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Fathering children postmortem: Is there finality to death?

Question: What does Jewish law call the dead man who helps create life? Answer: A father, according to some

On July 25, 2017, Ms. Sanny Liu gave birth in New York to a healthy baby girl named Angelina. Weighing in at 6 pounds 13 ounces, the little bundle of joy was a miracle like all other healthy babies. But Angelina was also a feat of science, as her father, Detective Wenjian Liu, and his partner, Detective Rafael Ramos, had been brutally murdered in their patrol car more than two years earlier.

Immediately following his tragic death, Sanny requested that Wenjian’s sperm be posthumously extracted from his body, a procedure that is viable for up to 36 hours after death. Though the couple had been married for only three months prior to the incident, they had discussed having children, and Sanny was certain that it’s what Wenjian would have wanted.

The Liu family has found a great deal of comfort in the fact that Angelina shares some facial features with her father, and they see her as their family’s guardian angel and “the angel of the entire NYPD.”

But a question underlies this scientific triumph: can a sperm donor in fact be considered a father, when all of the activity happened postmortem? Is it possible for a person to leave this world and still be credited for contributing to the the birth of a child?

In the 18th century, the rabbinic halakhist Rabbi Ezekiel Landau addressed this matter directly (Noda beYehudah I:69). While discussing the notion of yibum (levirate marriage), he comments on posthumous paternity. Rabbi Landau states that while a child born following the father’s death would not obviate the responsibility for yibum, the child born from this conception would be considered linked to the father in all ways. This would include lineage and rights of inheritance with the responsibility to commemorate the anniversary of his/her father’s death, even though it occurred before his/her conception.

This position of Rabbi Landau is quoted and supported by Rabbi Shlomo Zalman Auerbach (Noam,1:165). It has also been used by a rabbinic court (Torah She-Baʻal Peh, Vol. 33) to conclude that a child born even 10 years after the death of his father would be entitled to an inheritance equivalent to the children of the father born during the father’s lifetime.

Rabbi Shaul Yisraeli (1909 – 1995), the former rosh yeshivah of Yeshivat Mercaz Harav and a judge on the Supreme Rabbinical Court in Jerusalem, did not agree with the application of Rabbi Landau’s comments to our contemporary situation. Rabbi Yisraeli felt that in Rabbi Landau’s case of posthumous paternity, the entire process is put into motion prior to the death of the father. Intimacy creates the opportunity for the sperm to fertilize the egg, a process that occurs during the father’s life, while conception (which can take up to 3 days) occurs after death. This, Rabbi Yisraeli argues, is not equivalent to our contemporary situations.

In our modern context, the human initiative to fertilize the egg continues after death, and the cryopreserved sperm must be thawed and prepared for IUI or IVF. Such activity, occurring after the death, argues Rabbi Yisraeli, causes a separation between the child and the sperm donor, and therefore, the title of “father” cannot be extended to the posthumous donor of the male gametes.

Nevertheless, it does seem that the preponderance of rabbinic thought connects the harvest of sperm postmortem to the acknowledgment that the donor is the child’s father.

Until very recently, death had complete finality. Then, autopsies allowed the deceased to reveal epidemics that could save the lives of many. This was followed by the notion of organ transplants that allowed the dead to perform one of the critical commandments of the Torah, pikuach nefesh, saving the life of a fellow human being. With the posthumous retrieval of sperm, the deceased is no longer just prolonging existing life, but he is also involved in creating new life.

This scientific revolution brings new meaning to the kabbalistic idea that we are judged in the afterlife for the actions we set into motion during our lives.  Indeed, now that saving lives and contributing to the process of procreation is possible from the hereafter, it appears as though there is truly no finality to death.

About the Author
Rabbi Dr. Kenneth Brander is President and Rosh HaYeshiva of Ohr Torah Stone, an Israel-based network of 27 educational and social action programs transforming Jewish life, living and leadership in Israel and across the world. He is the rabbi emeritus of the Boca Raton Synagogue and founder of the Katz Yeshiva High School. He served as the Vice President for University and Community Life at Yeshiva University and has authored many articles in scholarly journals.
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