It Takes A Village To Raise A Child 2019

Medical Law Review, Vol. 28, No. 2, pp.
317–341
doi:10.1093/medlaw/fwz033
Advance Access Publication: October 22, 2019
IT TAKES A VILLAGE TO RAISE A
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CHILD: SOLIDARITY IN THE
COURTS—JUDICIAL
JUSTIFICATION FOR
POSTHUMOUS USE OF SPERM BY
BEREAVED PARENTS
ROY GILBAR1,* AND EFRAT RAM-TIKTIN2
1
School of Law, Netanya Academic College, Netanya 4223587, Israel
2
Department of Philosophy, Bar-Ilan University, Ramat Gan 5290002, Israel
*roygilbar@gmail.com
A B S T R AC T
The practice of posthumous use of sperm raises social, ethical, and legal questions. We
examine the issue of who should be allowed to use the sperm—only the deceased’s
spouse or the deceased’s parents as well—from the perspective of solidarity and rela-
tional autonomy. Following a theoretical discussion of various accounts of solidarity and
relational autonomy, the legal status of posthumous assisted reproduction is examined
in three jurisdictions—the USA, Australia, and Israel—in which most applications to
the courts were submitted by the deceased’s parents. In Israel, we found fifteen court
rulings on requests for posthumous use of sperm and fourteen in Australia. A smaller
number were found in the case of the USA. The analysis reveals that Israeli and
Australian courts employ solidarity-based arguments to justify their decisions to allow
posthumous use of sperm, particularly when the deceased’s true wishes are unknown.
We thus conclude that the posthumous use of sperm can be legally extended to include
the deceased’s parents based on solidarity and relational autonomy arguments.
KEYWORDS: Family, posthumous, relational autonomy, reproduction, solidarity,
sperm
I. INTRODUCTION
The practice of posthumous assisted reproduction (PAR) raises social, ethical, and le-
gal questions. Some concern the type of consent required—should we require explicit
consent left by the deceased or only implicit or presumed consent based on evidence
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• 317
318 • MEDICAL LAW REVIEW
provided by his spouse or his parents? Another parameter is the identity of the party
requesting the use of sperm—should it be limited to the deceased’s spouse (through
marriage or a significant relationship), or can it be extended to also include requests
submitted by his parents who wish to collaborate with a single woman who will be the
child’s mother?1
After examining these and other related questions, we propose that requests by
both the deceased’s spouse and his parents for PAR can be based on the grounds of

solidarity and relational autonomy. Elsewhere we presented an alternative theoretical
framework for PAR based on these notions.2 Here we provide a concise presentation
of five fundamental claims based on this framework, with the following goals in mind:
(i) to expand our thesis on the value and practice of solidarity in PAR (Section II)
and (ii) to analyze case law on PAR in three Western jurisdictions in light of the sug-
gested framework (Section IV).
The five claims are as follows: first, the individual’s attitude toward the postmortem
use of his sperm can be based on one of two assumptions regarding the nature of
gametes.3 The first views sperm as a pure genetic resource, which like transplant
organs can only benefit others after the individual’s death. Thus, although the de-
ceased might have certain wishes regarding the future use of his sperm or other body
parts, they are other-centered and can only benefit other individuals. They cannot
benefit him posthumously. The second views sperm as invested with a relationship
potential, unlike other organs. Thus, the use of the deceased’s sperm will not lead to a
creation of a child but to a creation of his child. Thus, even after death, an individual
may have an interest in his offspring, since this is a relationship centered on him, and
therefore, he may have had an interest in consenting (or not consenting) to the post-
mortem use of his gametes by relatives.
Second, empirical studies of PAR4 show that the majority of respondents do not
have a personal wish for genetic continuity, though they are willing to allow their rela-
tives to make use of their sperm if they wish.5 Respondents view their relatives’ wishes
as overriding their own once they are dead and therefore do no object to the use of
their sperm by relatives.
