Cryopreserved Sperm Within and Without the Marriage Bond
However, the situation becomes a bit more complicated when the issue is a potential infertility problem. Thus, for example, Israeli Chief Rabbi Eliyahu Bakshi Doron prohibits an unmarried man from cryopreserving his semen in anticipation of chemotherapy that might leave him sterile. Such a procedure is allowed, he argues, only to fulfill the halakhic obligation to procreate. Inasmuch as an unmarried man cannot yet be considered bound by this obligation, he argues, he cannot be permitted to secure the semen by masturbation.
Dr. Daniel Malakh rejects Rabbi Bakshi Doron's argument, noting that while the obligation to procreate should optimally be fulfilled with one's wife, post factum it can be fulfilled outside of a marriage. An unmarried man is clearly under the obligation to procreate and therefore should be allowed to procure and cryopreserve his sperm towards that end. Rabbis Tsadok Sushard and Moshe Kurtztag also dispute the existence of any prohibition, even for an unmarried man. They argue that masturbation is allowed for any legitimate and compelling reason, a criterion clearly met by a bachelor facing chemotherapy that might leave him infertile. (Rabbi Sushard quotes Rabbi David Feinstein as concurring.)
Dr. Abraham S. Abrahams quotes the late Rabbi Shelomo Zalman Auerbach who, while seeing no basis for a halakhic distinction between married and unmarried men in this matter, personally felt that in either case such a procedure runs counter to general halakhic ethics, although he did not prohibit it. His position can be understood in light of the opinion that the halakhic obligation to "be fruitful and multiply" requires only that the couple engage in regular sexual relations and not that they peruse "heroic" actions to assure a pregnancy.
While there is no unanimity on the issue, it is clearly within the bounds of halakhic ethics to extend to unmarried men facing chemotherapy the permissibility of storing their semen for future use.
Retrieval of Sperm from Brain Dead Individuals
It is doubtful if such a procedure could be allowed halakhically if brain death is accepted as halakhic death, as it is forbidden to derive any personal benefit from a corpse. The only exception to this prohibition is a life saving procedure, such as transplanting organs; retrieving sperm would apparently not fit under this rubric.
Dr. Yoel Jakobovits has summarized the rabbinic debate on whether or not brain death constitutes halakhic death, and readers of Le'ela have recently have a glimpse of the extent of the controversy. Generally, those who hold that brain dead people are not yet halakhically dead would place them in the halakhic category of gosses, a person on the verge of dying. A gosses may not be touched or moved for anything that does not relate to its immediate care, ruling out the possibility of electro ejaculation for retrieval of sperm.
Yet Rabbi J. David Bleich has recently argued that the category of gosses has virtually no practical application at this time and that brain dead individuals should be considered fully alive. If this is true, given that electroejaculation does not harm the health of the brain dead individual, a different line of reasoning would have to be considered, one that takes into account the lack of explicit consent of the putative donor.
Filial Relationships following Postmortum Insemination
Some halakhists have argued that physical intercourse is a sine qua non for establishing halakhic relationships, suggesting that a child born through either artificial insemination or in vitro fertilization has no legal relationship to its genetic father. However, the current consensus is that such a child has the same relationship to its genetic father as if the conception had been effected through natural intercourse. Nonetheless, the late Rabbi Shaul Yisraeli, one of Israeli's leading contemporary halakhists, ruled that when cryopreserved sperm is used, the child has no relationship to the father if the insemination is done after the latter's death. He subsequently extended this ruling to frozen embryos implanted after the genetic father had died.
A conclusion identical to that reached by Rabbi Yisraeli is mandated by the United Kingdom's Human Fertilisation and Embryology Act 1990 (s. 28(6)(b)), which legislates that "Where the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not to be treated as the father of the child." The United States Uniform Status of Children of Assisted Conception Act 1988 (s. 4) proposes the same position. Morgan and Lee report that this provision was inserted in the act to ensure that estates can be administered with some degree of finality. A similar logic motivated Rabbi Yisraeli, who argues that any other conclusion regarding posthumous children could preclude finality to a deceased's status as "childless," an unacceptable halakhic situation. Morgan and Lee note that s. 29 of the act extends this ruling to questions of incest and prohibited degrees of marriage. Rabbi Yisraeli's rulings likewise extend to these areas.
Post mortem use of Cryopreserved Sperm
We cannot assume that a man would ipso facto not want to allow his semen to create genetically-related progeny to whom he is not halakhically related. The Talmud (M. Kiddushin 3:13) in another context actually recommends a procedure whereby a man will procreate children who are not halakhically his. A Jewish child inherits his or her parent's status as a mamzer (illegitimate). R. Tarfon, however, suggests how a mamzer might have a child free from this taint. The man should father a child with his non-Jewish slave. This child is a slave unrelated halakhically to its Jewish father. If the man then frees the child, it automatically attains the status of a convert, one that is free from any taint of illegitimacy. Yet this child, as a convert, has no filial relationship with its genetic father. Clearly the halakha takes positive, serious note of the genetic reality irrespective of the lack of halakhic relationship; the absence of a halakhic filial relationship does not automatically disqualify the procedure.
Given that the genetic donor appears to have lost all relationship to his genetic material, it is not at all clear why the cryopreserved semen should not simply be treated as non-Jewish semen, which according to many halakhists is available to Jewish women seeking donor insemination (and which is certainly halakhically available to non-Jewish women).
Rabbi Dr. Daniel Sinclair, Principal of Jews' College and the Chief Rabbi's spokesman on medical ethics, commented that "consent inter vivos [between living persons] would, indeed, play a role in any halakhic analysis of the issue of using a dead husband's sperm to fertilise his wodow's eggs." On the other hand, the former Chief Rabbi, Lord Jakobovits, felt that "the question of consent would hardly arise in Jewish law, particularly in the Blood case, where there is every indicaton that the father would have agreed."
The American Fertility Society (now the American Society for Reproductive Medicine) holds that "the fact that a spousal relationship existed before the preservation of the semen specimen and before the husband's death" makes posthumous insemination ethically acceptable. The British HFEA allows posthumous insemination if proper consent had been obtained prior to the donor's death.
The Code of Practice that accompanies the Human Reproductive Technology Act (1991) of Western Australia and the German Law for the Protection of Embryos (1991) prohibit knowingly using sperm in an artificial fertilization procedure after the death of the gamete provider. The Constitutional Council of the French Republic (Decision No. 94 343/344 DC, July 27, 1994) stipulated that the man and woman constituting the couple requesting artificial insemination or in vitro conception should both be alive." Under Norwegian law (1994), a widow canot be inseminated with the cryopreserved sperm of her deceased husband because the law requires written concent from both the woman and her husband or partner, and the physician must ensure that the consent is still valid at the beginning of treatment. Fadel notes that Islamic law allows the use of assisted reproductive technologies only in the context of an intact marriage, during the life span of the marriage when both partners are alive.
Single Motherhood and Public Policy
Here, of course, the widow is trying to extend the family unit passed the death of the husband, not contravene it. Yet this too is problematic, not simply because of the technical problems mentioned above, but because it is an attempt to deny the finality of death. Clearly this public policy issues requires a broad discussion within our community.