the right of the partner to be fertilized by her deceased partner, whom she joined to have a life together and raise a family. sperm. Conversely, according to the injunction of levirate marriage and the positions of halakhic authorities, the purpose is to perpetuate the name of the deceased. Therefore, if he did not have offspring and in so far as it turns out that to have children was the will of the deceased in his lifetime, it should be permitted to use his sperm even without his widow and against her objection. The request does not even have to originate from the parents.187
I. Grandparents as Parents There is one last fascinating question to consider. Is a request of the parents of the halakhically meaningful? As mentioned above,188 the District Court rejected such a request because the interest in using the sperm of the deceased is to fulfill the desire of the partner recognized in the biblical injunction of levirate marriage and in various halakhic rulings is the perpetuation of the deceased. As mentioned, the Book of Ruth even expands the interest of the commandment of levirate marriage to include rehabilitation of the relatives of the deceased by virtue of the continuation of his name. These interests, of continuation of the deceased and rehabilitation of his relatives, could also be fulfilled by the parents of the deceased raising his offspring. In fact, the Book of Ruth describes sympathetically a case that goes even further. It says that the son born to Ruth was raised by Naomi as her son:
Naomi took the child and held it to her bosom. She became his foster mother and the women neighbors gave him a name, saying: a son is born to Naomi (Ruth 4:16- 17).
Some interpret these verses as saying that Naomi took the child and raised him as his by comparison to various scriptural passages in which the term foster parent (omen) is used: your bosom as a nurse [omen Num omen]
187 As Ynet Judaism, 20 June 2017 [Hebrew], in 182). In his article he draws a conclusion from the status of the family regarding the burial of corpse or a surgical procedure regarding use of the sperm of the deceased, but his conclusions may be questioned. Prima facie, the question of use of the ce with the assumption of his will. 188 Supra, n.57.
52 JLAS XXIX: The Impact of Science, Technology, and Knowledge to Hadassah that is, Esther (Esth. 2:7). In these examples the omen is a parent or a foster parent. Thus, the child who was born in order to perpetuate the name of the deceased is raised by the mother-in-law of
It should since his father was not her son. Moreover, it is unclear whether the original intent in the Book of Ruth al intent may have been for the child to grow up with his mother and father Ruth and Boaz, and he was transferred only after his birth for a reason not cited in Scripture to Naomi the mother-in-law of his mother. Perhaps the plain meaning of the text is that only after the concluded that Naomi became the mother of the child, since the foster mother here may be the one who takes care of him, but did not adopt him. He explains that Scripture wants to stress the special relationship that developed between Naomi and the boy, expressing that his birth constituted compensation for her suffering.189 According to him, the words of the and no more than that. According to these analyses, we cannot see in the Book of Ruth a proof text that recognizes creating describes the birth of a child meant to be raised by his own parents. Nonetheless, I would note that the story does not express any opposition on the part of Ruth to the taking of the child by Naomi, and this may indicate that this was agreed upon in advance, explicitly or in the Bible in which this expression is used, and the comparison of the description of holding the child in the bosom to its other mentions in the Bible, as well as the words of the women neighbors, indicate that this is not just a relationship of closeness. From a halakhic perspective, one may raise the concern that sperm from the deceased may be used only if it conforms to his presumed will. One seemingly must clarify
Moreover, having his biological child raised by his grandparents will harm his welfare. One may opine that even if the case in the Book of Ruth indicates that this is a beneficial act, it may have suited the atmosphere of those days but would not necessarily suit modern life. In that context I should point out that R. Yitzhak Zilberstein,190 the son-in-law of R. Elyashiv and one of the leading decisors in the ultra-Orthodox world, discussed the question of a mother who was widowed and wanted to go back with her infant child to her their soul, and they find in him consolation for their loss, and without this child they fear for their lives, and as Scripture says the boy is not with us, he will die (Gen. 44:31) . He was asked whether it was appropriate for the mother to leave the child with the grandparents in order to restore their soul and in order not to take him abroad out of the Land of Israel, or should the widow take the infant with her. The infant was still nursing, and it was suggested to find a wet nurse for him. R. Zilberstein is not categorical in his response and writes:
If the grandfather and grandmother raise the infant, perhaps the matter is similar and close to the relations of a mother somewhat like a mother, and the matter requires further investigation.
189 Supra n.102, at 114; idem, Olam ha-Tanakh Megillot (Tel Aviv, 1994), 102. 190 Hishuqei Hemed, Ket. 60a.
Shapira: Taking Sperm from the Deceased 53
To consider another case, R. Zilberstein was asked a parallel question regarding a case in which the father of a family died, leaving a widow and a ten-year-old daughter, and the parents of the deceased very much wanted to raise the girl in order to find comfort for the loss of their son. Was it still better to have the mother raise the girl, or could she abrogate her right and leave the child with her grandparents? He writes similarly to the above:
It is possible that if the grandmother will educate her to be God-fearing and raise her in the way of the daughters of Israel, and she will learn well to refrain from promiscuity, there is no reason to object to the girl being raised by her grandparents (Ibid.).
