Israeli couple seek right to use dead son’s sperm / By Harriet Sherwood

Ohad Ben-Yaakov’s parents want legal permission to use sperm taken while 28-year-old was in a coma to produce a grandchild

The parents of an Israeli killed in a workplace accident five months ago are seeking legal permission to use his frozen sperm to produce a grandchild, even though he was not in a relationship.

Ohad Ben-Yaakov, who would have been 28 on Wednesday, left no written indication of his wishes regarding children. But his parents say they want to fulfil his wish to continue the family line. If their legal application succeeds, they will need to find a woman willing to bear their grandchild. They insist they have no wish to raise the child themselves.

Israeli courts, in line with Britain and the US, have allowed the female partners of dead men to use their sperm to create a child, but an application by prospective grandparents is almost unprecedented.

Following the accident last September, Ben-Yaakov was in a coma for two weeks before his death. His parents agreed to donate his organs and won a court’s permission to retrieve sperm which was then frozen.

Mari and Dudi Ben-Yaakov declined to be interviewed but were quoted in Haaretz as saying: “If we were entitled to donate the organs of our son, why are we not entitled to make use of his sperm in order to bring his offspring into the world? This is what he would have wanted.”

The family’s lawyer, Irit Rosenblum, said: “They want to fulfil his last will.” The case was the first in which parents of a dead son were seeking permission to use sperm without first finding a woman willing to bear a child, she added. Until now it had been allowed only if there was a prospective mother.

Rosenblum submitted an application to the attorney-general two days ago. He is obliged to respond within 45 days. If he refuses permission, the parents can take their case to court. “I’m sure we will win in the end, but it will take time,” the lawyer said. According to Danya Cohen of New Family, an Israeli organisation which advocates the rights of every individual to establish a family and which is backing the Ben-Yaakovs’ case, the parents were motivated by a desire to continue the family line. “It’s a natural human impulse,” she said. She knew of no specific religious motivation in this case.If granted permisson, the parents would seek a suitable candidate to bear their son’s child. “They will find interested applicants who want a child as a single parent but don’t want to use an unknown sperm donor and who would welcome the involvement of grandparents,” she said. The Ben-Yaakovs were not looking for a surrogate mother who would hand the baby over to them, she said.

“The mother would raise the child with their support and she would know the identity of her child.”

Grandparents have no legal rights under Israeli law, said Cohen, and the mother would be under no obligation to the grandparents. She did not know whether the Ben-Yaakovs would make any financial contribution to the child’s upbringing, but they were not required to.

In 2003 the Israeli attorney-general ruled that a wife or girlfriend could use the sperm of a dead partner, but not parents.

However, permission in a similar case to the Ben-Yaakovs was granted in 2007 to parents who wanted to use their dead son’s sperm to produce a grandchild born to an identified surrogate mother. Keivan Cohen, 19, was killed by sniper fire in Gaza when serving in the Israeli military in 2002. His parents persuaded doctors to retrieve a postmortem sperm sample, which was frozen. After five years of legal battles – in which the family was also represented by Rosenblum and backed by New Family – an Israeli civil court approved the parents’ application to use the sperm to create a child with a surrogate mother. The court said the child would be the legal heir of the dead man. According to Danya Cohen, there were “technical difficulties” and as yet no child has been conceived. She accepted there may be ethical objections to cases such as these “but they mainly stem from misunderstanding. There are people who think it would be wrong to create a child in the image of a father who has recently died, and I can understand that. But this case serves the interests of the parties involved.”

David Heyd, professor of philosophy at Jerusalem’s Hebrew University, said the Ben-Yaakovs’ case was “ethically shaky”.

“The right to procreate belongs to parents. The parents of a dead child cannot use his sperm for their own purpose in becoming grandparents,” he said.


Israeli couple seek right to use dead son's sperm / By Harriet Sherwood

Israeli couple seek right to use dead son's sperm / By Harriet Sherwood

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