1 We will focus on the use of sperm rather than sperm retrieval, since the former raises more serious ethical
challenges than the latter. The procedure of sperm retrieval does not violate the deceased’s dignity, and the
possible disfiguration of the body is negligible relative to organ procurement. The ethical aspect of sperm re-
trieval relates to the question of the deceased’s wish regarding the future use of his sperm, which has been
addressed in E Ram-Tiktin and R Gilbar, ‘Solidarity as a Theoretical Framework for Posthumous Assisted
Reproduction and the Case of Bereaved Parents’ (2019) 22 Ethical Theory and Moral Practice 501. It will
be dealt with here only indirectly in the case law we analyze.
2 ibid.
3 F Kroon, ‘Presuming Consent in the Ethics of Posthumous Sperm Procurement and Conception’ (2016) 1
Reproductive Biomedicine & Society Online 123.
4 There are quite a few empirical studies in this context. See JD Hans and B Dooley, ‘Attitudes Toward
Making Babies . . . with a Deceased Partner’s Cryopreserved Gamete’ (2014) 38 Death Studies 571; Y
Hashiloni-Dolev, ‘Posthumous Reproduction (PHR) in Israel: Policy Rationales versus Lay People’s
Concerns, A Preliminary Study’ (2015) 39 Culture, Medicine and Psychiatry 634; Y Bokek-Cohen and V
Ravitsky, ‘Soldiers’ Preferences Regarding Sperm Preservation, Posthumous Reproduction, and Attributes
of a Potential “Posthumous Mother”’ (2017) 79(2) Omega Journal of Death & Dying 132.
5 See Hashiloni-Dolev (n 4); Bokek-Cohen and Ravitsky (n 4).
Judicial Justification for Posthumous Use of Sperm • 319
Third, in our view, requests for PAR made by the deceased’s relatives should be
considered in light of the relatives’ grieving process. Contrary to the position that
objects to PAR on the grounds that such a request represents an unhealthy attachment
to the dead, an unwillingness to get on with life, and the creation of a memorial child,
we present an alternative view based on modern theories of bereavement. According to
these theories, grieving is a dynamic, active, and continuous process of adaptation and
reorganization of self-perception and other-perception.6 Therefore, it can be argued

that, under certain circumstances, the creation of a child is a way of remolding a previ-
ous relationship with the deceased and may also reshape relations among the surviving
family members by filling the void with hope, love, and continuity. This understanding
of the grieving process suggests that the decision to use PAR is not necessarily a futile
desire to hold on to the memory of the dead nor is it exploitation of a future child as a
memorial.7 As some studies show, the decision to bring a child into the world signifies
more than just the desire for genetic continuity.8 It allows the spouse and parents to de-
velop their personalities and capacities and to fulfill their roles as mother/grandparents
to their prospective child/grandchild, thus meeting their perceived commitment to the
deceased while viewing the child as an end in itself.
Fourth, these empirical findings can be explained using the notion of relational au-
tonomy, which explicates individuals’ choices and actions in reference to their rela-
tions with others.9 From the perspective of the deceased, he was willing to allow his
spouse or parents to use his sperm posthumously if he believed that that is their wish
and that they will benefit. From the perspective of the grieving spouse and parents,
the choice to use the deceased’s sperm can be seen as an act of fulfilling the wishes of
the deceased, as well as an act of hope and empowerment that reformulates the imper-
ishable relationship with the deceased.10
Fifth, ethical and legal discussions of PAR tend to focus on the deceased’s right to
autonomy and dignity, the spouse’s right to autonomy and reproduction, and the
parents’ lack of legal rights to use their son’s gametes. We wish to suggest that the lan-
guage of rights tends to isolate an individual’s interests from the broader context in
which those rights are exercised and from the broader motivation they have in de-
manding those rights. Individuals are not isolated units. Their choices and actions are
wrapped up with their relationships with significant others.11 The relational
6 PR Silverman and D Klass, ‘What’s the Problem?’ in D Klass, PR Silverman and SL Nickman (eds),
Continuing Bonds: New Understanding of Grief (Taylor & Francis 1996).
