Last month, an Israeli woman gave
birth to a baby conceived from the stored sperm of a man who died of cancer six
years ago. While posthumous reproduction is no longer a new concept, this case
does represent a new frontier.
Although the home of this new mother
is filled with photos of her baby's genetic dad, she has never actually met
him. The baby girl is the result of his parents' desire to create a genetic
grandchild, which they perceive as the dying wish of their deceased son.
While undergoing cancer treatment,
the young man stored his sperm and told his parents that he hoped to become a
parent someday. Following his death, his parents felt that this statement,
coupled with his frozen sperm, constituted sufficient evidence of his wishes, and that it was
now their responsibility to make his wish come true.
They embarked on a search for a
mother for their potential grandchild and found a single woman in her thirties,
who was planning to conceive a child but was reluctant to use an anonymous
donation from a sperm bank (which is currently the only option in Israel). The
two parties approached the New
Family advocacy organisation, founded by Irit Rosenblum, to help them
finalise a contract regulating their relationship. Their appeal to the court to
grant them permission to use the sperm in this way was approved. The court's
approach, as expressed in a similar case, was that this is a 'harmonious coming
together of the interests of all parties involved' (1).
This case is not unique in the
Israeli landscape. Over the past decade, more than ten cases have been presented before
Israeli courts in which parents sought permission to use their deceased son's
sperm to create genetic grandchildren. Two cases in 2001, in which parents asked the court's
permission to retrieve their son's sperm posthumously, led to the Israeli
Attorney General issuing guidelines in 2003 (2) that allowed only spouses
or partners of the deceased to use posthumously retrieved sperm (3).
guidelines allowed such use even in the absence of explicit written consent and
based on a notion of 'presumed consent'. They allowed courts to rely on
testimonies regarding wishes expressed by the deceased to become a father, but
without an explicit reference to becoming a father posthumously. The recent
cases, in which Israeli courts have allowed the use of frozen sperm based on an
agreement between the parents of the deceased and a single woman who never met
him, raise new ethical challenges.
developments are interesting in the backdrop of the current Israeli effort to
create unified legislation in the area of assisted reproduction, based on the
final report of a National Committee that was formed to study its various
aspects. This report takes a more conservative approach than the courts and
supports the 2003 guidelines which preclude parents from the posthumous use of
their son's sperm.
does the future hold for Israeli policy? Only time will tell. In the meantime,
if the courts continue to take a permissive approach, in the absence of legal
prohibition and with the support of New Family, babies will continue to be born
of such agreements.
argue that, providing the deceased left a Biological
Will - a legal tool invented in 2001
by Rosenblum - which includes explicit consent, the permissive approach of the courts is ethically justified and
even commendable. Nowadays, single women who choose to use anonymous sperm donors
are a prevalent social phenomenon. Their children grow up with no access to
their genetic origins. This entails medical risks stemming from knowing only
half of one's family history (4), as well
as issues related to identity formation and psycho-social well-being.
choosing 'a sperm with a past', a woman guarantees her prospective child a
known genetic origin, as well as an opportunity to benefit from the love and
the support of grandparents and an extended family. The child does not 'replace'
the deceased, but she can bring solace and joy to the bereaved grandparents. In the words of
Rosenblum: 'This girl would not bear the onus of
the family's past; she paves the path into the future'. And as the new mother said last week, surrounded by her daughter's excited grandparents: 'this is as
close as it gets to the real thing'.