The Biological Will™ – a New Paradigm in ART?

Irit Rosenblum, Founder and Executive Director, New Family Organization, Tel Aviv, Israel


Assisted reproductive technologies (ART) are constantly sophisticating, opening up infinite reproductive possibilities and biological and social parenting constellations. The Biological Will™ is an innovative solution to the legal and moral quandaries presented by new ART. The Biological Will™ is legal testament that I developed that documents the intended use or disposal of any individual’s sperm, ova or embryos in case of death, incapacitation or infertility. I propose the Biological Will™ as a solution to the questions of gamete and embryo ownership, donor consent, legal parentage, and inheritance rights of posthumously-conceived children.

The Biological Will™  Global Precedents

  • 2001 Biological Will is invented.
  • 2002 Biological Will introduced to Israeli Defense Forces.
  • 2005 World’s first Biological Will Bank established.
  • 2007 World’s first non-anonymous sperm donation in accordance with a deceased soldier’s spoken Biological Will .
  • 2008 First case of a single woman petitioning to conceive by a deceased, known sperm donor approved by court.
  • 2009 First court approval to execute a written Biological Will.
  • 2009 Establishment of ‘Creating Life’ Parents Forum
  • 2011 First child is born from embryos frozen by his biological father and late mother.
  • 2011 Court approves spoken Biological Will without questioning intent.
  • 2012 First immediate court approval for executing a biological will.
  • 2013 First Baby Born in Israel Years After Father’s Death -State’s Prosecution and Court Do Not Oppose Verbal Biological Will™ in another Legal Precedent.

since my proposal to establish a sperm bank for Israel Defense Force soldiers in 2001 through the birth of the world’s first and only child to be born of posthumous maternity by Biological Will™ in 2011, the Biological Will™ broke the boundaries of nature and made this new paradigm in ART a legal reality.


Since the dawn of humanity, children have been born after the death of their fathers. With the advancement of reproductive technologies, new possibilities emerged: Children can now be conceived after the death of one or even both parents. Posthumous paternity is possible when sperm from a deceased man is used to inseminate a woman to conceive a child. Sperm can be frozen during the donor’s lifetime or retrieved up to 72 hours after death. Since sperm cryopreserved at -196 degrees Celsius can be kept almost indefinitely, a man could theoretically father children years or decades after death. Posthumous maternity is possible when a woman’s ova are frozen during her lifetime or hours after her death, then inseminated and gestated by a surrogate mother. Posthumous maternity is more likely if embryos are created in her lifetime with a partner or donor sperm and preserved. If embryos created by a couple during their lifetime are gestated by a surrogate mother after their death, a child can theoretically be born decades after the death of their biological parents, necessitating the legal system to determine the identity of the legal parents and the rights of children, parents and grandparents. No nation has comprehensively dealt with posthumous reproduction in legislation or regulation, yielding a legal and moral vacuum in a sphere that is asking questions faster than the legal system can answer them, leaving posthumously-conceived children without certain legal parentage or guaranteed rights.

Materials and Methods

Posthumous Reproduction – Survey of Existing Legislation, Regulations and Legal Precedents

Most countries have no posthumous reproduction legislation at all. Posthumous reproduction is illegal in Germany, France, Canada, Sweden and two Australian states. New Zealand’s regulations rule posthumous sperm extraction unethical. Posthumous reproduction is legal in Holland and the United Kingdom. Belgium allows it in the absence of law. Greece and Israel have regulations for posthumous reproduction that aren’t laws.

The world’s first posthumous reproduction legislation was the Infertility Act 1984 of Victoria, Australia[i]. Posthumous reproduction has been most extensively legislated on in the UK. The Human Fertilization and Embryology Act[ii] states that a woman can be inseminated with a deceased man’s sperm only if she is named with his written consent. The HFEA’s Code of Practice[iii] recommends that people considering posthumous reproduction receive extensive counseling, that people who store gametes or embryos leave instructions for the event of death or incapacity, that male donors consent to be registered as the father of posthumously-conceived children, and to wait a year from the donor’s death before beginning fertility treatments.  Donor consent is also required for posthumous reproduction in Holland by the 2001 Embryo Act that requires that frozen gametes or embryos be discarded at the donor’s death, if instructions for posthumous use were not left.

