Showing one’s daughter a picture of daddy, who died before she was born – years before – may seem like a scene from a sci-fi romantic comedy, but it actually happens in real life. A recent article in the Atlantic tells the story of Ms. Liat Malka of Ashkelon, Israel, a single woman, who has done this. In her case, she chose a donor who donated sperm just prior to his death from cancer, but it is also possible to extract it from a dead man’s testicles.

The daughter, Shira, “has grown up seeing this man smiling back at her with a wide grin and kind, bespectacled eyes,” the article says. “When she was younger, she called him by his first name, Baruch. Recently, Malka has been trying to get her to call him Daddy. ‘Look how nicely he smiles. That’s Daddy,’ says Malka, gently, as they stand in front of the photo.”

Leaving aside the question of whether a parent who has been dead from the get-go might be viewed as having done a better job than a live one, this so-called “posthumous reproduction” scenario has raised ethical issues. The Israeli government funds and controls access to assisted reproduction, and currently all women up to age 45 are eligible for unlimited funding for up to two babies, and for procedures using genetic material from deceased spouses. “Things get blurry, however, when the deceased’s parents request posthumous reproduction in order to create a living descendant,” the article says. “In such instances, the courts decide on a case-by-case basis.” Legal experts and rabbis have voiced concerns that posthumous reproduction violates the rights of the unborn child.

In Malka’s case, she considered using an anonymous donor through a sperm bank, but was unhappy with the idea that her child would only know her side of the family. Moreover, she was worried that in such a small country as Israel, her child might end up unintentionally partnering with a half-sibling. Eventually she came across a video on YouTube, made by Baruch’s parents, describing how he had frozen some of his sperm days before dying of cancer and, pursuant to his “biological will,” he hoped a woman would someday be inseminated with it. So Malka met the parents and signed a contract saying she would use Baruch’s sperm to get pregnant, and they could visit the resulting child at least every three weeks. Malka has come to love them, and view them as family.

One remarkable posthumous reproduction case made headlines after a young (and childless) Israeli soldier, Sergeant Keivan Cohen, was killed in 2002, prompting his mother to start a ten-year quest to use his sperm to impregnate a woman of her family’s choosing. In 2007 the court determined that Cohen had indeed wanted children, although he never left his will in writing and did not know the woman whom his parents would choose to raise his child. In November 2013, 11 years after Cohen’s death, a baby girl was born to a single mother, and was made his legal heir.

Ruth Landau, a social-work expert from the Hebrew University of Jerusalem, has reportedly posed this question: is it ethical to create a child as “the means for fulfilling the wishes of an adult, in any way possible, and at any cost?” In 2017, in a case where the parties wanted to use their deceased son’s sperm to create a child whom they would raise as their own, the court acknowledged the “presumed will” of the deceased, and the desire of the parties to fulfill their son’s wishes, but ruled that they did not have the right to the sperm, and permitting posthumous reproduction in this case could cause potential harm to the child. Joseph Schenker, the president of the International Academy of Human Reproduction, reportedly commended the decision because it prevented “planned orphanhood.”

Sperm retrieval, in cases where the donor is on life support, is accomplished with an electric shock which causes ejaculation. If the donor is dead, doctors can insert a needle into the testicles to retrieve sperm.

What are your thoughts on this?

For advice on family law issues and fertility law issues, contact Shirley Levitan.