I am occasionally asked if Jewish
law permits the removal of semen from a deceased man in order for his widow to
bear his child. It is a delicate and sensitive issue and the answer is not
simple. There are arguments both for and against the procedure, involving
halachic, legal and ethical considerations.
1.
Arguments Against Post-Mortem Sperm Retrieval
A. Issur
Nivvul ha-Met
The 613 Torah commandments can be divided into two
cate- gories: those between man and God (ben adam la-maqom) and those
between man and his fellow man (ben adam la-havero). The prohibition
against nivvul ha-met, insulting the dignity of the dead, is a type of
damage and, like all types of damages, falls in the category of commandments
between man and his fellow man[1].
We learn in the Torah that we are required to pay
for damages we cause to others.[2] As long as the
one who incurred the damage does not forgive the one who caused it, the latter
is obligated to pay for the damages, even if he is not being sued. However,
nowhere in the Torah does it explicitly say that causing damage to your fellow
man is forbidden. It is written that if one causes damage he must pay for it,
but it does not say that causing damage in the first place is forbidden.
We learn from the oral Torah (Tora she-be-’al peh) that the source
of the prohibition against causing damage to another person is lo tigzol,
“thou shall not steal.”[3] Inflicting any
sort of damage is considered stealing, as Rabbeinu Yona teaches us: Moshe
received both the written Torah (Tora she-bi-khtav) and the oral Torah,
its explanation, at Sinai. “They were given together because otherwise we would
not be able to understand the written Torah. For example, we are told lo
tigzol, and the oral Torah explains that kol neziqin bi-chlal oto ha-lav
– all damages are included in this prohibition.”[4] The prohibition
is not against having that which you stole, it is against causing damage to the
person you stole it from. All kinds of damages to persons living or dead – nezeq
(damage), tsa’ar (suffering), rippui (medical expenses), shevet
(unemployment), boshet (shame), nivvul ha-met – are included in
the prohibition against stealing. Post- mortem sperm retrieval, if it involves nivvul
ha-met, should therefore be forbidden.
It can be argued conversely, however, that the procedure does not involve
insult to the deceased’s dignity. Rabbi Moshe Feinstein writes that taking a
biopsy from a corpse is not nivvul ha-met. It is performed on the
living, so if performed in the correct, dignified manner it can also be
performed on a corpse.[5]
B. Issur
Hana’a min ha-Met
Post-mortem sperm retrieval seems to fall under the prohibition of hana’a
min ha-met, deriving benefit from a corpse. We learn in the Talmud that
this prohibition, unlike issur nivvul ha-met, belongs in the category of
commandments between man and God.[6]
However, procreation is a mitzva (“be fruitful and multiply”)[7] and therefore
the prohibition of hana’a min ha-met should not apply. The operating
principle here is that mitsvot were not given for us to benefit from (mitsvot
lav lehanot nittenu). The benefit of performing a mitzva and fulfilling
God’s command is not considered a forbidden hana’a.[8] If a widow
wants post-mortem sperm retrieval performed on her deceased husband so she can
fulfill the mitzva of procreation, it is not considered a forbidden hana’a
from the corpse and this argument fails.
Rabbi Issar Yehuda Unterman argues that there is no prohibition of hana’a
min ha-met in corneal transplants because the cornea continues to live in
the body of the recipient and is therefore not considered dead tissue,[9] and Rabbi
Shlomo Zalman Auerbach accep- ted this argument.[10] Perhaps this
argument can also be applied to sperm. If so, there is no hana’a min ha-met
in the case of postmortem sperm retrieval.
There is an ethical question in creating a child without the father’s
consent. It is related to the argument of nivvul ha-met because the
corpse is being touched and its sperm is being taken against its will. This is
a serious type of damage, and it is prohibited.
However, before he dies a man can consent to post-mortem sperm retrieval,
and his consent does not necessarily have to be explicit. If it is known that
he would have wanted the procedure had he been asked, it is as if he gave his
consent.
Halacha takes into consideration what the deceased would have thought
about certain damages caused after his death. There is a dispute in the Mishna
over what should be done with any remaining money that was donated for a
burial.[11] Should it be
distributed among the deceased’s heirs or should a finer headstone be
purchased? Hazal explain that the difference of opinion hinges on
perception of what a normal person would prefer be done after the humiliation
of having his burial paid for by charity.[12] From this we
learn that consent can be determined retroactively, post mortem.
