Q&A: Bringing a Child into the World from the Sperm of a Fallen IDF Soldier
Bringing a Child into the World from the Sperm of a Fallen IDF Soldier
Question
Hello Rabbi,
Recently an article was published on the matter in which the court ruled that the fallen soldier’s mother is not entitled to bring a child into the world from her son’s sperm. I wanted to ask you how, in your opinion, one should decide an issue like this, and what considerations stand behind such a ruling.
Best regards,
Answer
It is indeed a difficult question. I do not know all the details, nor have I read the reasoning of the court’s ruling. Therefore I cannot say anything fully formed here, but I will write a few very brief remarks and some lines for discussion as an initial reflection.
First, it seems to me that the discussion should be divided into the moral and the legal. The question of what is morally right and the question of what the law says are different questions. Presumably the court dealt with the second and not the first. Still, if the law allows several possibilities, there is room to let the court make the decision on moral grounds. I do not know whether, when the conclusion is that the law has nothing to say on the matter, a moral dispute can be resolved at all. Might-makes-right? In whose possession is the sperm?
As for the question itself, one should distinguish between the question of rights over a person’s sperm and the question whether there is any barrier to making use of it.
A. The question of rights: Does it pass to his heirs? Is there ownership here? Of what kind? To whom? Does the deceased owner of the sperm have rights to determine what will be done with it? [In parentheses: is ownership of sperm ownership of the information embedded in it, or of the physical sperm itself? What would happen if someone duplicated the information in the sperm cells and created an identical but different cell, with the same information? Regarding ownership of information, see my article in Techumin 25, and also here on the site about copyright and intellectual property.]
B. Is there any barrier: even if nobody has rights, the sperm is still presumably ownerless, and perhaps anyone who takes possession of it may use it, and nobody can prevent him from doing so.
And beyond all this there is the question of the child’s welfare. Will a child born this way suffer, such that it would be better for him not to have been born? Is such a consideration legitimate at all, and who is supposed to make it (the court, the grandparents, the mother)? It seems to me that this is connected to the question of wrongful life, since one may ask whether the child who is born will be able to sue his grandparents and biological mother for having brought him into the world. See also in my article here. a0
As stated, these are only preliminary lines for discussion. Perhaps I will find time to address this more systematically and in greater detail.
Discussion on Answer
Oren, just as in the past men would give their wives a bill of divorce before going out to war, nowadays they can write what should be done with their sperm if, God forbid,
I haven’t seen anyone compare this matter to levirate marriage. Presumably the whole idea of continuing the seed of someone who has no children is exactly the essence of levirate marriage.
Presumably it’s a commandment from the Torah.
Ofir, that’s not precise at all, because nowadays we do not do levirate marriage, since the purpose of levirate marriage is that the inheritance not pass to another family! And why should the child grow up without a father!
Oren, what about an ordinary fallen soldier? What’s the difference?
I don’t think at all that the goal is the inheritance issue. Rather, it is to establish seed for the brother who died. And that is exactly the issue here.
That is at least the reason in the Torah.
In addition, there is no loss of inheritance anyway. After all, whether the brother has children or only brothers, the inheritance remains in the family.
Ofir, a very interesting comment.
But levirate marriage is done so that there will be offspring who are called by his name. I think that is not the situation here (even if by chance they give the child the family name of the father who fell, because this is not really about the name, as explained in the Talmud).
And in truth one can discuss (though it is not necessarily connected) whether in such a situation the deceased father retroactively fulfills the commandment of being fruitful and multiplying.
Thank you, Rabbi,
The principle of levirate marriage really does seem to be that there should be continuation for that deceased person.
And that is the whole idea of using the sperm in this case; that is really the intention of his parents.
And it is really interesting: if the grandfather raises him and the grandfather has no other relatives,
would that child inherit from him?
There is an argument that this is even stronger than levirate marriage, since this is literally that person’s own sperm.
And clearly, if by choice he had used it for reproduction even with another woman,
he would have been a legal/halakhic heir and continuation.
Am I mistaken?
As for inheritance, even regarding a fetus the Amoraim disputed whether it inherits (whether a fetus is considered something not yet in the world). By logic it seems that something that did not yet exist at the moment of the benefactor’s death—even a fetus—does not inherit according to everyone. That is regarding inheriting from the deceased father.
However, you are speaking about a case where this child from the sperm has already been born and now his grandfather dies (it does not matter whether he raises him or not). Now he is already in the world, and it seems logically that if at the moment of the grandfather’s death he is already in the world, there is room to say that he would inherit from him. Though distinctions can be made, and this is not the place.
And the similarity to levirate marriage also depends on all this, since the question is whether he is truly considered the deceased’s continuation or not.
Interesting,
And the even more interesting thing is that since levirate marriage is a commandment,
if we hold that the main point is the continuation of the deceased’s seed,
and that here there is his continuation,
then presumably it is almost actually a commandment to take the sperm of any person who died without children,
while his wife is still alive, and continue him.
And it’s interesting whether the woman can object. I vaguely remember
that only if the brother does not want to, they make him do halitzah,
but if the woman does not want to, they compel her.
A woman can turn to a religious court and request halitzah rather than levirate marriage (Yevamot 4a). The medieval authorities (Rishonim) disagree whether the religious court can compel the husband to perform halitzah (Rashi and Maimonides) or not (Tosafot). But if the husband died, it certainly seems that the woman can object to bearing a child from his sperm (for no commandment of levirate marriage was said here). That is regarding herself. As for her objecting to another woman doing so—it seems that according to Jewish law there is no basis for that at all.
It is true that no commandment of levirate marriage was stated here, but if the reason for the commandment of levirate marriage is to continue the husband’s seed, and since today we have the ability to do that even after he died, then presumably there is a possibility of fulfilling the reason / the will of God in continuing the seed.
The whole claim is that levirate marriage is only the way to fulfill the reason of continuing the seed. And maybe we can even say that in terms of the reason this is an even more enhanced way than ordinary levirate marriage, a way that simply was not possible in the past.
And a practical question is whether the woman has any halakhic/Jewish interest in becoming pregnant from such sperm?
And in addition, if she became pregnant, would she be exempt from the need for levirate marriage?
An interesting question, but it requires thought and I do not know how to answer it right now.
We’ll have to wait for the next Techumin…
Maybe there is also room to take the deceased’s wishes into account. Just as a deceased person has a right to a good name and that his honor not be harmed, perhaps he also has a right regarding his remembrance in the world (“a son is his father’s leg”). Then perhaps one should assess what the reasonable person would have wanted in this question, that is, whether he would have wanted children to be born to him even though they would not have a father and he would not be able to raise them.