To these responsa, I would add a famous midrash:
From to me (Gen. 48:5), and were they his sons? And they were the sons of his sons, but to teach 191
Admittedly, these responsa and this midrash do not deal with the question of choosing to give birth to a child who will be born in complicated circumstances. The responsa merely deal with an already existing situation. Nevertheless, the option of grandparents raising a child rather than the surviving mother is not negated in the responsa. The midrash even compares every case should be examined on its own merits while examining in depth the welfare of the child, who will be born into complicated circumstances.
J. Conclusion commandment of levirate marriage that seeks to maintain a name for the deceased, as Boaz perpetuate the name of the deceased upon his estate, that the name of the deceased may not disappear fr Ruth 4:10). Indeed, Jeffrey Tigay explains that the purpose of the commandment of levirate marriage is to maintain the name of the deceased, and it reflects a belief that death is not the finite en 192 basic idea in Scripture.193 father dies, it is as if he were still alive, for he has left a copy of himse (30:4).194 Such are the words of the woman from Tekoa who turned to King David requesting that he prevent the retribution against her only remaining son, who murdered Thus they would quench the last ember remaining to me, and leave my husband without name or remnant upon the earth Sam. 14:7). In the opinion of some halakhic authorities this is the root of the commandment to be fruitful and multiply
191 Pirqei de-Rabbi Eliezer (ed. Higger), Ch. 35. 192 Miqra Leyisrael, supra n.78, at 619. 193 Supra n.102, at 106. 194 M.Z. Segal emphasizes traditional Biblical Sefer Ben Sira ha-shalem (Jerusalem, 1933), Introduction, XXII [Hebrew]).
54 JLAS XXIX: The Impact of Science, Technology, and Knowledge concern that a person should leave his name and memory in the world after his death.195 In fact a Supreme Court Justice196 approved the use of sperm from the deceased, relying, among other factors, on the commandment to be fruitful and multiply,197 and also on the desire to give birth to children and for continuity in the stories of the Patriarchs and Gen. 30:1).198 A different judge199 Gen. 15:2).200 It seems that it is not for naught that the Hebrew terms for offspring are zera (seed) and shem (name), terms that express continuity. Yair Zakovitch indicates that the concept that the offspring are the name of the dead is a basic idea in Scripture.201 The child that was a redeemer for Naomi without whom she would have remained without offspring. This approach finds an extreme expression in a Zohar orld, when he leaves the world he does not adhere to the holy name and does not enter the place of the divine 202 This classic Jewish ethos apparently203 was among the decisive factors that led, as rulings by Family Courts, which tended to accept petitions to use the sperm of deceased relatives. They also had the rehabilitation of family members in mind as expressed in the Book of Ruth. Thus, we have before us a fascinating example of the power of basic Jewish ethos the influence of meta-halakha on Israeli law.204 In fact, although the Supreme Court restrained the tendency of the Family Courts and determined that preference should be given to the position of the partner over that of the parents, legal policy in Israel sperm much more than is accepted in the world at large.205 the possibility of its continuation through his offspring while also redeeming his relatives, should lead halakhic consensus to support the use of sperm from the deceased in cases where the deceased left no offspring after him and when such a procedure conforms to his will. This should be done out of recognition of the religious and humane value of perpetuating the name of the deceased and thereby rehabilitating his relatives.
195 be fruitful and multiply is also in order to leave a memory of a man after his death, that his seed will not , VI, Even ha ezer the meaning of the language of the Torah in the commandment of levirate marriage (Responsa Yabi a Omer, VII, Even ha ezer, num.2). 196 Cf. text at supra n.42. 197 Family Court Judge Arnon Kimmelman also relied on that ruling (supra n.16, at 19). 198 In fact, this verse teaches about the desire for children in the course of life. And compare supra n.16, at 10. 199 Cf. supra n.22, at 12. 200 Cf. the remarks by Hashiloni and Triger regarding gender aspects of the desire for a child, supra n.13, at 675-676. 201 Cf. supra n.102, at 106. 202 Zohar I, Bereshit, 48a. 203 -evolutionary will of the individual for
204 mily, in the context of the use of new fertility technologies in Jewish society in Israel (S.M. Kahn, Reproducing Jews: A Cultural Account of Assisted Conception in Israel (Durham, NC: Duke University Press, 2000)). 205 Cf. supra n.13. As mentioned supra n.97, Justice H. Melzer attributes this to unique socio-historical circumstances that the Jewish people experienced.
Shapira: Taking Sperm from the Deceased 55
To conclude with a paraphrase of the words of Sefer ha- inukh mercy, we can maintain a name literally and figuratively - born that she bears shall succeed in the name of his brother that is dead; that his name be