Another argument against post-mortem sperm retrieval is that the child’s
paternity is uncertain. In the case of artificial insemination performed after
the father’s death, there is legal and halachic dis- agreement over whether the
child is considered the deceased’s son.[13] The same
disagreement exists with post-mortem sperm retrieval. In halacha, it is very
important to know who the father is. A divorced or widowed woman, for example,
must wait three months before she can remarry because, should she be pregnant
with her first husband’s child or become pregnant with the second husband’s
child soon after her remarriage, paternity would be uncertain,[14] and this could
lead to the forbidden marriage of a brother to his sister.[15]
However, there is a clear halachic difference between unknown and
uncertain paternity. An illegitimate child whose father is un- known – the
child of a prostitute, for example – is called a shetuqi,[16] but with
post-mortem insemination using frozen sperm or with post-mortem sperm
retrieval, the biological father is known and the controversy over paternity is
strictly legal. Paternity is uncertain, which from the halachic perspective is
totally different from unknown as it cannot accidentally lead to the forbidden
marriage of a brother to his sister.
An often-heard ethical argument against post-mortem sperm retrieval is
that a new heir is being created against the will of the other heirs. If the
inheritance is one million dollars and there are four heirs, each will get two
hundred and fifty thousand dollars. If you then create a fifth heir, each will
get only two hundred thousand dollars. Is this fair?
I did not find a halachic source for this argument, as heirs have no say
in the creation of other heirs. The money does not belong to them until they
acquire it through their father’s death, and until then the father can do what
he likes: he can bequeath the money to someone else – to none of his children –
or he can produce more children. The existing heirs, therefore, cannot object
to the creation of other heirs.
It can be argued that if the heirs receive the inheritance before their
father’s death, post-mortem sperm retrieval could indeed lead to another heir
who will lay claim to a share of the inheritance. Nevertheless, even if the new
heir claims and receives a share, the new apportionment is retroactive, meaning
that what the others had already received was never really theirs.[17]
This argument is very interesting: a widow who wishes to have post-mortem
sperm retrieval performed on her deceased husband is in a state of emotional
distress and her decision might be against her “real” interest. In the future
she will certainly regret her decision.
Does the widow really not know what she wants? What should be considered,
her current or her future state of mind?
Retrospective consent has halachic validity. The daily Temple sacrifices
were bought with the money from terumat ha-lishka, which was raised by
the mahatsit ha-sheqel (half sheqel) that everyone is required to give
each year. There is a general law in the Mishna that a person can be forced to
pay his mahatsit ha-sheqel,[18] but on the
other hand, a person who brings a sacrifice to the Temple must do so of his own
free will – li-retsonchem tizbahu.[19] The question
in Tosefta is how, then, can he be forced to pay his mahatsit
ha-sheqel? Won’t the sacrifice be invalid because the donation was forced?
Tosefta[20] cites Hazal’s
example of a person who has gangrene in his leg and the only way to save his
life is to cut off his leg, but he refuses. The physician ties him up, cuts off
part of his leg, and cures him. Retrospectively, he consents to the amputation.
The same is true with forcing a person to pay his mahatsit ha-sheqel.
When a person brings a sacrifice it brings him closer to God and his sins may
be forgiven; retrospectively, therefore, he will be pleased that he brought the
sacrifice. Thus, retrospective consent is halachically valid and there are
times when we should consider that in the future, consent will be
retrospectively given.
Of course, to circumvent this argument altogether, a one-year minimum can
be set before which insemination of the widow cannot be performed.
G.
Procreation by a Widow: Mar’it Ayin
Another argument against post-mortem sperm retrieval is that it appears
to be immoral – the widow becomes pregnant and gives birth to a child, but she
has no husband – and Hazal were very particular about moral issues of mar’it
ayin.
Beit Hillel rules that a husband is forbidden to be with his wife after
he has written her a get (bill of divorce). The Gemara explains that
Beit Hillel is concerned that the husband and wife will have relations and she
will become pregnant, and there may be consider- able delay between the writing
and the delivery of the get. People might forget about the delay and
think that the date on the get is correct, and therefore assume that the
child is illegitimate,[21] which, as
Rashi adds, is a stigma.[22] However, it
seems that although this argument was behind Beit Hillel’s ruling, there is no
general halachic ban that prohibits similar situations involving stigma.[23]
The natural desire to have children
is strong, and the argument that the world is complicated enough without our
adding complic- ations to it may not carry enough weight to stand up to the legitimacy
halacha grants to the desire for children, as will be seen below.
2.
Arguments for Post-Mortem Sperm Retrieval
A.
Strict Rulings Require Substantiation, Lenient Rulings Do Not
The Mishna emphasizes that only prohibitive, strict rulings require juridical
substantiation while permissive or lenient rulings need no supportive
precedent.[24]
The absence of a prohibiting substan- tiation is equated with halachic
permissibility.[25]
Therefore, if no reason is found in the halachic sources for prohibiting a new
medical technology or procedure, it is permitted.
