KFAR SABA — Like many couples in their early 50s with grown children, Irit and Asher Shahar look forward to becoming grandparents in the near future. The Shahars, however, plan on welcoming their first grandchild in a highly unconventional way.
Ever since their son 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 has fought the state to gain the legal right to produce a child from their son’s posthumously-retrieved sperm. The Shahars plan to raise that child themselves.
Irit and Asher’s hard-fought battle ended this past September in a precedent-setting ruling. The Petah Tikvah Family Court granted permission for them to raise a child created from their deceased son’s sperm and a purchased female egg. The embryo would be carried by a gestational surrogate.
The court’s decision is believed to not only be a first for Israel, but also for the world. Since 2003, Israeli regulations have allowed for posthumous sperm retrieval for the purpose of later insemination or IVF by a surviving female partner. In the last decade there have also been numerous instances of parents legally providing their sons’ posthumously retrieved sperm to single women wishing to become pregnant. In those cases, the women were the biological mothers of the children. They raised the children, and the parents of the posthumous sperm donors remained in the picture as engaged grandparents.
Despite the September ruling, however, the state is currently preparing an appeal linked to the unusual circumstance of the Shahars’ desire to be, in effect, both grandparents and parents to Omri’s offspring. In the meantime the court has issued an injunction preventing Irit and Asher from accessing and using Omer’s stored gametes.
“As soon as the injunction is lifted, we are going to move on things right away,” Irit told The Times of Israel in an interview at the spacious Kfar Saba home she shares with Asher and their youngest daughter, 16-year-old Lotem. A second daughter, Inbar, 26, was recently married.
Confident the state will not succeed in its possible appeal, Irit believes it is not unrealistic for her and her husband to hold Omri’s biological son or daughter in their arms within a year or two.
Additional hurdles to surmount
Attorney Irit Rosenblum, founder and CEO of New Family, a leading Israeli family rights NGO, cautions that the path will not be completely smooth for the Shahars, even if the state’s appeal is thrown out.
“They will need a court order to take their son’s sperm out of Israel. And they cannot legally purchase an egg or engage a surrogate here in Israel, so they will have to go abroad to do all of this,” Rosenblum said.
The Shahars, who have already spent hundreds of thousands of shekels in their quest to continue their son’s biological line, remain undaunted. Cost, including surrogacy fees reaching as high as $130,000 in the US, is no object.
“I am ready to sacrifice so that Omri will have a continuation here in Israel,” Irit insisted.
The family’s strong patriotic connection to Israel is obvious from the large area between the kitchen and living room turned into a memorial to their son. The overwhelming number of photographs and memorabilia, including medals and insignia, honor not only Omri but also the Shahar family’s decades-long history of military service with distinction to the country. Irit’s father served in the navy for 27 years, and Asher for 26. At age 54, he still does reserve duty as a colonel.
What is ‘normal’ in the face of grief?
“A lot of people think what they are doing is insane,” said Shirly Berkovitz, who has made a documentary film about the Shahars and their legal journey. The film, titled “Reborn,” has been purchased by Yes Doco and will be screened on Israeli television in spring 2017.
Berkovitz, too, was skeptical when she met the couple and they agreed to let her follow them around with her camera for months on end.
“I was a fly on the wall. They let me into the most private spaces and moments in their life. And the more I got to know them, the more I started to agree with what they were trying to achieve. They really deserve to get what they have fought for,” said Berkovitz, 40.
Some may question whether what the trailblazing Shahars are doing is normal, but “normal” can be relative.
“The world is not normal. Is it normal for us to send 18-year-olds to the army and for them to return in coffins?” Berkovitz said.
Irit said she understood people’s opposition, but that she can’t understand the cruelty with which some critics have expressed their disapproval. She is especially hurt by erroneous assumptions that she and Asher are just doing this so they can collect from the state. (The Defense Ministry does not make regular allowance payments to orphans of fallen IDF soldiers.)
“It angers me that people respond this way to someone who has experienced such a terrible fate,” Irit shared.
Asher put the legal battle’s hardships into perspective.
