Our position has been published a number of years ago in the position paper of “Tzohar Ethics” and in the newspaper, and the bottom line is that the widow is the only one allowed to do this through the power of the covenant that was established between her and him, as included within it is bringing children into the world. Beyond this, we are not permitted to turn a person into a parent without their knowledge, even after their death. One can read this position paper on the Tzohar Ethics website, under the name “Using the Sperm of the Deceased”.
The typical discussion applies, as stated, when we do not know the wishes of the deceased. In situations where his wishes are known to us, the starting point is that we should act in according with his desires, based on “it is a mitzvah to fulfill the words of the dead” and the recognition that it is permissible for a person to dictate the performance of an action not in violation of halacha before his death.
This recognition brings up two systemic issues. First relates to the transition between “permissible” and “recommended” or “desired” – is it possible that we are dealing with a policy that is desired from the onset or is it only a response to the person’s wishes? There are those who rely on the mitzvah of yibum, which teaches us the importance of establishing progeny and preserving the name of a person, in order to demonstrate that Judaism encourages fertilization after death. One should not see this as a halachic imperative, but a positive approach from the onset. In the past there was no capability of doing this, and therefore we do not have halachic continuity in this discussion. It seems that the definition of the process as recommended or desired is exaggerated. We are dealing with a permit, not an obligation, and not encouragement as well.
The second systemic question is what is the function of society in this discussion: should we draft a proposal for sperm collection and make the option accessible to every reserve soldier? Or perhaps we should go to the other extreme and determine that the state should not be involved, it is not the role of the army, and in general society should not be involved in sensitive topics such as these? And maybe one should take an intermediate position, such as allocating funds to the process for those interested and the like?
This issue deviates from the sperm preservation itself and deals with larger topics such as combat morale, the function of society, and the general policies of fertilization. It seems that it is best if society’s institutions are not involved in the decision at all, yet facilitate this for those interested, with certain limitations.
The third topic is much broader. The topic of sperm preservation doesn’t only relate to the soldier himself: it also involves those around him and the societal pressure that this ability creates; it involves many women, who are influenced by every decision in this domain; it involves parent-child relationships; it involves a discussion regarding the rights of a child which has not been born yet, and will not be born if the matter is not permitted; it involves the deep impact that it will have on Torat Yisrael, the mitzvah of “be fruitful and multiply”, and the Jewish ethos that has been passed throughout history.
This is the way of many ethical discussions, that once the capability is available, we must discuss not only what science has to offer, but also what is proper to do.
It would be beneficial for the government to establish a diverse committee comprised of members in different domains with various life philosophies, who will propose a regulated bill in the Knesset for these issues. The Knesset, as the source of the state’s authority, will rule whether to and what to adopt based on the recommendations brought forth, and this delicate and sensitive topic will be regulated at least on the legal plane. The psychological effects of this will be far reaching.
First published in Makor Rishon.
