Birth after death: The debate over posthumous reproduction goes beyond fallen soldiers

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In the Israeli consciousness, posthumous reproduction is associated with the death of soldiers and the wish to perpetuate their memory. Since the late 1990s, the courts have dealt with dozens of cases in which widows, as well as bereaved parents and women who did not even know the deceased, sought permission to inseminate the deceased’s person’s sperm, which was collected in his lifetime or extracted after his death. At about that time there were cases of parents who objected to their daughter-in-law’s wish to bring a child into the world using their dead son’s sperm, for fear of economic lawsuits being brought against them. The parents’ petitions were rejected by the High Court of Justice, on the grounds that they had no status in regard to the intimate decisions of their son and his partner, and that their rights did not extend to the right to demand the birth of grandchildren.

Later, there were instances of parents joining the widows’ requests; indeed, in some cases the parents themselves initiated the processes to allow insemination and the birth of a child after their son’s death. Only a small proportion of these cases involved Israel Defense Forces soldiers, and even then the deaths were frequently due to road accidents rather than operational activity. Despite this, it has been the few cases involving soldiers killed in action – such as Kevin Cohen and, more recently, Barel Hadaria Shmueli – that are coloring public discourse on the subject. And every few years such cases attract media attention in tandem with demands to enact legislation sanctioning the use of the sperm of a soldier who is killed to bring children into the world (for example, the 2017 bill regarding use of the sperm of a deceased soldier).

Posthumous reproduction gives rise to two questions. First, whether it can be presumed that every person who dies prematurely would want offspring from their reproductive cells to enter the world. And, second, whether military discourse and the discourse of bereavement in general are even relevant to this whole issue.

In regard to the first question, the controversial cases have been those in which the deceased left no instructions concerning posthumous reproduction. Following guidelines issued by the attorney general in 2003, the assumption is that men’s “presumed wish” would be for sperm to be harvested from their body for the purpose of reproduction.

Israel is a world anomaly in this regard, and it also leads in terms of the many authorizations that have been granted to parents here to use their son’s sperm to produce a grandchild. (Some 20 cases have been published in databases to date but the real number is not known, because the cases are dealt with in camera and publication of the verdict is random – at the judges’ will.) In terms of declared policy and the efforts to enshrine it in law, receptiveness in this country to posthumous reproduction is among the highest in the world, if not the highest.

Studies we have conducted on this subject in recent years trace the cultural logic that underlies Israel’s policy. What makes possible the presumption that men want their seed to be used to bring fatherless offspring into the world? The conventional reasoning is that this is the nature and desire of men as such. Posthumous reproduction preserves the perception of parenthood as genetic, but forgoes the active aspect of it. Those who seek to bring about the birth of genetic offspring from someone who is deceased defy a number of conceptions, including the need for two parents to raise the children, and especially the need for there to be a father (which single mothers defy by choice); the need for having one parent of each sex (which same-sex couples defy); and the distinction between life and death. All of these are erased in the name of the importance of perpetuating the seed, as it were, and encouraging childbirth in Israel.

An IVF Laboratory. The accepted assumption about men’s presumed wish reflects a patriarchal stance that sees women as a conduit for perpetuating the memory of the dead man. AP

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The presumption that the deceased wanted to be a “parent” is based on an approach which maintains that male parenthood (fatherhood) is generally not active parenthood, and certainly not the principal parenthood, and that what is of supreme importance to men is to have their seed used. This is a gendered perception of fatherhood as stemming from a desire for continuity, whereas motherhood is described as deriving from “maternal-therapeutic” instincts. The accepted assumption about men’s presumed wish reflects a patriarchal stance that sees women as a conduit for perpetuating the memory of the dead man. This recalls cultures of the ancient East, which viewed the sperm as the very essence of masculinity and the sole source of life, and the woman and her womb as a sort of “oven” for breeding that nourishes the male seed, like soil.

However, our studies show that not this is not a universally shared approach among men. Indeed, legal battles by genetic fathers against being registered as the father in the Population Registry if there is a suspicion the newborn will be termed a “bastard” according to halakha (religious law); the struggle by divorced fathers to do away with the early-childhood custody granted to mothers and to move to a model of joint custody; parenthood battles by gay people; the quest by non-genetic fathers to be registered as additional fathers in the registry; and cases of men who donated sperm and afterward regretted it – all these attest to the fact that, contrary to the prevailing image of the father in Israeli law as an inactive parent, men espouse a variety of ideas about the desirable aspects of fatherhood.

Interviews we conducted with young men who have female partners but do not have children, revealed a range of views, along with an ambivalent approach by many of them toward the idea of their sperm being used for reproductive purposes should they die. The majority of male respondents maintained that they have no personal interest in perpetuating their seed or indeed about anything that will occur after their death. Their views covered the gamut of objections to posthumous reproduction for a wide variety of reasons, such as the good of the child and including what’s known as “presumed consent” – consent to allow those who are still alive to use the sperm if that will be of benefit to them, but not in order to realize the deceased’s wishes.

