The parents of a combat reservist who was killed in a training exercise 10 years ago have won the right to a grandchild from his sperm over the objections of his widow. Their former daughter-in-law, who has since remarried and has children from her subsequent marriage, plans to appeal.
Judge Miriam Kraus of Petah Tikva Magistrate’s Court issued the ruling earlier this week, the Hebrew daily Yedioth Ahronoth reported on Wednesday.
The reservist, who was in his late 20s when he was killed, had been married for four months. His widow accepted the army’s offer to preserve 19 test tubes of his sperm. But since the sperm was removed from his body hours after he died, it is not certain that it is even viable.
His parents, who are in their 60s and have two other biological children, plus two orphans whom they adopted after his death, remained on good terms with their former daughter-in-law at first. But when they told her they wanted to use their son’s sperm to have a grandchild, she refused to bear the child herself or allow anyone else to do so.
In her precedent-setting ruling, Kraus determined that the late reservist’s parents could use their late son’s sperm to have a grandchild. She said that even though his sperm was not bequeathable, any use of it should be based on the deceased’s desire as expressed while he was still living. He had wanted children, not necessarily from his widow, and his parents represented his wishes. She described his parents as loving, devoted people with much to give to their future grandchild, and added that while being fatherless from birth was not an optimal situation, it would not necessarily do the child harm.
Kraus’s ruling read, in part: “The deceased’s human desire to leave a child to carry on his name cries out from the circumstances of this case…. The parents’ emotional need to have their son’s dream fulfilled should not be ignored. The court is aware of the widow’s stance that granting the parents’ request opens a floodgate whose outcome could damage the proper order and the human and familial fabric, social norms and ethical principles – but it is for the state’s authorities to find a solution for that.”
The widow stated at the hearings through her attorney, Diana Har-Even, that her late husband’s sperm was non-bequeathable and that only she had the legal right to decide what would be done with it. She said that Kraus’s ruling “was liable to violate conventions and the social fabric” by creating a precedent that would allow anyone to utilize the sperm of a deceased family member.
Representatives of the Attorney General’s Office and of the State Prosecutor’s Office opposed the parents’ request at the court hearings on the grounds that the widow’s stance should take precedence.
The deceased soldier’s parents said though their attorney, Dorit Arbel, that they were absolutely certain that their son had wanted descendants of his own. His father said that even if the mother were to decide to live abroad with their grandchild, they would respect her wishes and visit him there, and that they would not regard the child as a “living memorial” to their son.
“We knew for a certainty that our son loved children and definitely would have wanted children after his death,” the late reservist’s mother said on Tuesday night. “We would be happy if the widow had a child from his sperm, but she chose differently.”
“I did not shout for joy, nor did we celebrate, since our son is dead and we went to court against his widow,” she said. “Still, the time has come for us to be given the option of seeing posterity from our son. We felt that if something living was left of our dead son, we would not allow that possibility to be killed as well.”