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).
The 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.
These 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.
What 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.
We 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.
By 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'.