In the US, posthumous reproduction is clouded by legislative ambiguity. There is no federal legislation, and courts have ruled on dozens individual cases with contradictory verdicts. Thirteen states have laws that allow posthumously-conceived children to inherit their late parent’s estate without a will, while four states forbid it[iv]. An attempt was made to unify legislation to identity the legal parents in cases of ART in the 1988 Uniform Status of Children of Assisted Conception Act[v], but only Virginia and North Dakota adopted it. Section 4(b) of the USCACA bars posthumously-conceived children from legal recognition and inheritance from the deceased parent. In 2000, multiple states enacted the Uniform Parentage Act[vi], though only Delaware, Texas, Washington, North Dakota, Utah, Oklahoma, and Wyoming adopted the revised 2002 law[vii] that defines how legal parentage is established in cases of ART. California enacted America’s most comprehensive posthumous reproduction legislation in 2004[viii], which distributes inheritance to posthumously-conceived children born within 2 years of the parent’s death, if the parent gave written consent for posthumous use of their gametes.

Israel is the world’s pioneer in posthumous reproduction, with multiple precedents enabled by the Biological Will™[ix], culminating in the world’s first and only case of posthumous maternity in the Ayash case[x].

The Deceased’s Consent

The literature reflects nearly unanimous agreement that the deceased’s consent should be required for posthumous use of gametes and embryos. The desire for donor consent presumes that posthumously-conceived children could harm the deceased’s reputation or financial interests. A grieving family might interpret their own desire to carry on the deceased’s legacy to be the deceased’s wishes. More significantly, the deceased’s wish to have children in their lifetime does not imply consent to use their gametes for posthumously-conceived children.

Several nations enacted laws on posthumous reproduction after the deceased’s verbal consent was contested in court. In France, legislation barring posthumous reproduction was passed in 1994 after the 1984 case of Alain Parpalaix[xi]. In the 1996 UK case of Diane Blood, a court ruled that the sperm retrieved from her dying husband had been illegal without his explicit consent and couldn’t be released. After winning an appeal arguing that her husband had given verbal consent, she took the sperm to Brussels where posthumous reproduction is legal, and had two children. UK law was later amended to require men to name in writing the woman whom they consent to conceive their posthumous child. The American Society for Reproductive Medicine guidelines state that if the deceased’s wishes are unknown, lack of consent should be assumed. Globally, many sperm banks and fertility clinics now require consent forms akin to a Biological Will™ to store gametes or embryos, where the donor leaves instructions for use or disposal of samples in case of death. I advise anyone who intends for their gametes or embryos to be used to conceive a child after their death leave a record of donor consent and instructions for their use in a Biological Will™. Individuals that store gametes or embryos that don’t wish for them to be used posthumously should leave a Biological Will™ instructing the storage facility to dispose of biological materials at death.

I believe that conditioning the posthumous use of gametes or embryos on the ability to prove that the deceased wanted posthumous children gives the legal system undue authority to determine a person’s genetic legacy. I argue that biological continuity is a human right that neither society nor government has the right to negate. A more logical assumption is that an individual seeks genetic continuity unless s/he says or acts to the contrary.  I see carrying on a person’s posthumous genetic legacy as the essence of the sanctity of life and an act of dignity.

As Property

The question of who may use the gametes or embryos of the deceased can be answered by considering gametes property and then determining their legal owners. The first known case to debate if embryos are property was the Rios case in 1983[xii]. The first known court verdict on embryo ownership was given in 1989 in York v. Jones[xiii]. A ‘custody’ battle was fought over frozen embryos in Davis v. Davis in 1992[xiv], resulting in the destruction of the embryos after the Tennessee Supreme Court upheld the man’s right not to father children from cryopreserved embryos. In 1993, Deborah Hecht went to court for ‘custody’ of the sperm her partner William Kane left her in his will, with the clear wish for her to bear his children after his suicide. The court first decided in favor of Kane’s adult children, who asked to destroy his sperm. On appeal, a superior court ruled that Kane “had an interest, in the nature of ownership, to the extent that he had decision making authority as to the use of his sperm for reproduction”[xv].  The court thus determined that sperm is property that can be inherited.