Invalidating eight arguments
against post-mortem sperm retrieval, however, is not enough to prove that there
is no halachic prohibition against it. An accepted halachic authority must be
consulted.
When faced with uncertainty or insufficient information, one should
indeed be strict, as no special authority is needed to say that something is
prohibited. To establish permissibility, however, the facts must be
unambiguous.[26]
When there is no clear halachic precedent calling for leniency, one must be
thoroughly versed in all the halachic sources before definitely stating that no
halachic reason for pro- hibition exists.
Rabbi Zalman Nehemia Goldberg, a member of the Supreme Rabbinical Court
in Jerusalem, Rabbi Shlomo Zalman Auerbach’s son-in-law, and a great poseq in
his own right, adds a second argument in favor of permitting post-mortem sperm
retrieval.
Rabbi Goldberg was asked by the Israeli Surrogacy Committee if halacha
permits removing of semen from a deceased man in order for his widow bear his
child. His answer, based on the two arguments in the section above, was clear:
“Without the man’s consent it is, of course, forbidden. However, if he gave
explicit consent to post- mortem sperm retrieval or if it is clearly known that
he would have wanted the procedure done, then there is no prohibition against
performing post-mortem sperm retrieval.”[27]
Rabbi Goldberg ruled that the Torah accepts the natural desire for a
descendant as meaningful; this is a partial understanding of the concept of yibbum
(levirate marriage). Adding complications to an already complicated world,
therefore, is an insufficient argument when by “complicating” things you can
help another person.
When I asked Rabbi Goldberg if post-mortem sperm retrieval should be
allowed, he responded, “Why not?” As long as the dec- eased gave his consent,
there is strict supervision ensuring that there will be no mixing of sperm, and
there is documentation of the child’s paternity so that later, when the child
is ready to get married, his legal, halachic father will be known, “under these
circumstances, why should it be forbidden?”
Does the deceased fulfill the mitzva to “be fruitful and multiply” (peru
u-revu) through post-mortem sperm retrieval? On one hand, ba-meitim
hofshi: after a person has died, he has no halachic obligations and can no
longer fulfill mitsvot.[28] On the other
hand, there can be post-mortem acts that are considered the results of actions
performed while still alive – bera mezakkeh abba, for example.[29]
We must clarify what the essence of the mitzva of peru u-revu is:
the act itself (ma’aseh) or the existence of children. Is a ma’aseh
required? Obviously, there cannot be a ma’aseh if the man is no longer
alive.
If a physician removes sperm from a man while he is asleep and
inseminates a woman who subsequently gives birth, is the man considered the
child’s father? If so, has he fulfilled the mitzva of peru u-revu?
Beit Shemuel states that even though there was no ma’aseh
whatsoever, something happened while the man was asleep,[30] the child is
considered his, and he has fulfilled the mitzva. Thus we see that a ma’aseh
is not required to fulfill the mitzva of peru u-revu.
Taz disagrees. According to him, a ma’aseh is probably
required in order to fulfill the mitzva of peru u-revu.[31]
Rabbi Yehiel Ya’akov Weinberg states that a ma’aseh is not
necessary.[32]
One might think, for example, that a convert to Judaism who fathered children before
his conversion has not fulfilled the mitzva of peru u-revu since the
halachic relationship between a convert and his children is broken by the
conversion (ger she-nitgayyer ke-qatan she-nolad dami) and because peru
u-revu was not incumbent on him at the time. Nonetheless, Hazal say
that he is considered as having fulfilled the mitzva, even though there was no
halachic ma’aseh and there is no halachic relationship between him and
his children. This proves that an halachic ma’aseh or halachic relationships
are not required in order to fulfill this mitzva.
Minhat Hinnukh goes even further in proving this point.[33] The mitzva of peru
u-revu is different from many others in that while most mitsvot require a ma’aseh,
the essence of peru u-revu is the existence of children. He brings a
very interesting proof from the Palestinian Talmud: a man who fathered a child
through a prohibited act, for which he will be punished later, is still
considered as having fulfilled the mitzva of peru u-revu.[34] There is a
rule that mitzva ha-ba’a be-’aveira, a mitzva that is performed by doing
something that is forbidden, is invalid and the mitzva has not been fulfilled.
Why, then, can peru u-revu be fulfilled through a prohibited act?
According to Minhat Hinnukh, the answer is that the essence of peru
u-revu is not the ma’aseh, it is the existence of the children.
Another question is whether peru u-revu can be fulfilled after
death. When the deceased has no children but leaves behind a pregnant widow,
for example, at what moment is the mitzva fulfilled? According to Minhat
Hinnukh, when the child is born. The answer, then, is that the deceased has
probably fulfilled the mitzva of peru u-revu.