7 We do not argue that every request for PAR is based on healthy motives. The perception of the child as an
end in itself rather than as a memorial of another person or a symbol of something we desire is the outcome
of multiple factors, such as the values underlying childrearing and the parent’s mental health. We argue that
a bereaved person may choose to conceive a child or request PAR based on healthy motives, such as finding
new meaning in life, rather than pathological ones.
8 For example, N Ueda and others, ‘Study of Views on Posthumous Reproduction, Focusing on its Relation
with Views on Family and Religion in Modern Japan’ (2008) 62 Acta Medica Okayama 285.
9 C Mackenzie and N Stoljar (eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the
Social Self (OUP 2000).
10 MB Gill, ‘Presumed Consent, Autonomy, and Organ Donation’ (2004) 29 Journal of Medicine and
Philosophy 37. Gill argues that respect for an individual’s autonomy dictates that we fulfill a person’s wishes
once he is no longer able to fulfill them himself.
11 H Lindemann-Nelson and J Lindemann-Nelson, The Patient in the Family: An Ethics of Medicine and
Families (Routledge 1995).
perspective of autonomy takes these relationships into account when evaluating indi-
vidual autonomy. Under certain circumstances, individuals may feel that they have
moral obligations toward each other due to a shared fate, mutual goals, or some other
relevant similarity. The willingness to assist others in these cases goes beyond legal
duty and is usually referred to as solidarity. In evaluating the decisions and choices of
the deceased and his relatives in the case of PAR, it can be argued that PAR is a
solidarity-based practice within the family. Family members (particularly the spouse

and the parents) are willing to take on themselves the obligation to raise the decea-
sed’s child if according to their understanding the deceased would have expected it of
them, and correspondingly, the deceased would have been willing to allow the use of
his sperm by relatives if according to his understanding they wish to do so.
In what follows, we further elaborate on the relational perspective on autonomy
and the concept of solidarity. This will be followed by a review of policy toward PAR
in the USA and Europe and the legal position in the USA, Australia, and Israel, with
emphasis on Israel.12 The objective will be to determine whether arguments based on
solidarity and relational autonomy are evident in any of them.
I I. S O L ID A R I T Y A S A R EL A T I O N A L C O NC E P T
The notion of solidarity may be perceived by some as a collectivistic value that jeop-
ardizes individual autonomy. Scholars that embrace the individualistic version of liber-
alism emphasize individual autonomy and—under the influence of the Kantian school
of thought—view autonomy as closely connected to human dignity.13 Accordingly,
they tend to be suspicious of accounts that call for greater social cohesion or that ad-
vocate perspectives of the self that are viewed as essentially embedded in historical, so-
cial, and cultural contexts.14 According to this individualistic perspective, solidarity
threatens the individual’s ability to be free from social and cultural directives. Other
scholars have adopted a different view of the self and of autonomy. Jennings states
that the relational perspective on autonomy ‘moves away from individualism, but not
from the value of individuality’,15 and Nedelsky offers the clarification that the rela-
tional approach does not oppose individuality but rather makes it possible.16
Relational autonomy stems from feminist, communitarianist, and hermeneutic per-
spectives, which emphasize diachronic social practices over synchronic individual
acts.17 It views the individual’s identity, values, choices, and actions as (reflectively)
constituted in the community. Taylor presents a critique of the individualistic-
atomistic view of the self and claims that ‘the dark side of individualism is a centering
on the self, which both flattens and narrows our lives, makes them poorer in meaning,
12 Although we focus on sperm use rather than sperm retrieval, a few of Australian cases deal with requests for
sperm retrieval. We concentrate on sperm use since this raises the main issues we are concerned with,
namely the deceased’s personal wishes, familial and societal solidarity, and relational autonomy.
13 J Rawls, ‘Kantian Constructivism in Moral Theory’ (1980) 77 Journal of Philosophy 515.
14 Such as those proposed by A MacIntyre, After Virtue (The University of Notre Dame Press 1981); C
Taylor, The Malaise of Modernity (House of Anansi Press 1991); M. Nussbaum, Frontiers of Justice (Harvard
University Press 2006).
