Q&A: Sperm Retrieved from a Deceased Person
Sperm Retrieved from a Deceased Person
Question
Hello again, Rabbi. With your permission, a question. I am writing a halakhic article (again for an article competition) on the question of what should be done with sperm retrieved from someone after his death. Assuming it is permissible to retrieve sperm after death, and the deceased did not express any view about what should be done with his sperm (as, for example, in the case of Amit Ben Yigal), do you think it is relevant to discuss these laws on the basis of the classic laws of inheritance, so that, for example, the deceased’s parents would have a stronger say than his widow on the question of whether to use the sperm? And if so, would the deceased’s brothers also have a stronger say? That does not sound reasonable… Is there also room to discuss the opposite case: according to those who hold that such a child has no lineage at all, would it follow that in a case where the widow and the parents agree to bring a child into the world from the sperm, in practice they cannot do so, because the child is not attributed to his parents at all?
Answer
Hello,
I have a problem with topics like this because in my opinion it is not really possible to arrive at a well-founded halakhic position on them. One can raise arguments in this direction or that and push them into Jewish law. Notice that you yourself said it “does not sound reasonable,” even though there is an argument here that appears to be halakhic. So you see that in the end, what determines things is what is reasonable.
In general, in my personal opinion, his wife has first rights, since their partnership included, as an essential component, having children together. Therefore, on this specific issue I would not apply the laws of inheritance literally. This is despite the fact that I have written and said more than once that there is ownership of information, and genes are information. But even without the consideration of giving precedence to his wife, I doubt whether inheritance applies to this kind of property, because this is not ownership of an asset but a person’s ownership over himself, and that is not inherited (no one inherits the body of the deceased).
I think what should decide the matter is the best possible assessment of what the deceased himself would have wanted, and if that is unavailable, then what a reasonable person in his situation would have wanted.
Discussion on Answer
Good question, and I am not sure it has an answer. What I meant was that this cannot be conclusively derived from authoritative sources. And even if you find a source, it does not carry much weight, because the Sages did not know modern science.
Still, there is room to formulate Jewish law on the basis of reasoning, and that would be Jewish law. But there is no authoritative institution whose reasoning is binding.
Thank you. Regarding the idea that Jewish law based on reasoning would still be Jewish law—
I assume the reasoning has to connect it to some existing area of Jewish law?
If you meant reasoning on its own, that this is simply how it ought to be—have you written about this somewhere so I could read more?
See my article on the halakhic status of logical reasoning.
If the reasoning interprets some halakha or its application, then the result is Jewish law.
Very interesting. Does “in my opinion it is not really possible to arrive at a well-founded halakhic position on them” mean that there are cases where it is impossible to find in the existing Jewish law information about their halakhic status, or that there are cases about which Jewish law has nothing to say? What you go on to write here afterward—is that reasoning for what the halakhic ruling would be, or is it outside Jewish law?