Post-Mortem Sperm Retrieval
Rabbi Mordechai Halperin
I am occasionally asked if Jewish law permits the
removal of semen from a deceased man in order for his widow to bear his child.
It is a delicate and sensitive issue and the answer is not simple. There are
arguments both for and against the procedure, involving halachic, legal and
1. Arguments Against Post-Mortem Sperm Retrieval
A. Issur Nivvul ha-Met
The 613 Torah commandments can be
divided into two cate- gories: those between man and God (ben adam la-maqom)
and those between man and his fellow man (ben adam la-havero). The
prohibition against nivvul ha-met, insulting the dignity of the dead, is
a type of damage and, like all types of damages, falls in the category of
commandments between man and his fellow man.
We learn in the Torah that we are
required to pay for damages we cause to others.
As long as the one who incurred the damage does not forgive the one who caused
it, the latter is obligated to pay for the damages, even if he is not being
sued. However, nowhere in the Torah does it explicitly say that causing damage
to your fellow man is forbidden. It is written that if one causes damage he
must pay for it, but it does not say that causing damage in the first place is
We learn from the oral Torah (Tora she-be-’al
peh) that the source of the prohibition against causing damage to another
person is lo tigzol, “thou shall not steal.” Inflicting any sort of damage
is considered stealing, as Rabbeinu Yona teaches us: Moshe received both the
written Torah (Tora she-bi-khtav) and the oral Torah, its explanation,
at Sinai. “They were given together because otherwise we would not be able to
understand the written Torah. For example, we are told lo tigzol, and
the oral Torah explains that kol neziqin bi-chlal oto ha-lav – all
damages are included in this prohibition.”
The prohibition is not against having that which you stole, it is against
causing damage to the person you stole it from. All kinds of damages to persons
living or dead – nezeq (damage), tsa’ar (suffering), rippui
(medical expenses), shevet (unemployment), boshet (shame), nivvul
ha-met – are included in the prohibition against stealing. Post- mortem
sperm retrieval, if it involves nivvul ha-met, should therefore be
It can be argued conversely, however, that the
procedure does not involve insult to the deceased’s dignity. Rabbi Moshe
Feinstein writes that taking a biopsy from a corpse is not nivvul ha-met.
It is performed on the living, so if performed in the correct, dignified manner
it can also be performed on a corpse.
B. Issur Hana’a min ha-Met
Post-mortem sperm retrieval seems to fall under the
prohibition of hana’a min ha-met, deriving benefit from a corpse. We
learn in the Talmud that this prohibition, unlike issur nivvul ha-met,
belongs in the category of commandments between man and God.
However, procreation is a mitzva (“be fruitful and
and therefore the prohibition of hana’a min ha-met should not apply. The
operating principle here is that mitsvot were not given for us to benefit from
(mitsvot lav lehanot nittenu). The benefit of performing a mitzva and
fulfilling God’s command is not considered a forbidden hana’a. If a widow wants post-mortem
sperm retrieval performed on her deceased husband so she can fulfill the mitzva
of procreation, it is not considered a forbidden hana’a from the corpse
and this argument fails.
Rabbi Issar Yehuda Unterman argues that there is no
prohibition of hana’a min ha-met in corneal transplants because the
cornea continues to live in the body of the recipient and is therefore not
considered dead tissue,
and Rabbi Shlomo Zalman Auerbach accep- ted this argument. Perhaps this argument can
also be applied to sperm. If so, there is no hana’a min ha-met in the
case of postmortem sperm retrieval.
The Father’s Consent
There is an ethical question in creating a child
without the father’s consent. It is related to the argument of nivvul ha-met
because the corpse is being touched and its sperm is being taken against its
will. This is a serious type of damage, and it is prohibited.
However, before he dies a man can consent to
post-mortem sperm retrieval, and his consent does not necessarily have to be
explicit. If it is known that he would have wanted the procedure had he been
asked, it is as if he gave his consent.
