Shira was born in 2015. Her father never met her mother. Her mother never knew her father. Her father had already died when her mother decided to get legal permission to release the cryogenically frozen sperm of a 25-year-old stranger to become the mother of his child. Shira lives in Ashkelon. Shira’s father left a Biological Will. A Biological Will documents the desire of a person to use or dispose of sperm, ova and embryos in case of death, incapacitation or infertility and enables people to have children in ways once inconceivable and illegal.
Inspired by the belief that having children is a human right Biological Wills help families create their biological legacy. At 35 Shira’s mom was informed by her doctor that her ovarian reserve was diminishing. She was already searching sperm banks for a donor, but the anonymity of the process made her uneasy because her child could never come to know the face of the father and risked meeting and unintentionally partnering with a half-sibling later in life.
She decided to wait anxiously for a sperm sample from a deceased man she never met but who did not wish to remain an anonymous father and for him to fertilize her solitary ovum in a hospital petri dish. Her intention was to undergo in-vitro fertilization and pray that the donor sperm would create a viable embryo. Once transferred into her uterus she hoped for a baby. These parents are part of a new ‘alternative family type’ who defy traditional configurations of life.
During the Second Intifada, Staff Sgt Keivan Cohen was shot during a military operation in the Gaza on August 20, 2002. His mother struggled for ten years to use her son’s sperm to impregnate a woman of her family’s choosing. In another case in 2007 the courts determined that Keivan Cohen had, indeed, wanted children, even though he had not left his will in writing and did not know the woman whom his parents would choose to raise his child.
After the 1967 War, the Israeli Demographic Centre was established to augment Jewish birth-rates. This led to the rise of state funded fertility and in-vitro fertilization (IVF) treatments. All women in Israel up to the age of 45 are eligible for unlimited funds for up to two test-tube babies and for procedures using genetic material from deceased spouses. But things become hazy when the parents of deceased persons request posthumous reproduction in order to create a living descendant.
Over the years, legal battles have arisen involving various types of wills, and a spectrum of interested parties. Some jurists and rabbis are concerned that posthumous reproduction violates the rights of the unborn child. Elsewhere on earth the worry is about the lack of adequate state and medical regulation as the procedure begins to gain global traction. Posthumous reproduction raises a wide range of legal and ethical issues that include, inter alia, the ownership of gametes, the inheritance rights and benefits of posthumously conceived children, and the social construction of families. In 2009, a Family Court in Haifa approved the ‘verbal biological will’ of Idan Snir who died of cancer at the age of 22. In 2011, the court recognized the ‘written biological will’ of Baruch Pozniansky, the father of Shira. In November of 2013, a baby girl was born to a single mother eleven years after her father’s death and the child was determined to be his legal heir.
Shira’s mom, Malka, stumbled upon a YouTube video uploaded by Julia and Vlad Pozniansky, the parents of Baruch while they were in the throes of a legal battle to obtain permission to release sperm that their 25-year-old son, Baruch, had cryogenically frozen days before dying from cancer. Baruch’s intention to preserve his sperm and have it used to inseminate a woman was described as a ‘biological will’. Malka met with Baruch’s parents and the three made a contract stipulating Malka’s use of Baruch’s sperm to have a baby. The agreement addressed the complete gamut of problems created by human interaction. After twelve months of bureaucratic delays and legal arguments to decide on the validity of Baruch’s ‘biological will’ the courts gave permission.
A central claim against posthumous reproduction is whether bringing a fatherless or motherless child into the world would harm him or her. Can an adult’s desire to give birth to an orphan have priority over the child’s basic right to two living parents? It is argued that the child may also suffer both economically and emotionally as the child may not be entitled to inherit the estate of the deceased parent and may feel that he or she is a ‘replacement’ for the deceased, serving merely as a ‘memorial’ for a late parent. Consent of the donor is a further ethical dilemma.
Even where implicit consent is not required, there are occasions in which clinicians have refused to perform the procedure on these grounds. If no proof of consent by the donor can be produced, implied consent, often in the form of prior actions, must be evident for clinicians to proceed with the extraction. The emotional, social, ethical, and legal problems rattle philosophers, bioethicist, lawyers, and priests. Some conservative rabbis view posthumous reproduction as a ‘mitzvah’, or good deed, as it allows many men to become a dad after they die.