Families Want to Use the Sperm of Their Dead Soldier Sons to Have Babies: Should This Be Allowed?

A baby stroller in Shanghai. Carlos Barria/Reuters

In 2012, 25-year-old Israeli soldier Omri Shahar died in a car accident. Since then, his parents fought for the right to use Omri's sperm, retrieved after his death, to impregnate a surrogate so they can have a grandchild to raise as their own.

According to The Jerusalem Post, the Israeli Supreme Court blocked a lower court's ruling, preventing the Shahars from doing just that.

The legal battle touches on the larger issue of posthumous sperm retrieval, outlined last week in an article in the Post. The issue has particular resonance in Israel, where every person is required to serve in the military. But it touches on ethical dilemmas that have been faced in Australia as well as the U.S.

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The first post-mortem sperm retrieval in the U.S. was performed in the 1970s. There are several procedures that make this possible, as sperm can stay viable more than 30 hours after death, in some cases. But it wasn't until 1999 that the first known child was born from the procedure to Gaby Vernoff. She entered into a legal battle to secure Social Security benefits for her child, whose father was in the military. According to state law at the time in California, where Vernoff's child was born, biological relation was not enough to establish paternity, since Vernoff's husband died before the child's birth.

As Mosaic reports, the legal status of sperm in the U.S. is unsettled, with the courts treating it as they would organ donations in some—but not all—conflicts. As of 2016, the procedure is illegal in Sweden, Germany, France and Canada. Other countries have no laws that dictate how the matter should be handled.

Most of the publicized cases to date deal with female widows who want to impregnate themselves with the sperm of their deceased spouses. What sets these Israeli cases apart is the desire of the would-be fathers' parents to raise the children as their own. As The Jerusalem Post reports, the Israeli Supreme Court also prevented the parents of Shaked Meiri, a soldier who died in 2004, from doing so themselves. Though lower courts ruled in favor Meiri's parents, the Supreme Court sided with Meiri's widow, who did not want his sperm used to father a child by surrogate.

Ethical concerns, of which there are many, aside, one thing is clear: The desire on the part of these men's parents to raise their children stems from a sense of deep grief.

"A branch from our family tree has been cut, and there is nothing we can do about it," Irit Shahar, Omri's mother, told Newsweek. "But because of the new technology, we can make sure new leaves appear. We simply wish for the grandchildren that should have been."