Halacha takes into consideration what the deceased
would have thought about certain damages caused after his death. There is a
dispute in the Mishna over what should be done with any remaining money that
was donated for a burial.
Should it be distributed among the deceased’s heirs or should a finer headstone
be purchased? Hazal explain that the difference of opinion hinges on
perception of what a normal person would prefer be done after the humiliation
of having his burial paid for by charity.
From this we learn that consent can be determined retroactively, post mortem.
Another argument against post-mortem sperm
retrieval is that the child’s paternity is uncertain. In the case of artificial
insemination performed after the father’s death, there is legal and halachic
dis- agreement over whether the child is considered the deceased’s son. The same disagreement exists
with post-mortem sperm retrieval. In halacha, it is very important to know who
the father is. A divorced or widowed woman, for example, must wait three months
before she can remarry because, should she be pregnant with her first husband’s
child or become pregnant with the second husband’s child soon after her remarriage,
paternity would be uncertain,
and this could lead to the forbidden marriage of a brother to his sister.
However, there is a clear halachic difference
between unknown and uncertain paternity. An illegitimate child whose father is
un- known – the child of a prostitute, for example – is called a shetuqi, but with post-mortem
insemination using frozen sperm or with post-mortem sperm retrieval, the
biological father is known and the controversy over paternity is strictly
legal. Paternity is uncertain, which from the halachic perspective is totally
different from unknown as it cannot accidentally lead to the forbidden marriage
of a brother to his sister.
Considering the Other Heirs
An often-heard ethical argument against post-mortem
sperm retrieval is that a new heir is being created against the will of the
other heirs. If the inheritance is one million dollars and there are four
heirs, each will get two hundred and fifty thousand dollars. If you then create
a fifth heir, each will get only two hundred thousand dollars. Is this fair?
I did not find a halachic source for this argument,
as heirs have no say in the creation of other heirs. The money does not belong
to them until they acquire it through their father’s death, and until then the
father can do what he likes: he can bequeath the money to someone else – to
none of his children – or he can produce more children. The existing heirs,
therefore, cannot object to the creation of other heirs.
It can be argued that if the heirs receive the
inheritance before their father’s death, post-mortem sperm retrieval could
indeed lead to another heir who will lay claim to a share of the inheritance.
Nevertheless, even if the new heir claims and receives a share, the new
apportionment is retroactive, meaning that what the others had already received
was never really theirs.
The Mother’s State of Mind
This argument is very interesting: a widow who
wishes to have post-mortem sperm retrieval performed on her deceased husband is
in a state of emotional distress and her decision might be against her “real”
interest. In the future she will certainly regret her decision.
Does the widow really not know what she wants? What
should be considered, her current or her future state of mind?
Retrospective consent has halachic validity. The
daily Temple sacrifices were bought with the money from terumat ha-lishka,
which was raised by the mahatsit ha-sheqel (half sheqel) that everyone
is required to give each year. There is a general law in the Mishna that a
person can be forced to pay his mahatsit ha-sheqel, but on the other hand, a
person who brings a sacrifice to the Temple must do so of his own free will – li-retsonchem
The question in Tosefta is how, then, can he be forced to pay his mahatsit
ha-sheqel? Won’t the sacrifice be invalid because the donation was forced?
Tosefta cites Hazal’s example of a
person who has gangrene in his leg and the only way to save his life is to cut
off his leg, but he refuses. The physician ties him up, cuts off part of his leg,
and cures him. Retrospectively, he consents to the amputation.
The same is true with forcing a person to pay his mahatsit
ha-sheqel. When a person brings a sacrifice it brings him closer to God and
his sins may be forgiven; retrospectively, therefore, he will be pleased that
he brought the sacrifice. Thus, retrospective consent is halachically valid and
there are times when we should consider that in the future, consent will be
Of course, to circumvent this argument altogether,
a one-year minimum can be set before which insemination of the widow cannot be
G. Procreation by a Widow: Mar’it Ayin
Another argument against post-mortem sperm
retrieval is that it appears to be immoral – the widow becomes pregnant and
gives birth to a child, but she has no husband – and Hazal were very
particular about moral issues of mar’it ayin.
