Redefining remembrance: Posthumous sperm retrieval in Israel after 7 October 

Posthumous sperm retrieval is a complex and contentious issue that raises numerous moral, legal, and social concerns. Recent events in Israel, particularly involving posthumous sperm retrieval from soldiers killed on 7 October 2023 and during the subsequent war, amplify this dilemma, prompting a critical examination of the broader implications and societal values at play.

Policies regulating this practice vary across jurisdictions, reflecting a diverse spectrum of normative approaches and cultural values. While certain European jurisdictions, such as France, Germany and Sweden, categorically forbid the procedure, certain jurisdictions in the United States and other countries, such as Canada and the UK, entertain limited allowances, often requiring the express consent of the deceased. Notably, Ukraine recently passed legislation allowing for the posthumous use of previously stored gametes by widowed partners of deceased soldiers, although it does not permit posthumous retrieval of gametes.

Israel stands as an outlier on this issue, embracing a markedly permissive stance, possibly driven by a local culture that places great value on procreation and great importance in honouring the memory and continuity of the deceased, as outlined in Vardit Ravitsky's chapter in the book Bioethics and Biopolitics in Israel: Socio-legal, Political and Empirical Analysis. Israel's policy regarding posthumous sperm retrieval is not codified in legislation, but rather based on guidelines issued by the Attorney General in October 2003. These guidelines permit posthumous gamete retrieval based on a request made by the deceased's female widow and approved by authorised hospital representatives.

Israel's approach, while relatively liberal, is not without its limits. Firstly, Israel's policy grants the right to initiate the retrieval procedure to the deceased's female widow, while expressly denying such right to any other party. Other parties wishing to initiate a retrieval procedure – including the deceased's parents – are required to obtain a court order. Secondly, a court order is required for the use of the retrieved sperm for posthumous fertilisation. Such approval is contingent upon demonstrating the deceased's desire for progeny, whether expressly or indirectly by showing it is implied.

Civil initiatives in Israel, such as the 'biological will' by the New Family Organization, seek to eliminate the ambiguity surrounding the will of fallen soldiers, by enabling them to formally document their wishes for genetic continuation, and to allow their relatives to retrieve and use their sperm posthumously.

Recent developments

The tragic loss of young men and soldiers on 7 October and during the subsequent war has spurred a surge in demand for posthumous sperm retrieval in Israel. Consequently, Israel's policy has undergone a significant shift, with requirements becoming more lenient, positioning the country at an even more extreme point on the spectrum of permissiveness.

One notable development involves revised directives issued by the Israeli Attorney General, allowing parents of fallen soldiers – not only female partners – to directly request the retrieval process from the Ministry of Health or hospital representatives, thereby bypassing the need for a court order. This change of policy resulted in a substantial number of posthumous sperm retrieval cases. According to information provided by the Ministry of Health to the Knesset Health Committee on February 7 2024, since 7 October, posthumous sperm retrieval was successfully conducted on 110 deceased soldiers and 10 deceased civilians. Out of these, 82 requests were made by parents and 28 by partners. However, it is important to recognise that these directives were tailored to address the urgent circumstances following 7 October, including the need for a swift legal response to the significant number of casualties and the limited time available for the procedure (24-72 hours after death), and may therefore have temporary and limited applicability.

Pending legislation in the Knesset (the Israeli parliament) aims to expand and institutionalise this trend. The proposed bill officially grants legal standing to the deceased's parents to initiate the retrieval procedure. Such shift in policy will place Israel in a unique position as the only place in the world where posthumous sperm retrieval can be carried out based on parental request. Moreover, the bill shifts away from retroactive attempts to estimate the deceased's wishes towards more permissive clear-cut decision mechanisms. For instance, it takes an 'opt-out' approach, permitting  the deceased's widow to use the retrieved sperm for fertilisation, unless the deceased expressly objected to such use. It also allows the deceased's parents to proceed with fertilisation independently, in cases where the deceased did not have a female partner or where the widowed partner does not wish to use the retrieved sperm, if the deceased formally expressed a wish for such use and appointed his parents to carry it out. This would entail an agreement with a woman who wishes to have a child using the retrieved sperm.

This shift in policy is attributable in part to Israel's distinctive pro-natalist stance. However, it is hard to isolate it from current events, which have focused public attention on fallen soldiers and the moral debt society owes them and their families. Since 7 October 2023, the bill, which was approved in a preliminary reading in May 2023, has garnered substantial public attention in Israel and is strongly advocated for by families of fallen soldiers and a range of civil organisations.

However, despite the fervent advocacy and favourable public opinion, the proposed bill faces hurdles in being added to Israel's National Code of Laws. It is under intense debate, perceived by some as highly problematic. It stands in tension with Jewish religious perspectives for various reasons, including potential violation of edicts proscribing disrespectful treatment of the dead, especially when the retrieval is done using surgical methods, as well as the complexities it introduces regarding the familial status of future offspring. The widening gap between Halacha (Jewish orthodox law) and Israeli law on this issue underscores the complexity of reconciling religious and secular values, with the Knesset serving as the arena for this conflict, and the future of posthumous reproduction – an important aspect of reproductive autonomy in Israel – at stake.

Ethical, legal, and societal implications

The landscape surrounding posthumous sperm retrieval is rife with questions of an ethical, legal, and social nature. Central to these deliberations is the question of the deceased's autonomy, and the extent to which it should be honoured and integrated into the moral equation. Another pivotal aspect revolves around the scope of the right to genetic continuity and the attempt to determine who should rightfully lay claim to one's genetic material. Additionally, the debate encompasses the potential welfare implications for offspring conceived posthumously, grappling with the concept of being 'orphaned from birth' under the circumstances of conflict and war. Furthermore, the broader societal discourse on distributive justice within the realm of reproduction is paramount. Specifically, does the reverence for fallen soldiers, and the 'moral debt' they are owed by society, warrant 'special privileges' in this domain? These inquiries set the stage for a deeper analysis and exploration of posthumous sperm retrieval and posthumous reproduction in general.