Without knowing the opinion in Minhat Hinnukh, one might assume
that in the case of artificial insemination, the insemination at least would
have to be performed during the father’s lifetime for the father to have
fulfilled the mitzva. Having learned the Minhat Hinnukh, however, we see
that the ma’aseh is not essential; since the mitzva is to have a child,
the insemination only enables the mitzva (makhshir mitzva). Therefore,
if a widow who was not pregnant at the time of her husband’s death was later
inseminated with sperm he donated (while still alive), becomes pregnant, and
gives birth, her deceased husband should be considered as having fulfilled the
mitzva.
It follows, according to the above principles, that
if a widow becomes pregnant through post-mortem sperm retrieval and gives
birth, her deceased husband can be considered as having fulfilled the mitzva,
even though there might not be any halachic relationship between him and his
offspring.[35]
This is similar to the previous discussion about a convert having fulfilled the
mitzva of peru u-revu even though the halachic relationship between him
and his children is broken by the conversion.
The default position in Jewish law
is permissibility, not pro- hibition. Post-mortem sperm retrieval’s
permissibility depends on two factors. If before his death the man did not
explicitly or implicitly agree to have his semen removed after his death for
his wife to bear his children, then it is strictly forbidden to do so and there
is no halachic dispensation for performing the procedure. Second, if he did
give explicit or implicit consent to the procedure, then the matter may depend
on the different opinions among the poseqim and a qualified halachic
authority must be consulted.
Source: ASSIA
– Jewish Medical Ethics,
Vol. IV, No. 1, February 2001, pp. 9-13
1. Rabbi Yaakov Etlinger, Responsa Binyan Tsiyyon
170, 171. The Gemara in Bava Batra 154b affirms that the prohibition
against nivvul ha-met does not exist if it can prevent the heirs from
holding property that belongs to others. Rabbi Yom Tov Ashbili (Ritva) on Makkot
7a writes that the source of the prohibition against nivvul ha-met is
ve-ahavta le-re’akha kamokha (Leviticus 19:18); see also Sheqalim
2:5, Sanhedrin 48a, and the discussion on the third argument in section
I:C below.
7. Genesis 1:28. There is a dispute among the Tannaim
(Yevamot 6:6) and Amoraim (Yevamot 65b) over whether women
are obligated in this mitzva. Rabbi Yohanan ben Beruqa rules that a woman is
equally obligated in the commandment peru u-revu, according to
the literal meaning of the verse in the Torah. The halacha is not according to
his opinion, however; a woman is not obligated to endanger herself in order to
have children, but if she has done so then a mitzva has been fulfilled. See Iggerot
Moshe, vol. 7 (Even ha-Ezer 4), 29:4 (pp. 59-60).
13. See Rabbi Shaul Israeli, “Paternity in
Artificial Insemination,” Tora she-be’-al Peh 33 (1992): 41-46.
17. In fact, Rabbi Israeli ruled that new heir will
not receive any part of the inheritance if the insemination was performed after
the father’s death (op. cit.).
22. A similar argument is brought in the name of R.
Shlomo Zalman Auerbach against artificial insemination by a donor (AID) for an
unmarried woman. See Nishmat Avraham, vol. 4 (Even ha-Ezer),
1, note 3.
25. Tiferet Israel, Yadayyim, 4:3; R.
Elhanan Bunem Wassermann, Qovets He’arot, Yevamot 87b, sect. 67
(550).
27. His response (December 9, 1998) was published
in Assia 65-66 (1999): 45-49. He added that there must be supervision
ensuring that there will be no mixing of sperm and that there should be valid
documentation of the child’s paternity so that later, when he or she is ready
to get married, the legal, halachic father will be known. Nevertheless, Rabbi
Yehoshua Y. Neuwirth has a different opinion on this subject, which he
mentioned to the author (without any additional discussion) in February 1999.
Nine months later, Rabbi Neuwirth elaborated on his opinion in a personal
conversation with the author. He may be willing to accept post-mortem sperm
retrieval only if it is done in order to inseminate the deceased’s legal widow.
See also note 22 above.
35. Rabbi Israeli, notes 13, 17 above.
Nevertheless, a careful study of Rabbi Israeli’s Talmudic source may lead to a
conclusion somewhat different than his. Rabbi Israeli showed that a child
created through post-mortem insemination does not receive any part of the
inheritance and does not free his mother from the mitzva of yibbum (if
the father died childless and left behind a brother). However, there is no
proof that such a child has no halachic relationship to his father. For
example, if the father was a cohen, there is no proof that such a child is not
a cohen. Similarly, such a child is not allowed to marry his father’s
first-degree relatives, in contrast to what might be concluded from Rabbi
Israeli’s essay. A comprehensive discussion on this subject is beyond the scope
of this article.