Beit Hillel rules that a husband is forbidden to be
with his wife after he has written her a get (bill of divorce). The
Gemara explains that Beit Hillel is concerned that the husband and wife will
have relations and she will become pregnant, and there may be consider- able
delay between the writing and the delivery of the get. People might
forget about the delay and think that the date on the get is correct,
and therefore assume that the child is illegitimate, which, as Rashi adds, is a
However, it seems that although this argument was behind Beit Hillel’s ruling,
there is no general halachic ban that prohibits similar situations involving stigma.
Adding Complications to an Already Complicated World
The natural desire to have children is strong, and
the argument that the world is complicated enough without our adding complic-
ations to it may not carry enough weight to stand up to the legitimacy halacha
grants to the desire for children, as will be seen below.
2. Arguments for Post-Mortem Sperm Retrieval
A. Strict Rulings Require Substantiation, Lenient Rulings Do Not
The Mishna emphasizes that only prohibitive, strict
rulings require juridical substantiation while permissive or lenient rulings
need no supportive precedent.
The absence of a prohibiting substan- tiation is equated with halachic
Therefore, if no reason is found in the halachic sources for prohibiting a new
medical technology or procedure, it is permitted.
Invalidating eight arguments against post-mortem
sperm retrieval, however, is not enough to prove that there is no halachic
prohibition against it. An accepted halachic authority must be consulted.
When faced with uncertainty or insufficient
information, one should indeed be strict, as no special authority is needed to
say that something is prohibited. To establish permissibility, however, the
facts must be unambiguous.
When there is no clear halachic precedent calling for leniency, one must be
thoroughly versed in all the halachic sources before definitely stating that no
halachic reason for pro- hibition exists.
The Natural Desire for a Descendant
Rabbi Zalman Nehemia Goldberg, a member of the Supreme Rabbinical Court in Jerusalem, Rabbi Shlomo Zalman Auerbach’s son-in-law, and a
great poseq in his own right, adds a second argument in favor of permitting
post-mortem sperm retrieval.
Rabbi Goldberg was asked by the Israeli Surrogacy
Committee if halacha permits removing of semen from a deceased man in order for
his widow bear his child. His answer, based on the two arguments in the section
above, was clear: “Without the man’s consent it is, of course, forbidden.
However, if he gave explicit consent to post- mortem sperm retrieval or if it
is clearly known that he would have wanted the procedure done, then there is no
prohibition against performing post-mortem sperm retrieval.”
Rabbi Goldberg ruled that the Torah accepts the
natural desire for a descendant as meaningful; this is a partial understanding
of the concept of yibbum (levirate marriage). Adding complications to an
already complicated world, therefore, is an insufficient argument when by
“complicating” things you can help another person.
When I asked Rabbi Goldberg if post-mortem sperm
retrieval should be allowed, he responded, “Why not?” As long as the dec- eased
gave his consent, there is strict supervision ensuring that there will be no
mixing of sperm, and there is documentation of the child’s paternity so that
later, when the child is ready to get married, his legal, halachic father will
be known, “under these circumstances, why should it be forbidden?”
“Be Fruitful and Multiply”
Does the deceased fulfill the mitzva to “be
fruitful and multiply” (peru u-revu) through post-mortem sperm
retrieval? On one hand, ba-meitim hofshi: after a person has died, he
has no halachic obligations and can no longer fulfill mitsvot. On the other hand, there can
be post-mortem acts that are considered the results of actions performed while
still alive – bera mezakkeh abba, for example.
We must clarify what the essence of the mitzva of peru u-revu is: the act itself (ma’aseh) or the existence of children.
