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 halakhic, legal and ethical considerations.
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-khlal 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
However, procreation is a mitsva ("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 nittnu). The benefit of performing a mitsva and fulfilling G-d'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 mitsva 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 accepted 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.
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.
Halakha 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.
However, there is a clear halakhic difference between unknown and uncertain paternity. An illegitimate child whose father is unknown - 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 halakhic perspective is totally different from unknown as it cannot accidentally lead to the forbidden marriage of a brother to his sister.
I did not find a halakhic 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
Does the widow really not know what she wants? What should be considered, her current or her future state of mind?
Retrospective consent has halakhic 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-retsonkhem 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?
Tosefta20 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 G-d and his sins may be forgiven; retrospectively, therefore, he will be pleased that he brought the sacrifice. Thus, retrospective consent is halakhically 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.
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 considerable 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 halakhic ban that prohibits similar situations involving stigma.23
Invalidating eight arguments against post-mortem sperm retrieval, however, is not enough to prove that there is no halakhic prohibition against it. An accepted halakhic 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 halakhic precedent calling for leniency, one must be thoroughly versed in all the halakhic sources before definitely stating that no halakhic reason for prohibition exists.
Rabbi Goldberg was asked by the Israeli Surrogacy Committee if halakha 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 deceased 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, halakhic father will be known, "under these circumstances, why should it be forbidden?"
We must clarify what the essence of the mitsva 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 mitsva 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 mitsva. Thus we see that a ma'aseh is not required to fulfill the mitsva of peru u-revu.
Taz disagrees. According to him, a ma'aseh is probably required in order to fulfill the mitsva 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 mitsva of peru u-revu since the halakhic 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 mitsva, even though there was no halakhic ma'aseh and there is no halakhic relationship between him and his children. This proves that an halakhic ma'aseh or halakhic relationships are not required in order to fulfill this mitsva.
Minhat Hinnukh goes even further in proving this point.33 The mitsva 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 mitsva of peru u-revu.34 There is a rule that mitsva ha-ba'a be-'aveira, a mitsva that is performed by doing something that is forbidden, is invalid and the mitsva 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 mitsva fulfilled? According to Minhat Hinnukh, when the child is born. The answer, then, is that the deceased has probably fulfilled the mitsva 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 mitsva. Having learned the Minhat Hinnukh, however, we see that the ma'aseh is not essential; since the mitsva is to have a child, the insemination only enables the mitsva (makhshir mitsva). 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 mitsva.
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 mitsva, even though there might not be any halakhic relationship between him and his offspring.35 This is similar to the previous discussion about a convert having fulfilled the mitsva of peru u-revu even though the halakhic relationship between him and his children is broken by the conversion.
1. R. 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. R. 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.
2. Leviticus 24:21.
3. Ibid., 19:13.
4. Rabbenu Yona of Gerona, Avot 1:1.
5. Iggerot Moshe, vol. 5 (Yoreh De'ah 2), 151.
6. Avoda Zara 29b. 13.
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 mitsva. R. 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 halakha 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 mitsva has been fulfilled. See Iggerot Moshe, vol. 7 (Even ha-Ezer 4), 29:4 (pp. 59-60).
8. Eiruvin 31a.
9. Shevet mi-Yehuda, vol. 1, p. 314.
10. Ibid., vol. 3, pp. 403-6; Assia 65-66, p. 162.
11. Sheqalim 2:5.
12. Sanhedrin 48a.
13. See R. Shaul Israeli, "Paternity in Artificial Insemination," Tora she-be'al Peh 33 (1992): 41-46.
14. Yevamot 4:10.
15. Yevamot 42a.
16. Qiddushin 4:1.
17. In fact, R. 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.).
18. Sheqalim 1:3.
29. Leviticus 22:29.
20. Tosefta, Sheqalim 1, 2.
21. Gittin 79b.
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.
23. See Meiri in Beit ha-Bechira on Ketubbot 27b.
24. Yadayyim 4:3.
25. Tiferet Israel, Yadayyim, 4:3; R. Elhanan Bunem Wassermann, Qovets He'arot, Yevamot 87b, sect. 67 (550).
26. Rashi, Beitsa 2b.
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, halakhic father will be known. Nevertheless, R. 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, R. 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.
28. Psalms 88; Shabbat 31a.
29. Sanhedrin 104a.
30. Even ha-Ezer 1:10.
31. Ibid., 1:8.
32. Seridei Eish, vol. 3, responsum 5, p. 15-17.
33. Mitsva 1, sect 8.
34. Yevamot 2:6.
35. R. Israeli, notes 13, 17 above. Nevertheless, a careful study of R. Israeli's Talmudic source may lead to a conclusion somewhat different than his. R. Israeli holds that a child created through post-mortem insemination does not receive any part of the inheritance and does not free his mother from the mitsva of yibbum (if the father died childless and left behind a brother). However, there is no proof that such a child has no halakhic relationship to his father. For example, if the father was a kohen, there is no proof that such a child is not a kohen. Similarly, such a child is not allowed to marry his father's first-degree relatives, in contrast to what should be concluded from R. Israeli's essay. Furthermore, R. Shlomo Zalman Auerbach (Noam vol.1 , p. 155) disagrees with R. Israeli. But a comprehensive discussion on this subject is beyond the scope of this article.