Embryos were viewed as property in the Julie Garber case. Garber was 28 when she succumbed to leukemia in 1996 after leaving instructions on how to use the embryos she had stored in a fertility clinic. Her parents hired a surrogate, and were hoping for a grandchild, to be raised by Julie’s sister. But their hopes were shattered when the surrogate miscarried the last of the three embryos. Garber’s parents argued that they inherited her embryos and that it was their “prerogative to grow them into grandchildren”. The ownership of donated sperm purchased by a lesbian couple was debated by the Supreme Court of British Columbia in Canada in 2012. Justice Loryl Russell ruled that the sperm remaining after conceiving two children is part of the couples’ joint property, and should be divided between them, explaining in her verdict that genetic material can be divisible property[xvi].

Inheritance Rights of Posthumously-Conceived Children

The rights of posthumously-conceived children are not guaranteed by legislation anywhere in the world. In most jurisdictions, posthumously-conceived children are not automatically considered their father’s heirs, since regulations typically require that a child be born 280-300 days of their father’s death to receive survivors’ benefits or inheritance rights. In 1991, the first posthumously-conceived child in the US was born to Nancy Young Hart. Though her child didn’t meet the requirements of a legal heir in Louisiana, an administrative court eventually granted her Social Security benefits, since the circumstances of her birth couldn’t have been contemplated by the law’s authors. In 2000, the New Jersey Superior Court awarded benefits to twins Elyse and Amanda Kolacy, the second US case of posthumous conception, born in 1996[xvii]. The great arbitrator of survivor’s benefits of American posthumously-conceived children will be the Social Security Administration, which is currently considering about 100 cases[xviii] on the basis of the inheritance laws in each state. In May 2012, the US Supreme Court ruled that Robert Capato’s posthumously-conceived twins are not eligible for Social Security benefits, in accordance with Florida law.[xix] In October 2012, the Utah Supreme Court denied Social Security benefits to Gayle Burns, claiming that the late husband who bequeathed his sperm didn’t necessarily intend to father children after his death[xx].

Posthumous Reproduction with a Partner Unknown to the Donor

I was privileged to litigate three groundbreaking cases in Israel in which the deceased’s parents won the right to carry out their son’s Biological Will™ by choosing a single woman to conceive with their son’s sperm and raise the child as her own. The world’s first case of attempted posthumous reproduction with a partner unknown to the donor is Keivan Cohen in Israel[xxi]. In 2007, Cohen’s parents won the right to designate a woman to conceive with the sperm that was extracted after his death in 2002, after proving in court that he wished to father children. The case was unique, both because Cohen had not left his wish in writing, and because he did not know the woman that will raise his child. The Cohen case paved the way for a string of legal precedents in Israel. In December 2009, Family Court approved the verbal Biological Will™ of Idan Snir, and empowered his parents to donate his sperm to a single woman who wishes to raise a child from a known sperm donor[xxii]. In April 2011, an Israeli court approved a written Biological Will™ in which Baruch Posniansky empowered his parents to choose a single woman who wishes to conceive with his sperm[xxiii]. These cases are significant because the Israeli legal system affirmed the young men’s right to father children after death independent of a female partner, validated the Biological Will™ and recognized its benefits for child, parents, and grandparents.

Posthumous Maternity

The world’s only case of posthumous maternity resulting in a live birth is Nissim and Keren Ayash of Israel, which I was privileged to represent. In 2011, a global precedent was set when the world’s first baby born by Biological Will™ was born by surrogate mother, who gestated the embryo created by both parents before Keren succumbed to cancer prior to completion of their fertility treatments. The child is being raised by his father.


The philosophical justification for posthumous reproduction stems from a belief that having biological children is a human right. The right to reproductive choice derives from individual free will and consciousness that transcends religious and government authority. Denying the right to procreation is a sentence, perhaps closest in nature, to involuntary sterilization or the death penalty. A central derivative of the human right to reproduce is the right to know your origins. I argue that anonymous gamete donations rob children of their genetic record, complete family tree, and extended family. Children’s hunger to find their roots is so compelling that adopted children and those born of anonymous gamete donations may spend their entire lives unraveling the mystery of their origins. These beliefs inspired me to establish the world’s first and only Biological Will Bank™. As the only entity drafting and storing Biological Wills™, the organization I founded and lead, New Family, helps the terminally ill, bereaved families, soldiers, and widow/ers create their biological legacy.

