'In our case, there is no widow' who might object to their desire to become grandparents

Couple suffers setback in bid for grandchild from sperm of late soldier son

Irit and Asher Shahar vow to continue legal battle after state wins appeal against earlier precedent-setting ruling in their favor

Renee Ghert-Zand is the health reporter and a feature writer for The Times of Israel.

A photo of Asher and Irit Shahar with their son Omri taken before Omri's death in June 2012. (Courtesy)
A photo of Asher and Irit Shahar with their son Omri taken before Omri's death in June 2012. (Courtesy)

An Israeli couple who in September won the precedent-setting right to produce and raise a child from their deceased soldier son’s posthumously retrieved sperm suffered a legal setback on Sunday.

The state won its appeal in Lod District Court against a ruling by Petah Tikvah Family Court that allows Irit and Asher Shahar to use son Omri’s sperm to fertilize a purchased egg and create an embryo to be carried by a surrogate.

“The court really threw us back. This is very hard for us emotionally. Asher and I haven’t left the house for the past two days,” Irit Shahar told The Times of Israel on Tuesday.

Shahar said she and her husband had a sense that the three court judges would not rule in their favor because of arguments made by the state, based on a recent Supreme Court decision in a similar suit.

“We could see things weren’t going our way. We tried to explain that ours wasn’t the same story as in the other case,” Shahar said.

The Supreme Court ruled in December 2016 in favor of an appeal against a decision by Lod District Court that the parents of a deceased man had ownership of 19 tubes of frozen sperm posthumously extracted at the request of his widow.

In her appeal against the ruling, the widow argued that according to a 2003 attorney general’s directive on postmortem extraction and use of sperm, her late husband’s parents had no entitlement to the sperm. Supreme Court Justice Esther Hayut rejected the parents’ claim to the sperm based on their right to grandparenthood, ruling that grandparents’ rights extend to existing grandchildren, not the unborn.

Irit Shahar at her son Omri's grave in Kfar Saba. (Courtesy)
Irit Shahar at her son Omri’s grave in Kfar Saba. (Courtesy)

The 2003 directive allows for posthumous sperm retrieval for the purpose of later insemination or IVF by a surviving female partner. However, in the last decade there have also been numerous instances of parents legally providing their sons’ recovered sperm to single women wishing to become pregnant. In those cases, the women were the biological mothers of the children. They raised the children, with the parents of the posthumous sperm providers remaining in the picture as involved grandparents.

Attorney Avidan Glowinsky (Facebook)
Attorney Avidan Glowinsky (Facebook)

The Shahars’ attorney, Avidan Glowinsky, told The Times of Israel that he is now preparing an appeal to the Supreme Court on behalf of his clients.

“The state didn’t bring anything to its appeal other than the ruling in the Supreme Court case in which the judges decided not to give the parents the sperm because of an objection of the widow. This isn’t relevant to our case. In our case, there is no widow, and the young woman who was Omri’s girlfriend at the time of his death is very supportive of what his parents are trying to do,” Glowinsky said.

“In addition, this Supreme Court decision is new. It’s very recent. How can it be used as a precedent to overrule the Family Court’s decision in favor of my clients, which was issued back in September?” he asked.

The Shahars’ legal battle has been ongoing since shortly after Omri, a captain in the Israeli Navy on active duty, was killed in a June 2012 car crash at the age of 25. The couple also has two daughters, Lotem, 16, and Inbar, 26, who was recently married.

Some have questioned the Shahars’ motivation and dogged persistence in attempting to bring into the world a biological son or daughter for Omri and raise it as their own, but they are determined to stay the course.

“At this stage it has gotten very, very difficult. One one hand, it’s hard to continue to believe in the justice system. But on the other, we have decided we are going to continue to fight for Omri,” Irit said.

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