Is a ma’aseh required? Obviously, there cannot be a ma’aseh if
the man is no longer alive.
If a physician removes sperm from a man while he is
asleep and inseminates a woman who subsequently gives birth, is the man
considered the child’s father? If so, has he fulfilled the mitzva of peru u-revu? Beit Shemuel states that even though there was no ma’aseh
whatsoever, something happened while the man was asleep, the child is considered his,
and he has fulfilled the mitzva. Thus we see that a ma’aseh is not
required to fulfill the mitzva of peru u-revu.
Taz disagrees. According to him, a ma’aseh
is probably required in order to fulfill the mitzva of peru u-revu.
Rabbi Yehiel Ya’akov Weinberg
states that a ma’aseh is not necessary.
One might think, for example, that a convert to Judaism who fathered children before
his conversion has not fulfilled the mitzva of peru u-revu since the
halachic relationship between a convert and his children is broken by the
conversion (ger she-nitgayyer ke-qatan she-nolad dami) and because peru
u-revu was not incumbent on him at the time. Nonetheless, Hazal say
that he is considered as having fulfilled the mitzva, even though there was no
halachic ma’aseh and there is no halachic relationship between him and
his children. This proves that an halachic ma’aseh or halachic relationships
are not required in order to fulfill this mitzva.
Minhat Hinnukh goes even further in proving this
The mitzva of peru u-revu is different from many others in that
while most mitsvot require a ma’aseh, the essence of peru u-revu is the existence of children. He brings a very interesting proof
from the Palestinian Talmud: a man who fathered a child through a prohibited
act, for which he will be punished later, is still considered as having
fulfilled the mitzva of peru u-revu. There is a rule that mitzva
ha-ba’a be-’aveira, a mitzva that is performed by doing something that is
forbidden, is invalid and the mitzva has not been fulfilled. Why, then, can peru u-revu be fulfilled through a prohibited act? According to Minhat
Hinnukh, the answer is that the essence of peru u-revu is not
the ma’aseh, it is the existence of the children.
Another question is whether peru u-revu can be fulfilled after death. When the deceased has no children
but leaves behind a pregnant widow, for example, at what moment is the mitzva
fulfilled? According to Minhat Hinnukh, when the child is born. The
answer, then, is that the deceased has probably fulfilled the mitzva of peru u-revu.
Without knowing the opinion in Minhat Hinnukh,
one might assume that in the case of artificial insemination, the insemination
at least would have to be performed during the father’s lifetime for the father
to have fulfilled the mitzva. Having learned the Minhat Hinnukh,
however, we see that the ma’aseh is not essential; since the mitzva is
to have a child, the insemination only enables the mitzva (makhshir mitzva).
Therefore, if a widow who was not pregnant at the time of her husband’s death
was later inseminated with sperm he donated (while still alive), becomes
pregnant, and gives birth, her deceased husband should be considered as having
fulfilled the mitzva.
It follows, according to the above
principles, that if a widow becomes pregnant through post-mortem sperm
retrieval and gives birth, her deceased husband can be considered as having
fulfilled the mitzva, even though there might not be any halachic relationship
between him and his offspring.
This is similar to the previous discussion about a convert having fulfilled the
mitzva of peru u-revu even though the halachic relationship
between him and his children is broken by the conversion.
The default position in Jewish law is
permissibility, not pro- hibition. Post-mortem sperm retrieval’s permissibility
depends on two factors. If before his death the man did not explicitly or implicitly
agree to have his semen removed after his death for his wife to bear his
children, then it is strictly forbidden to do so and there is no halachic
dispensation for performing the procedure. Second, if he did give explicit or
implicit consent to the procedure, then the matter may depend on the different
opinions among the poseqim and a qualified halachic authority must be
Source: ASSIA – Jewish Medical Ethics,
Vol. IV, No. 1, February 2001, pp. 9-13