15 B Jennings, ‘Reconceptualizing Autonomy: A Relational Turn in Bioethics’ (2016) 46 Hastings Center
Report 11.
16 J. Nedelsky, Law’s Relations: A Relational Theory of the Self, Autonomy and Law (OUP 2011).
17 See Jennings (n 15).
and less concerned with others or society’.18 Furthermore, the language of rights
adopted by individualistic liberalism focuses on the individual as an isolated unit and
thus separates her from the social context in which these rights are exercised.
As will be clarified further, we are not rejecting the moral and instrumental impor-
tance of rights. Rather, we suggest that it should be accompanied by a relational ap-
proach that emphasizes and respects the relational aspects of human life, thus
providing a more comprehensive account of both an individual’s moral character and

that of a society. Scholars that take the relational perspective tend to be more sympa-
thetic to the notion of solidarity and its role in moral and political life.
Recently, there has been growing interest in articulating the concept of solidarity
and in defining its role in moral and political thinking.19 According to Jennings and
Dawson:
[S]olidarity recalls the structural context of individual freedom of action and the
functional integration that is necessary to that freedom. Solidarity grows out of a
sense of historical memory and tradition, and it feeds on the gratitude felt when
one recognizes the service and contributions that others have made to one’s way
of life.20
They view solidarity not as a separate and distinct ethical principle that is in tension
with other ethical principles but rather as a principle with the unique role of shaping
sensibility. The role of solidarity is thus to inform and contextualize other principles
such as liberty, dignity, and justice.
Jennings and Dawson propose four dimensions for the concept of solidarity. The
first is foundational and takes the form of ‘standing up besides’, which emphasizes the
characteristic feature of solidarity as a moral action.21 Solidarity-based practices re-
quire something more than a mere passive and empathetic feeling. Moreover, it is ac-
companied by potential risk or potentially harmful consequences. These can be
material costs or some form of mental cost since an act of solidarity makes the per-
former of the act subject to public scrutiny.
The other three express different types of relational and positional connections be-
tween the performer of the solidaristic act and the object(s) of that act. The second
dimension of solidarity takes the form of ‘standing up for’ and represents the willing-
ness to assist or provide some form of support (material or mental).22 The third
dimension—‘standing up with’—goes beyond the provision of assistance since it
involves entering into ‘the lifeworld of the other’ and understanding him. This move
from standing for to standing with requires the individual to be open to the other’s val-
ues and motives. As Jennings states, ‘Relating to other people or groups in the
18 See Taylor (n 14).

19 B Prainsack and A Buyx, Reflections on an Emerging Concept in Bioethics (Nuffield Council on Bioethics
2011) <http://nuffieldbioethics.org/wp-content/uploads/2014/07/Solidarity_report_FINAL.pdf>. See
also special issues on solidarity in Bioethics (2018) and Theoretical Medicine & Bioethics (2016).
20 B Jennings and A Dawson, ‘Solidarity – On the Moral Imagination of Bioethics’ (2015) 45(4) Hastings
Center Report 31.
21 ibid 35.
22 ibid 36.
specificity of their values and vocabularies of self-interpretation can simultaneously de-

velop respect for the specific standpoints of others.’23 This can lead to a change in
one’s initial prejudgments and perspectives toward others and may help to build a fel-
lowship between two strangers. The fourth dimension—‘standing up as’—takes the
identification with the other to its highest level.24 Identifying with the other’s values is
the strongest type of solidaristic support. It creates a deeper connection and obligation

toward others and allows the performer of the solidaristic act to do so without losing
her own identity.
