His young widow agrees, but also has another "donation" in mind. The organs can save others, she says, but she wants a vial of his semen so that he will indeed live on through the child they will yet have. Harvesting sperm from a recently deceased man allows for the possibility of inseminating a woman --his wife, girlfriend, or an anonymous "surrogate mother"-- to carry his child. The medical technique is not at all complicated. Yet little thought has been given to the ethical considerations involved. Between 1980 and 1995, eighty-two requests for postmortem sperm procurement were reported at 40 facilities in 22 different states. That more than half of the reported requests were made between 1994 and 1995 pointed to the fact that this was even then a growing issue. At the time of that report, there were no explicit ethical guidelines, legislation or relevant case law available to guide fertility specialists. That situation has not improved much over these last five years or so, even as requests for postmortem sperm procurement and use to initiate pregnancies continue to grow.

When the Israeli Supreme Court issued a decision in the Nachmani case (concerning whether a man could prevent his estranged wife from implanting, against his wishes, a preembryo they had previously been created and frozen), it quoted the Australian Supreme Court's observation that the new reproductive technologies may often create a situation of "law, marching with medicine but in the rear and limping a little." Indeed, the startling innovative possibilities that help in the creation of life often bring along with them ethical problems never before considered by the secular or halakhic legal communities. Such is the case with postmortem sperm procurement, which allows fatherhood from the grave, so to speak.

Halakha --Jewish law and ethics-- has its own concerns regarding this procedure. Before taking them up, however, let us backtrack to consider its attitudes towards related issues regarding the new reproductive technologies. In general, Halakha has embraced these technologies as a welcome opportunity to alleviate the pain of infertility. Halakha considers natural marital relations to be morally normative but, unlike the Roman Catholic Church, it does not regard them as morally absolute. According to most halakhists, the biblical command to "be fruitful and multiply" encompasses no more than natural marital relations and does not demand any artificial intervention. Thus, abandoning the normative approach to procreation must be weighed against other moral imperatives. In Halakhic Judaism, this judgment is relegated primarily to rabbinic authorities, not the individual conscience.

"A sensitive posek [halakhic authority],"

"recognizes both the gravity of the personal circumstances and the seriousness of the halakhic factors . . . He might stretch the halakhic limits of leniency where serious domestic tragedy looms, or hold firm to the strict interpretation of the law when, as he reads the situation, the pressure for leniency stems from frivolous attitudes and reflects a debased moral compass."

(Parenthetically, we should note that unfortunately, some halakhists have expressed distrust of the medical establishment's integrity and therefore fear that professional standards might not be adhered to and that foreign gametes will be added to or substituted for those of one the partners in order to insure a successful pregnancy. This distrust can usually be overcome by establishing a good relationship between the doctor and the patient's halakhic authority. Some embryology labs have wisely introduced elective rabbinical supervision in order to dispel any doubts the couple or their religious authorities might have about the integrity of the procedures.)

Artificial insemination with a donor's sperm, as we noted, is not universally accepted. In fact, it was one of the issues that generated a most heated debate between two of the major poskim of the previous generation. Rabbi Yoel Teitelbaum (the Satmar Rav) considered donor insemination (DI) to be adultery pure and simple, while Rabbi Moshe Feinstein argued that a charge of adultery could not be sustained in a case where there was no physical intercourse. While Rabbi Feinstein argued that DI involved no technical halakhic violation, he too had serious reservations about it because it violated the exclusivity of relationships that should characterize a marriage. He was willing to allow it only in the case of a distraught woman who could not be reconciled to a childless marriage.

On a practical level few poskim are willing to actually endorse the procedure outright, if only because they see it as offensive to the notion of exclusivity which should characterize a marriage. De facto, Rabbi Feinstein's position has prevailed in that most poskim agree that charges of adultery cannot be sustained, that there is no stigma of illegitimacy attached to the child, and that, while the woman's husband is not the child's halakhic father, if he agreed to the procedure he is responsible for supporting the child as if it were his own. (On the other hand, a woman's use of DI without her husband's consent is grounds for divorce.) Halakhically, a child born to a Jewish mother and a non-Jewish father is considered fatherless and has no familial relationship with his father's relatives. For this reason many poskim who allow DI prefer that the donor be a non-Jew, as there is thereby no necessity to keep records to assure that the child not marry another child of the donor. Some, however, maintain that the father's brother is the preferred donor, as the family can assure that a consanguineous marriage will not take place and there is full knowledge that the genetic integrity of the family is maintained.

Poskim have not been willing to forthrightly allow artificial insemination of a single woman. Logically, anyone who allows DI for a married woman should find it much easier to allow artificial insemination of an unmarried woman, as there can be no charge of adultery or illegitimacy in her case. Poskim may allow themselves to react sympathetically if DI is the only option in a childless marriage, as the traditional view of a family includes children, and a childless marriage calls out for a solution. But a child in a deliberately husband-less family runs counter to traditional notions of family. Hence, most poskim will not say that artificial insemination of a single women is prohibited, as technically it may well not be. But they cannot bring themselves to say explicitly that it is allowed, because that runs counter to their intuitive notions of what a Jewish family should be.

We do not wish to debate this issue here, except to note that in these cases there is much more involved than the technical halakhic judgment. From a traditional halakhic perspective, there is a difference between, on the one hand, a woman who longs for a traditional family life but who must confront the fact that her biological clock is running out, and, on the other hand, a lesbian who, whatever, the sincerity of her personal beliefs, rejects halakhic definitions of family and marriage. A widow who wishes to carry her deceased husband's child, certainly wishes to extend the notion of her family as long as possible.

