Israel's attorney general, Elyakim Rubinstein, has issued formal regulations that will allow the removal of sperm from a man's body at the request of his wife or common law wife.
His decision results from a series of eight cases in which bereaved wives had filed urgent requests in the courts to allow their husbands' semen to be removed within hours of death so that it could be frozen and used to impregnate them. In all the cases the judges made a decision, in the absence of legislation, according to their individual understanding of the case.
Under the new regulations the woman, who may be a wife or common law wife, must obtain the permission of a court to use the frozen semen, and the regulations are such that her request is likely to be granted.
Figure 1.
Diane Blood with her children Liam, 4, and Joel, 7 months. Ms Blood had to go abroad to use her dead husband's sperm
Credit: JOHNNY GREEN/PA
The new situation in Israel is in direct contrast to the situation in the United Kingdom, where the law says a man's sperm can be used after his death only if he had given clear permission for its use before he died. It was as a result of that law that Diane Blood had to fight to use her dead husband's sperm to become pregnant. The Court of Appeal ruled in 1997 that the taking and storing of semen from the unconscious Stephen Blood had been illegal but gave permission for her to be inseminated in another European country (BMJ 1997;314: 4619056791).
There are several reasons why the attorney general has issued his regulations. Having children has high importance in Judaism and in Israeli society. Most people—especially men—want their genes and name to be passed on.
Because sperm lose their motility within hours of a man's death, it will now be enough to get signatures from two senior doctors for sperm to be removed by suction. Permission for the procedure can be obtained when the man is in a coma or otherwise irreversibly incapacitated. If surgical removal is needed the wife and close relatives must approve, as when organs are removed for transplantation.
Although the dead man's parents can testify in court along with the widow and a social worker, the parents cannot petition for the semen to be removed, as they have no legal status as would be grandparents. Parents of soldiers who are not living with a woman would not be allowed to apply for semen removal for eventual use to produce a grandchild. Dr Mordechai Halperin, the health ministry's chief officer of medical ethics, said: “One would need a good reason to agree to the process, as the baby will be an orphan from the start, and this is not desirable.”
Dr Halperin also said that it would be preferable for a woman not to seek having a baby after her husband's death, but if the man had expressed a favourable view when he was alive that his wife knew about, and she herself wanted to have his baby, this was ethically acceptable. If the man had never raised the topic, Dr Halperin added, the woman must testify that he would have wanted it.
Various legal and child welfare authorities objected to the new rules, arguing that women might be pressured have to bear and raise children against their will.