Jennings and Dawson discuss the notion of solidarity at the societal level and as-
sume that solidarity arises (or can arise) in circumstances of past or current injustice
toward groups or individuals. Axel Honneth’s account also shares this assumption,
though he provides a different view of solidarity as being part of one’s ethical life.25
Honneth, as interpreted by some commentators, is influenced by Hegel’s notion of
the ‘ethical life’ (Sittlichkeit), namely providing an account of human development
that takes into consideration the relational and contextual dimensions of human life.26
Contrary to Kant’s concept of Moralität, which refers to abstract rights and duties
(and the notion of justice), Hegel’s notion of ethical life involves relations of recogni-
tion. Thus, according to Honneth, both concepts are required. He states that ‘it may
indeed be plausible to speak of universal rights and duties with regard to the recogni-
tion of the moral autonomy of all human beings; whereas such a formulation would
hardly be appropriate for the forms of recognition associated with care and esteem’.27
Influenced by Hegel and George Herbert Mead, Honneth emphasizes the impor-
tance of social relationships in the development of the individual’s identity. He con-
nects the notion of solidarity to his notion of recognition. He states that there are
three patterns of recognition that are prerequisites for self-realization and through
them the value of individual’s needs are affirmed: love, rights, and solidarity. Love is
the relationship that allows the individual to build self-confidence and initially begins
with the infant’s relation to a caring caregiver. Rights express the recognition of, and
respect for, others as moral and responsible agents (agents that are capable of acting
on the basis of reason). This pattern of connection allows the individual to develop
self-respect (in the sense of being an object that is entitled to the universal dignity of
all individuals). Solidarity is the type of connection that exists in certain societal and
cultural climates, which enables the acquisition of self-esteem. In that form of recogni-
tion, the value of the individual’s capabilities is increased since he is recognized by
others as ‘a person whose capabilities are of constitutive value to a concrete
community’.28 The three forms of recognition provide individuals with the protection
they need in order to undertake the process of articulating and recognizing their indi-
vidual identity.
23 B Jennings, ‘Solidarity and Care as Relational Practices’ (2018) 32(9) Bioethics 553, p. 558.
24 ibid 37.
25 A Honneth, The Moral Grammar of Social Conflict (MIT Press 1996).
26 R ter Meulen, ‘Solidarity, Justice, and Recognition of the Other’ (2016) 37 Theoretical Medicine &
Bioethics 517.
27 A Honneth, ‘Recognition and Moral Obligation’ (1997) 46 Social Research 16.
28 ibid.
For Honneth,29 the vulnerability of human life stems from our dependence on the
recognition of other human beings: their care, their fulfillment of needs, and their af-
firmation of our status as moral agents and as valuable members of community. From
this view of human lives and human relations, a clear insight into the difference be-
tween a moral misdeed and ill luck is generated, and that insight will play a normative
role in our discussion further. A moral misdeed is accompanied by a moral injury that
is absent in circumstances of ill luck. The injury to the individual is caused due to an

aspect of recognition that is being withheld or denied by others. In the case of PAR,
we would argue that under certain circumstances denying a request by the deceased’s
parents for PAR is equivalent to not recognizing the constitutive value of their capabil-
ities and role in the community.
Contrary to Jennings and Dawson (and to some extent Honneth) who connect
solidarity to circumstances of past or current injustice, there are scholars, such as
Jaeggi, Prainsack and Buyx, and Sandel, who do not find this element to be a neces-
sary condition for the practice of solidarity.30 Despite the differences between their
accounts, they perceive solidarity as standing up besides others, based on finding simi-
larity with others or recognizing a shared values or fate.
Prainsack and Buyx view solidarity as signifying ‘shared practices reflecting a collec-
tive commitment to carry ‘costs’ (financial, social, emotional, or otherwise) to assist
others’.31 This commitment derives from a feeling of sameness with respect to other
individuals. In contrast to Prainsack and Buyx who use solidarity in its descriptive
sense and emphasize a feeling of sameness based on the actual shared circumstances
experienced by individuals, Sandel offers a broader understanding of solidarity,32
which emerges once we realize that our fate is determined by the arbitrariness of luck
and by imagining what it would have been like to be in the other person’s shoes.
Moreover, Sandel uses the notion of solidarity in its prescriptive–normative sense,
that is, as a necessary social obligation. These obligations derive from being a member
of a specific group and involve moral responsibilities to those with whom we share a
certain history. These obligations are particular and do not require our consent since
they stem from the recognition that our life stories are interwoven with those of
others.