The Biological Will™ is an innovative form of legal insurance for genetic continuity. Biological Wills™ offers singles and same-sex couples an alternative to anonymous sperm or egg donations by receiving sperm or ova from a known donor to form a family with the donor’s kin and / or give their child a complete genetic record. All stakeholders benefit: the individual that fathers/mothers children, the designated parent, who has a child that knows his other parent’s identity, and the donor’s family, who continue their line. The child gets a genetic record, a complete family tree, and a known extended family. The Biological Will is the only legal option for known sperm and egg donations in Israel and many other countries.


In an age where a child can have multiple biological, legal and social parents, the legal system must redefine parenthood to protect all stakeholders’ rights. Written instructions by the deceased in a Biological Will™ on the circumstances in which s/he consents to use their gametes or embryos to conceive a child are the most accurate indication of donor prerogative. Biological Wills™ eliminate speculation or interpretation and prevents unnecessary litigation. 600 Biological Wills™ have been composed so far, and a dozen are being implemented.


[i] Legislative Council and the Legislative Assembly of Victoria, Australia. 1984. Infertility (Medical Procedures) Act 1984. No. 10163.

[ii] House of Lords and House of Commons, The United Kingdom. 1990. Human Fertilisation And Embryology Act 1990, Human Fertilisation And Embryology Act 2008. Chapter 37.

[iii] F. SHENFIELD, J. COHEN, P. DEVROEY and B. TARLATZIS, ESHRE Task Force on Ethics and Law 11: Posthumous Assisted Reproduction, Human Reproduction, Volume 21, Issue 12. Pp. 3050-3053,  2006

[IV] Totenberg, Nina. Court: No Benefits For Kids Conceived After Dad Died. National Public Radio. May 21, 2012.

[v] National Conference of Commissioners on Uniform State Laws, USA. 1988. Uniform Status of Children of Assisted Conception Act.

[vi] National Conference of Commissioners on Uniform State Laws, USA. 2000. Uniform Parentage Act 2000.

[vii] Roberts, Paula. Update on the Uniform Parentage Act (2002),  Center for Law and Social Policy, 2005

[viii] CHARLES KINDREAN, Dead Dads: Thawing an Heir from the Freezer, William Mitchell Law Review, Vol. 35:2, pp. 433-488, 2009.

[ix] Global Precedents. The Biological Will. New Family Organization.

[x] Rosenblum, Irit. Respect the Dead By Creating New Life. Ha’aretz. April 23, 2012.

[xi] G.A. KATZ,  Parpalaix v. CECOS: Protecting Intent in Reproductive Technology, Harv J Law Technol 1998, 11(3), pp. 683-98

[xii] Blakeslee, Sandra. New Issue in Embryo Case Raised Over Use of Donor. New York Times. June 21, 1984.

[xiii] York v. Jones, 717 F.Supp 421 (E.D. Va. 1989)

[xiv] Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992).

[xv] Hecht v. Superior Court (Kane) (1993) 16 Cal. App. 4th 836 [20 Cal. Rptr. 2d 275]

[xvi] Culbert, Lori. Court orders former B.C. lesbian couple to divide left-over sperm. Vancouver Sun.

April 26, 2012.

[xvii] 753 A.2d 1257 (2000) 332 N.J. Super. 593. .

[xviii] Totenberg, Nina. Court: No Benefits For Kids Conceived After Dad Died. National Public Radio. May 21, 2012.


[xx] Adams, Brooke.  No proof man wanted to be dad, justices say. Salt Lake Tribune. October 12, 2012.

[xxi] RUTH FISCHBACH and JOHN D LOIKE, The Lancet, Volume 371, Issue 9631, Pages 2166 – 2167, June 2008.

[xxii] Court: Israeli woman can use deceased man’s sperm to get pregnant, Ha’aretz, December 9, 2009.

[xxiii] Israel Channel One news interview, Broadcast May 29, 2011.

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