Dead Son’s Sperm in Israel

By Attorney Gregg Herman
June 23, 2014

The following story was forwarded to me by my friend, Professor Charles Kindregan of Suffolk University Law School, about a decision by an Israeli court.

I have mixed reactions to this.  On the one hand, I don’t see much difference for the child between an anonymous donor and fertilization based on a “biological will”.  OTOH, for some reason, this makes me rather squeamish.  I’m not sure why.  So, I’d be interested in any comments and if appropriate, will publish and discuss them in a followup blog:

After a five-year legal struggle, the state has withdrawn its opposition to a couple who wishes to use their dead son’s sperm to bring a child into the world with a woman they have chosen for the purpose, even though their son never knew her. The couple’s son, who suffered from a serious illness, asked in his will that his parents bring a child of his into the world after his death. In her position on the case, which was heard in the Hadera Family Court, the Haifa district prosecutor wrote,  In a case in which the deceased wanted his sperm to be used after his death and instructed that if he had no partner, his parents should have power of attorney to use his frozen sperm … it appears that there is no legal obstacle to using the frozen sperm.
Although the legal establishment has allowed this procedure to be carried out for years, the state’s change of attitude constitutes a precedent that will affect many similar cases. In addition, the precedent-setting ruling grants legitimacy to the act of having a child via a sperm donor, as opposed to the prevailing method in which the donor is anonymous.
Fertilization based on a biological will “ the desire of a man or woman without a partner to have offspring from their frozen sperm or ova under their parents sponsorship” has existed in Israel for more than a decade. The idea came into being in Israel about 15 years ago through the personal initiative of attorney Irit Rosenblum, who even trademarked it worldwide. In 2005, she established the Biological Will Bank, which contains the reproductive material of about 1,000 men and women. Approximately 100 families are in various stages of the procedure, and four children have been born in this manner since 2001.
Other countries have adopted the biological will, but it was not accepted in Israel and parents of deceased children were not recognized as having the legal right to carry it out. They had to wait for a court ruling that instructed the state “ in whose institutions the reproductive material had been deposited for safekeeping ” to allow them to carry out the procedure.

In the wake of the first petition that we won, the state prosecution issued instructions for using the sperm of the deceased, Rosenblum said.  The instructions stated that parents had no legal status, and the state used them in its line of defense against their appeals. I am glad that this is finally changing.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.