In its descriptive sense, solidarity is manifested in actual bonds of commitment be-
tween individuals and between groups of people and are frequently evident in inti-
mate relationships within a family where feelings of sameness are natural and
obligations toward other family members are recognized whether or not we have con-
sented to them. Studies of people’s attitudes toward PAR reveal solidarity-based prac-
tices within the family where each side is willing to defer to what he views as the best
interests of the other side.33
29 ibid.
30 R Jaeggi, ‘Solidarity and Indifference’, in R ter Meulen, W Art and R Muffels (eds), Solidarity in Health and
Social Care in Europe (Kluwer Academic Publishers 2011); B Prainsack and A Buyx, ‘Solidarity in
Contemporary Bioethics – Towards a New Approach’ (2012) 26 Bioethics 343; M Sandel, Justice: What Is
the Right Thing to Do? (Farrar, Straus & Giroux 2009).
31 See Prainsack and Buyx, ibid.
32 See Sandel (n 30).
33 See Hashiloni-Dolev (n 4); see Bokek-Cohen and Ravitsky (n 4).
In the bioethical and legal discussion that follows, we examine the argument that
requests for PAR by the deceased’s parents ought to be granted on the grounds of sol-
idarity and relational autonomy. The discussion takes place on two levels: the familial,
which deals with the parents’ commitment to their son and vice versa; and the socie-
tal, which deals with the notion of one’s ability to identify with the other’s values and
wishes and to show his/her commitment to others in a community that shares his/

her life story. As claimed by Honneth, this is a form of recognition that goes beyond
the formal duty to meet a correlating claim-right, one that affirms the constitutive
value of the individual’s capabilities in a particular community.
I I I. PR O F ES S I O N A L G UI D EL I NE S A ND P O LI C Y I N EU R O P E AN D T HE
USA
Professional ethical guidelines in Europe and the USA impose limitations on the post-
humous use of sperm. They require an explicit wish by the deceased (European
Society of Human Reproduction and Embryology; ESHRE)34 or at least an implicit
wish if a parental project had already begun (American Society for Reproductive
Medicine; ASRM).35 According to both the ESHRE and the ASRM, the rationale for
the posthumous use of embryos or gametes is based on the notion of an individual’s
rights to autonomy and reproduction and therefore can be granted only to the surviv-
ing spouse as part of a joint parental project. Although the ESHRE report mentions a
minority view which would allow the parents to use the deceased’s gametes or em-
bryos provided there is explicit consent, their argument does not relate to considera-
tions of familial or societal solidarity.
Nonetheless, considerations of solidarity are not completely absent from the afore-
mentioned ethical guidelines. According to the ESHRE, the use of gametes or em-
bryos by a third party is permitted for embryo or gamete donation. This position
implicitly advocates solidarity with an infertile couple (or a single reproducer), pro-
vided the deceased gave his/her explicit consent.
Elements of solidarity can also be found in the Pentagon’s pilot program for fertil-
ity preservation. In January 2016, the US Secretary of Defense stated that its goal is to
preserve soldiers’ fertility by covering the costs of gamete cryopreservation for active-
duty service personnel who desire it.36 Although one rationale behind the program is
to retain soldiers in the army, this does not contradict or minimize the element of soli-
darity since expected benefits from assisting others ‘are not a precondition for solidar-
ity, but nor do they undermine it’.37 The Pentagon policy can be explained not only
by our wish to express gratitude for a soldier’s sacrifice (which is not an act of solidar-
ity but rather an expression of responsibility or empathy) but also by the disposition
of standing up besides—the foundational form of solidarity according to Jennings and
34 ESHRE, ‘Task Force on Ethics and Law ESHRE Task Force on Ethics and Law 11: Posthumous Assisted
Reproduction’ (2006) 21 Human Reproduction 3050.
35 ASRM, ‘Posthumous Collection and Use of Reproductive Tissue: A Committee Opinion’ (2013) 99
Fertility and Sterility 1842.
