In a precedent-setting ruling, the Petah Tikva Family Court approved the request on Tuesday by the parents of a deceased IDF soldier to implant his sperm in a surrogate mother and raise the child as their own.
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The soldier, Omri Shahar, was killed in a car accident in 2012. After his death, at his parents’ request, his sperm was extracted at Assaf Harofeh Hospital.
Shahar’s girlfriend of three years at the time of his death said she did not want to become pregnant from the sperm, but supported his parents’ request, as did Shahar’s two sisters.
Judge Yocheved Greenwald-Rand said in her ruling that the state’s opposition to the request was based on the idea that granting it would go against the good of the child, because such a child would be subject to “planned orphanhood,” and would be “fragile in relation to children from normative families.” She also cited opponents’ fear that the child would become a “living monument,” to his dead father, “would risk not fulfilling the expectations of him and would engender negative feelings in his parents.”
But the judge said that those who supported the parents’ request believed that “there is nothing unacceptable about the way they chose to deal with their bereavement and their request to give their late son descendants and raise them as their own.”
Such a child would be born into an “environment desiring his birth, supporting, loving, embracing and with excellent parental ability to raise him in the best way,” she said.
The ruling is a precedent because according to attorney general’s position, stated in 2003, the court may approve such a request by a deceased individual’s partner and must give weight to the former’s desire to father a child in general and in particular after his death.
The state said that the directives in such cases as they now stood “were not intended for cases where the bereaved parents want to bring a child into the world through a surrogate so they could raise the child themselves.”
The state said to allow the parents’ request would be “dangerous and far-reaching application.”
In approving the parents’ request, the judge noted that despite the significant moral and social aspects of such cases, the law had not provided a comprehensive answer.
“Every day this court sees biological parents who are unable to raise their children and cannot fulfill their parental responsibilities. It cannot therefore but see the positivity and determination of the petitioners to raise Omri’s child with love, responsibility and an educational and supportive environment,” the judge added.
According to Dr. Yair Shiber, one of the lawyers who represented the Shahar family, the ruling was completely without precedent, in Israel or worldwide. "Until today, the state insisted that the child born from the sperm of the deceased will be raised by his biological mother, and that the egg must belong to the surrogate mother or the deceased's spouse," he said. "The ruling takes another step forward, allowing a situation in which the egg donor and the surrogate mother are not the same person, and that those who raise the child will be the deceased's parents."
When the parents heard the ruling, they cried with relief, he said. "They went to the cemetery to be with their son and tell him the news," he said. "They're hoping that in the coming year they will be blessed with an offspring from Omri."