In regard to their spouse/partner, many men in our study expressed the wish that if they should die, she should raise a family with another man, and that only if she were unsuccessful in this should she resort to using their sperm, as a single mother. Many of our interviewees expressed revulsion at the very idea of their parents bringing a grandchild into the world with a woman they themselves had not known, viewing this as intervention in matters of sexual intimacy. Many others said they would consent to that procedure but did not express a wish for it, and only a few said they had an interest in posthumous reproduction. These diverse findings show that the assumption of a “presumed wish” is valid only for a minority of men, and is actually a projection of the living onto the dead.

Whereas the female partner’s desire to become pregnant after her beloved’s death has been accepted relatively easily by Israel’s judicial system, parents seeking to become grandparents via their (deceased) sons encountered numerous difficulties. In 2009, the courts for the first time allowed a woman who had been unacquainted with a man who had died from cancer and had frozen his sperm while still alive, to use the sperm to have a child, at the initiative and consent of the deceased’s parents. The judge handed down this decision despite directives issued by the attorney general explicitly barring parental use of the deceased’s sperm and declaring that the right to grandparenthood is nonexistent.

The court ruled that in an era characterized by so-called new families (supporting the rights of any two adult partners of any gender to raising a family), the right of an unmarried man to become a posthumous parent must be recognized, and that he should not suffer discrimination for not having had a female partner. This unprecedented decision opened the door for bringing grandchildren into the world with the aid of a woman who wishes to become a single mother using a deceased man’s sperm – not on the basis of any right to grandparenthood, but by dint of the deceased’s presumed wish. The ruling touched off legal battles over the parents’ status in regard to posthumous reproduction; in some cases, disputes with the deceased’s spouse ensued, which reached the Supreme Court when the wishes of the two sides were incompatible.

The most far-reaching judgments showed a preference for the bereaved parents’ wish over that of the widow, who opposed the insemination of her late husband’s sperm – and also allowed the grandparents to become parents in practice by means of a surrogate mother who would carry their grandchild in her womb, based on the argument that parents do have a right to become grandparents. However, these rulings were overturned by higher instances. By majority opinion, the Supreme Court rejected the competition between the deceased’s parents and the widow, and the argument that the widow had “abandoned” the deceased by refusing to become pregnant from his sperm. The argument based on the deceased’s presumed wish, which had been accepted by lower-level courts, was presented as unfounded speculation. Similarly, the Supreme Court ruled that the right to grandparenthood does not exist and that a woman with whom the deceased had been unacquainted does not have the right to bear a child conceived with his sperm. Despite the Supreme Court’s ruling, it appears that no broad social agreement has crystallized around this subject.

The demand made recently by the parents of soldier Barel Hadaria Shmueli (who was killed in the line of duty) to the effect that the state must allow their son’s sperm to be used in order to produce a grandchild raises the second question mentioned above: In what way are soldiers different from young men who were killed in a road accident, from construction workers who fell to their death, from people who die from an illness, or from young women who died prematurely, whether in the army or in other circumstances? The premature death of young women and men in civilian circumstances is far more widespread than death during military/operational activity, but it does not stir public interest – in the context of posthumous reproduction – like the death of soldiers.

A commonly heard argument is that parents who sent their children into battle deserve to gain “continuity” as part of a procedure of rehabilitation and of coping with grief. What’s interesting is that even conservative communities that object to alternative family frameworks do not necessarily object to posthumous reproduction, even though this is a blatant form of “alternative family.” This approach attests to confusion in the political-cultural struggle between those who support the “traditional family” and advocates of new families.

We suggest abandoning the discussion of the deceased’s presumed wish, and instead positing “presumed consent,” which more faithfully reflects the deceased’s wish, along with admitting that because in most cases there is no way to know what the deceased’s wish is, the decisive wish should be the purview of the living in such matters. We should also be mindful that posthumous reproduction is possible for both women and men who died in civilian life, and not only deal with perpetuation of male seed or, specifically, soldiers’ seed.

In general, this complex subject should be discussed without connection to the army, without discriminating between different types of bereavement and without the rehabilitation of bereaved parents by means of producing grandchildren allowing us to forget the need to do everything to prevent unnecessary killing, in the army, on the roads or at construction sites. It is important to focus the bulk of our attention on the future of the child and his/her good, and to recognize that the discussion must not be allowed to obscure the fact that even though posthumous reproduction is possible – it does not truly triumph over death.

Prof. Hashiloni-Dolev is a sociologist at Ben-Gurion University in Be’er Sheva; Prof. Zvi Triger is an expert in family law from the Striks School of Law, College of Management. They are co-researching the subject of posthumous reproduction.