36 P Kime, ‘Military’s New Fertility Benefit Will Let Troops Freeze Their Sperm and Eggs’ (2016) <https://
www.militarytimes.com/pay-benefits/military-benefits/health-care/2016/01/29/military-s-new-fertility-ben
efit-will-let-troops-freeze-their-sperm-and-eggs/> accessed 9 October 2019.
37 See Prainsack and Boyx (n 30) 346.
Dawson.38 It also represents the second dimension of solidarity of standing up for (the
willingness to assist or provide some form of support) and the third dimension of
standing up with, which signifies a higher level of identification with soldiers and their
family members. It can be claimed that this policy represents our ability to identify
and to find relevant aspects of sameness between us and them, as also suggested by
Prainsack and Boyx. These include, for example, the desire to start a family, the desire

to raise, nurture, and educate a child for the sake of our personal growth, and the de-
sire for a biological and even spiritual or moral legacy.
It is important to clarify that the Pentagon’s pilot program does not relate to the
postmortem use of the gametes, and in our opinion, that is a lacuna. If one of the
motives of the Pentagon’s program is to give soldiers and their relatives ‘peace of
mind’, as the Defense Secretary stated, then that concern should extend to PAR.
In the case of the British army, troops are informed of the possibility of fertility
preservation by referring them to fertility clinics for consultation. In these clinics, they
are given an explanation of the importance of explicit detailed consent regarding the
future use of their sperm, including the possibility of using it posthumously.39 To
the best of our knowledge, the British army does not explicitly support PAR, but at
the very least, the referral to a fertility clinic will inform the soldier of this possibility,
and when the necessary conditions are met (such as explicit consent by the soldier),
his spouse will be permitted to use his sperm.
In sum, although professional guidelines in Europe and the USA do not adopt a
solidarity-based approach, there are elements of such an approach in the policy of the
relevant organizations. In the next section, we will examine whether the law has
adopted this approach. Before doing so, however, one important clarification is
necessary.
Basing a request for PAR by the deceased’s relatives on the grounds of solidarity
should not be interpreted as a claim that the procedure be subsidized and certainly not
that society should encourage the deceased’s relatives to use his sperm for procreation.
Public subsidization of PAR depends on the social value of procreation in a given soci-
ety and on the availability of public resources. We propose a more limited moral obliga-
tion, such that in the case that the deceased’s relatives wish to use his sperm (given
their perceived commitment to the deceased), then society has a moral obligation not
to stand in their way. Granting the relatives’ request amounts to recognizing what they
perceive to be their constitutive value as members of the community.
I V . TH E L E G A L P E R S P E C T I V E
We focus on three different jurisdictions (the USA, Australia, and Israel) in order to
determine whether or not solidarity and relational autonomy are unique to a particu-
lar jurisdiction. We chose these particular jurisdictions in light of the relatively large
number of decisions handed down by the courts in each of them.40 In particular, we
38 See Jennings and Dawson (n 20).

39 M Townsend, ‘Partners Freeze Sperm of Troops on Active Duty’ The Guardian (London, 17 Feburary
2008) <https://www.theguardian.com/uk/2008/feb/17/military.iraq2> 9 October 2019.
40 S Simana, ‘Creating Life after Death: Should Posthumous Reproduction Be Legally Permissible Without
the Deceased’s Prior Consent?’ (2018) 5 Journal of Law and the Biosciences 329.
discuss Israeli case law at length since the vast majority of the applications to the
courts for posthumous use of sperm originated from the deceased’s parents rather
than his spouse/partner.
A. The USA
There is no specific legislation in the USA that addresses PAR.41 As a result, the deci-
sion of whether to grant a request for posthumous retrieval and use of sperm is left to

the discretion of the medical profession and private fertility clinics.42 Nevertheless, rel-
atives’ requests for sperm retrieval and use have reached the courts, though only a few
decisions have been published.43 Notably, requests have been filed not only by the
deceased’s spouse but also by his parents, and the courts have approved those
requests.44
In the cases that were published, the ruling was based almost exclusively on the
expressed wishes of the deceased. In the case of Kievernagel, heard by the California
Court of Appeal, the deceased’s widow asked to use sperm stored in a fertility clinic
where she and the deceased underwent in vitro fertilization treatment.45 In the agree-
ment between the clinic and the deceased, the deceased was able to choose one of
two options for his sperm upon his death: either to donate the sperm to his spouse or
to destroy it. The deceased had instructed the clinic to destroy the sperm upon his
death, and his wife had signed the agreement. The court rejected the spouse’s request,
relying on the clear and ‘unequivocal’ wish of the deceased that his sperm not be used
posthumously. The court did not refer to any arguments based on solidarity and rela-
tional autonomy.