“The legal process and its pressure are nothing compared to the depths of our grief. The hardest thing in the world is to lose a child. All the other things that people complain about in life are tiny and inconsequential in comparison,” he said.
An unprecedented court decision, but not a legal precedent
While all professional experts the Shahars approached were sympathetic to their plight, only some were willing to support their case. One of them was philosopher Asa Kasher, who related to the bereaved parents’ pain on a personal level. Co-author of the IDF Code of Ethics and himself the father of a fallen soldier, he provided a key opinion that helped sway Judge Yocheved Greenwald-Rand to rule against the state’s claims, as reported in Ha’aretz, that the child would be subject to a “planned orphanhood,” and would be “fragile in relation to children from normative families.”
The judge wrote in her opinion that “there is nothing unacceptable about the way [the Shahars] chose to deal with their bereavement and their request to give their late son descendants and raise them as their own.”
The opinion further stated that whereas many children are brought into the world in less than favorable circumstances and suffer for it, this child would be born into a loving, supportive family deemed by the court to be more than fit enough to raise it.
Irit and Asher have surprised even themselves in terms of the strength they have exhibited throughout their ordeal, beginning from the terrible moment they were informed by IDF representatives of Omri’s death.
Somehow, even amidst her shock and grief, Irit had the presence of mind to request the posthumous sperm retrieval. Cognizant of the limited time window in which Omri’s sperm would be remain viable, Asher was out the door half an hour later, headed to the Petah Tikvah Family Court to request a court order permitting the retrieval, which was granted.
“I was more on my knees than on my feet, but I did it,” Asher recalled.
‘The Shahars have opened minds and raised awareness, but this is not an actual legal precedent’
Rosenblum was not directly involved in the Shahar’s case, but she represents other families seeking to continue their deceased sons’ biological lines. She warned that while the Shahars have made history, other Israeli families should not assume that a door has been blown wide open.
“The Shahars have opened minds and raised awareness, but this is not an actual legal precedent or change in regulation. Families involved in future cases will have to sue the state just as the Shahars did,” she said.
Irit said she wanted other families to know they have options. She would advise all parents whose son has died or been killed (and has not already frozen his sperm in advance, as some IDF soldiers do) to immediately seek a court order for posthumous sperm retrieval.
“They can figure out later what they want to do with it, if anything. But at least they will have options,” she said.
The world looks on
As the court’s decision in favor of the Shahars pushes the bioethical envelope here in Israel, the world looks on with interest. Some countries permit posthumous sperm retrieval when the deceased has left a written directive. Others such as France, Germany and Sweden ban it outright.
In the US, the law in this regard has varied from state to state, and key legal cases have centered more on the inheritance and social security consequences of the use of such sperm, rather than on permission for its use.
According to Harvard University law professor I. Glenn Cohen, a leading expert on the intersection of bioethics and law, there are many issues to be considered in cases such as the Shahars’. These include the invasion of the body, the right not to procreate or be a parent, harm to the children (as well as to other children in the family), rights claims of grandparents, and intent of the deceased.
While Cohen preferred not to comment in detail on the Shahar case, he did tell The Times of Israel that he was not taken aback by the Israel court’s decision.
“I will say that Israel is well known in terms of policy, culture, and court decisions as one of the most pro-natalist countries in the world — think about the funding for IVF in Israel which is about as robust as any country I know of,” said Cohen.
‘Israel is well known in terms of policy, culture, and court decisions as one of the most pro-natalist countries in the world’
“The whole effect of the halachic [Jewish religious law] view of be fruitful and multiply no doubt has an impact here too, so it doesn’t surprise me if Israel authorizes posthumous reproduction in these cases where many other countries would not,” he said.
Irit and Asher recalled their son speaking many times about wanting to marry and have a large family. Therefore, they are certain they are doing not only what is right for them and their daughters, but also what their son would have wanted.
According to Asher, they are doing it not only for their own family, but also for parents the world over.
“It is important for everyone to know that if you lose your child, it doesn’t mean that you lose the chance for his children to be born,” Asher said.
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