The use of donor eggs has generated a different halakhic discussion. Here the major debate has been whether the genetic or gestational mother is the halakhic mother. It is a most interesting discussion, not simply because there are no ancient sources upon which to draw, but because the concept of motherhood developed by the Sages of old could not have included the notion of an egg, given that it was scientifically unknown until recently. As expected, the arguments from analogy point in different directions, with poskim arguing for each possibility. (The issue is further complicated when only one of the donor and recipient of the egg is Jewish and the question of whether or not the child must be converted is addressed.) Indeed, even our "gut reaction," so to speak, points in two directions. On the one hand, in the case of a woman whose ovaries are not functioning and who obtains an egg from a donor, most would tend to say that the child which she carried and delivered is "hers." On the other hand, in the case of a fertile woman who must obtain the services of a surrogate to carry her baby, many would see the baby as hers and the surrogate as a hired "fetus-sitter" of sorts. But law cannot rely on gut reactions, and the question of who is the halakhic mother is yet to be fully resolved.

In allowing a Jewish couple to arrange for an unmarried Jewish surrogate to carry their fetus, Rabbi Zalam Nehemia Goldberg, one of Jerusalem's senior poskim, sets out two major principles. First, every effort must be made to insure that the legitimacy of the resulting child is not compromised. (Thus, for example, even though some poskim might find no problem if the surrogate mother were married, others have serious reservations about the legitimacy of a child born to a married woman who was impregnated with the embryo of a man not her husband. Therefore we should insist that the surrogate be unmarried.) Second, forbidding something requires a specific prohibition; the "natural" situation is to permit something if there are no serious objections.

"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."

It is true that if a woman were pregnant at the time of her husband's death, the child which is eventually born is considered the child of the deceased. However, frozen preembyos maintained outside of the mother's body have no standing in halakha (and may be discarded). Even if they are implanted subsequent to the man's death, there was no pregnancy at the time of the genetic father's death and the child born therefore has no halakhic father. This notion of a child unrelated to its genetic father has precedent in halakha. A child born to a Jewish woman and gentile man has no halakhic father, as is the case with a person who converts to Judaism and thereby severs all previous halakhic familial ties.

While this ruling would mean that the child would not inherit the estate or personal status as a Kohen or Levi from his genetic father, there is reason to suggest that on a practical matter he or she would be prohibited from marrying his genetic half-sibling for reasons of public policy. The precedent for this is the situation of two gentile siblings who convert to Judaism. Conversion severs all previous familial ties, and theoretically they are now halakhically unrelated and could marry. Nonetheless, the rabbis prohibited it as lacking propriety.

Others reject 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. Moreover, some simply dispute the existence of any prohibition, arguing 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 Zalam Nehemia Goldberg permits it without question.

The late Rabbi Shelomo Zalman Auerbach is quoted as seeing no basis for a halakhic distinction between married and unmarried men in this matter, but 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 persue "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.

If the brain-dead person is halakhically dead, there is a problem of nivul hamet and hana'at hamet, desecrating a corpse and deriving benefit from it. Halakha maintains that the sanctity of the body --the "ark" which held a holy soul-- transcends one's death. The deceased's dignity may be put aside only in a case of pikuah nefesh--danger to human life. In such a case, an autopsy might be allowed. But here the compelling reason is fulfilling the wishes of the deceased's widow, and as noble as those wishes might be, they might not reach the mark of allowing making use of the corpse. Rabbi Yigal Shafran, Director of the Jerusalem Rabbinate's Department of Medicine and Halakha, prohibits postmortem sperm procurement on these grounds. Those who would allow it note that a lower standard than pikuah nefesh is used to permit harvesting corneas, for example, and that such a procedure could be allowed only when it is reasonable to assume that it is the deceased own wishes which are being carried out. Currently, procuring eggs posthumously might be more problematic. The science of maturing eggs in vitro has not yet been reliably established; therefore harvesting eggs from a brain-dead individual would require subjecting her to ovarian stimulation, a medical procedure which would necessitate delaying burial for a potentially extended period. However, it is fully expected that within a decade or two scientists will be able to reliably freeze and subsequently mature eggs from extirpated overies for use in IVF, something that analogous to current sperm procurement. In addition, the question of whether her biological progeny is her halakhic child complicates the ethical considerations to some degree.

On the other hand, if the person is halakhically alive, the procedure of obtaining the semen or eggs might be considered an assault on a live person. Indeed, all the considerations of taking sperm or eggs from an incompetent person come into play. In addition, for those who accept the ruling that the child born through posthumous insemination has no halakhic father, the issue of whether the individual is dead or alive at the time of the insemination has serious implications regarding the "pedigree" of the child.

A religious obligation devolves on the community and the family to insure that the corpse is not exploited. The fact that family members have the authority to donate organs does not represent their ownership of the corpse; they cannot act arbitrarily, but are restricted to conforming to halakha's ethical judgment. The right to donate an organ does not in and of itself extend to the right to authorize procurement of sperm or eggs. Thus all halakhist who have addressed the question assume that there is reasonable assurance that the deceased's wish would be to create progeny posthumously. Parenthood cannot be imposed on a person, living or dead, whether the gametes have been obtained before death or after. It certainly precludes imposing parenthood on a minor or incompetant individual

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