Parents Ask Court to Allow Use of Dead Son's Sperm

'We donated his organs, so why can't we make use of his sperm?' ask parents of traffic accident victim.

Parents who contributed the organs of their dead son are now demanding to use his sperm to bring a child to the world. "If we were entitled to donate the organs of our son why are we not entitled to make use of his sperm in order to bring offspring to the world?" Mali and Dudi Ben-Yaakov from Atlit, parents of Ohad who was killed in an accident at the age of 27 in September, asked yesterday.

The parents of Ohad Ben-Yaakov embarked on a precedent-setting legal battle yesterday when they appealed to Attorney General Yehuda Weinstein with a request to use the sperm of their son, taken following the fatal accident.

sperm - Tali Mayer - February 7 2011
Tali Mayer

The case is unique because Ohad did not leave behind written or verbal instructions on using his sperm, and his parents embarked on their legal struggle without a woman who would serve as the mother of the child. At this stage their claim is to ownership rights of the sperm.

Based on instructions set by the attorney general in 2003, a woman whose partner was killed may use his sperm to bear children. In Israel the right of the parents to ownership of the sperm of their child is not yet recognized.

Ben-Yaakov was killed in a work accident as he was installing an air conditioner, which was a part-time job to pay for his studies at the Technion. He was hospitalized at the Rambam intensive care unit in a coma. Two weeks later he died of his injuries.

His parents, who consulted with friends and family, initially rejected the idea of donating his organs, but understood that these could save other lives, and agreed.

"He was a giving person, and when we realized that there is no way to bring him back, we wanted that Ohad will continue to live in the bodies of others. This is what he would have wanted," his parents said.

When the parents realized that their son was brain dead, they asked one of the doctors about the procedure for drawing sperm. They filed a request at the Family Court, which authorized the drawing of the sperm, but its use for the fertilizing of an egg is limited to the partner of the man.

In 2003, then-Attorney General Elyakim Rubinstein held talks with legal, medical and ethics experts, and it was agreed to grant legal auspices to the sperm to the partner, but not the parents. "Except for his partner," Rubinstein wrote then, "there is no legal standing [to the parents] on the issue of their children's fertility. Not in their lifetime, and certainly not when they are dead. Providing an opening to the parents of a partner to enter intimate and private area such as this raises very difficult questions and complex issues, and this should be avoided ... the law does not recognize the right to have a grandchild."

In 2009 a Family Court in the Krayot (north of Haifa ) approved the request of a 40-year-old woman to receive the sperm of Idan Snir, a soldier who died of cancer at 22. He had died while in service, and had donated sperm to a sperm bank. When she asked to be inseminated with his sperm, his parents agreed and made arrangements for their relationship with the offspring of their son.

Ohad's parents would like to find a woman who would be willing to become pregnant with their son's sperm, since they say they do not want her to "be brought into the legal battle."

Attorney Irit Rosenblum, who is representing the parents in their effort, wrote to Weinstein arguing that there are property ownership qualities to sperm bank donations, and therefore there should be similar ownership rights to the legal inheritors of the sperm.