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Israel: Parents Cannot Use Late Son’s Frozen Sperm Against Widow’s Will

(Jan. 5, 2017) On December 22, 2016, Israel’s Supreme Court accepted an appeal against a decision of the Center-Lod District Court that had declared that half of 19 tubes of frozen sperm extracted from a man shortly after his death upon the request of his widow belonged to his parents. The appeal was lodged by the widow (the appellant), who during the years since the 2004 death of her husband gave birth to two children with a new partner. The appellant named the late husband’s parents, the Attorney General (AG), and the hospital where the tubes were kept as respondents in the case. (Family Appeal 7141/15 Anonymous v. Anonymous (2016 Decision) (Dec. 22, 2016), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew).)

Parties’ Positions 

The appellant argued that her late husband’s parents did not have any legal status regarding the frozen sperm, in accordance with AG Directive No. 1.2202 on post mortem extraction and use of sperm. (Id. ¶ 7; AG Directive No. 1.2202 (Oct. 27, 2003) Ministry of Justice website.) She also asserted that the deceased did not wish to have children whom he could not raise or children born as the result of insemination of another woman. (2016 Decision, ¶ 7.)

The parents asserted that as the appellant did not wish to use the sperm herself, she did not have standing to oppose their request to inseminate another woman with their late son’s sperm. In their view, the AG was the only party who had standing to oppose their request. The AG did not appeal a district court decision to recognize the parents’ ownership of half of the tubes. Moreover, the parents argued that the relevant AG Directive, which does not recognize parents’ rights to determine the use of sperm extracted after a son’s death, did not match changes in the family unit necessitated by modern life. Lastly, the parents asserted, the appellant’s argument that the deceased would not want to have children whom he could not raise did not accord with her consent to extract sperm from his body after his death. (Id. ¶ 8.)

Having objected to the parents’ request in the first instance of adjudication, based on the 2003 Directive, the AG reiterated the general rule that applies under the Directive. According to the AG, the objectives of the 2003 Directive were to respect the will of the deceased and that of his spouse. Therefore, in the absence of a clearly expressed declaration of a deceased husband who was married at the time of his death, it is reasonable to require a higher standard of proof to establish his presumed wish to bring into the world children from his sperm after his death with a woman who was not his spouse. A different rule might apply to a request made by the parents of a person who died without a spouse, the AG stated. (Id. ¶¶ 2 & 9.)

On October 13, 2016, the state filed an amended statement notifying the Court of a memorandum of the Ministry of Health on the Sperm Banks draft law 5777-2016, a preliminary draft of legislation to be submitted to the Knesset (Israel’s parliament) for consideration. The memorandum proposes comprehensive regulation of all the activities undertaken by sperm banks in Israel and includes a chapter on “freezing sperm for future use” as well as a chapter on “extraction and use of the sperm of a deceased person.” (Id. ¶ 14, citing the Sperm Banks Law 5777-2016 Memorandum, available at Israel Government Portal (webcache document).)  According to section 70(2) of the memorandum, in the absence of provisions in writing made by the deceased, “his wife or steady partner alone may become impregnated from the sperm of the deceased or inseminate her eggs with his sperm …. .” (Memorandum, supra.)  The memorandum also provides, “relatives of the deceased, except his wife or steady spouse, will not have any standing regarding extraction or use of his sperm, except if the deceased was not married or did not have a steady partner at the time of his death and only if he instructed so in writing … .” (2016 Decision, ¶ 14, citing the Memorandum.)

The Supreme Court rejected an AG request that the Court refrain from making a determination in the case until the completion of the full legislative process, taking under consideration the amount of time that had already passed in litigating the case, and the “sensitivity of the matter and the importance [of resolving it]… in a timely manner.” (Id. ¶ 15.)

Decision 

Opinion of Justice Esther Hayut with Three Others Concurring

Justice Hayut rejected the parents’ claim of the right to receive and use the sperm based on their right to grandparenthood. Subject to limited exceptions, she noted, grandparents’ rights towards grandchildren are not recognized under Israeli law, as long as the children and their spouses are alive and legally competent. When recognized, grandparents’ rights, such as the right to keep in touch with grandchildren, only exist with regard to grandchildren who are already born. Grandparents’ rights do not extend to the right to demand the birth of grandchildren. (Id. ¶ 22.) These principles, Hayut held, were reflected in the AG Directive. (Id. ¶ 23.)

Hayut then referred to the parents’ claim that they had standing in clarifying their deceased son’s wish to impregnate a woman who was not his spouse based on his right to dignity under Basic Law: Human Dignity and Freedom (SEFER HAHUKIM [Book of Laws, official gazette] 5752 No/ 1931 p. 150, as amended). Hayut noted that with regard to recognizing the presumed wish of the deceased, “Israeli case law and the AG Directive have opened an ‘unpaved road,’” which is almost unparalleled in the world, as in many countries extraction and use of sperm after death is prohibited. (2016 Decision, ¶¶ 24-25.) Reviewing scholarly comments on the ethical issues involved and considering the novelty of the Israeli legal position on this issue, Hayut determined that except for unique cases, which the current case is not considered to be, parents should not have standing in clarifying their deceased son’s wishes if he had a steady life partner. (Id. ¶¶ 25-32.)

Minority Opinion by Justice Hanan Melcer

Objecting to the majority opinion, Justice Melcer opined that in the absence of legislation, the Court must analyze the case in accordance with the provisions of Foundations of Law, 5780-1980, based on case law, analysis, or according to the “principles of liberty, justice, decency and peace of the heritage of Israel.” (Id., Melcer’s opinion, ¶ 2.) Analyzing prior Supreme Court decisions, Melcer concluded that the Court had previously recognized the right to parenthood based on the “need for continuity” that derives from human dignity and liberty. (Id. ¶¶ 5-8.) Where the deceased expressed a wish for realizing a certain right during his lifetime, or where such a wish can be attributed to him, Melcer opined, the Court must protect his right also after death and often even when the deceased’s wish conflicts with that of the living. (Id. ¶ 9.) Melcer’s conclusion is also based on principles derived by analogy with legislation regulating end of life and inheritance (id. ¶¶ 13-16) as well as on Jewish law. (Id. ¶ 18.)