In Hecht v Superior Court,46 the deceased had committed suicide. His partner
wanted to use his sperm, which was stored in a private clinic. However, his two adult
children from a previous relationship opposed the request. The California Court of
Appeal accepted the application, citing the fact that the deceased had directed the
clinic to release his sperm to his partner upon his death. In addition, the deceased had
written in his will that he hopes that his partner would use the sperm after his death
to bear a child. He even left a letter to his future child. This evidence was influential in
the court’s decision to grant the partner’s request. The court did not discuss
solidarity-based arguments.
Recently, the Supreme Court in New York upheld a request for sperm use filed by
the parents of a cadet at West Point Military Academy who had died in an accident.47
The deceased had no partner and did not express a view on the subject prior to his
death. The court approved the request based on evidence presented by the parents,
indicating that he had expressed a wish to have children.
41 The Uniform Probate Code and the Uniform Parentage Act have some relevance here (although the former
addresses a situation in which the child has already been born). See Uniform Probate Code ss 2–120
(amended 2010), 8 pt 1 ULA 130 (2013). See Simana (n 40).
42 See Simana (n 40) 5.
43 For a recent review of the unpublished cases, see ibid 5–6.
44 ibid.
45 Estate of Kievernagel (2008) 166 Cal App 4th 1024.
46 (1993) 16 Cal App 4th 836.
47 Matter of Zhu (2019) NY Slip Op 29146.
The judge did not rely explicitly on solidarity or relational autonomy, but it seems
that they had an influence on the final decision. As for societal solidarity, the judge
cited the parents’ statement that the deceased ‘had always been motivated by a desire
to help others’. Indeed, it was mentioned that his donated organs saved the lives of
two people. Moreover, the parents stated that the deceased embarked ‘upon a career
in service to his fellow citizens and, as a military doctor, to his comrades in arms’,
which highlights ‘his generosity of spirit’. As for familial solidarity, the judge concluded

that ‘there is a consistent thread running through his short life: the primacy of family
and family relationships’. It was clear that both the deceased and his parents shared a
common wish, namely to maintain continuity in their family by means of having a
child. Although not explicitly stated by the judge, it seems that one of the main justifi-
cations for approving the request was the understanding that an individual is part of a
family and that his wishes can be fulfilled through familial relationships.
B. Australia
There is no uniformity in Australian law regarding PAR. With respect to conditions
for the use of a deceased’s sperm, South Australia has adopted two conditions: that
the deceased provided consent and that the sperm was retrieved and stored before his
death. In Queensland, there is no relevant legislation, and as a result, the courts have
relied on the ethical guidelines published by the Australian government. These guide-
lines require the deceased’s consent for his spouse to use the sperm or that the spouse
can show that the deceased would have supported such a request.48 Similarly, in
Victoria, the deceased’s consent is required by the Infertility Treatment Act of 1995.
Victoria’s legislation is important in our context. The Act establishes four guiding
principles that appear to reflect both familial and societal solidarity. The first is the pri-
macy of the child’s welfare and interests, while the second concerns the protection of
human life.49 The other two principles in our view reflect considerations of solidarity
and relational autonomy.
The third principle states that the interests of the family should be taken into con-
sideration; however, the term ‘family’ is not defined by the Act. As stated by an
Australian court in the case of YZ, ‘the concept itself is amorphous’ because it can
mean first-degree relatives, such as parents or children, but it can also mean any group
of people closely related to the future child, even stepsiblings or adopted children of
the deceased or the spouse.50
In YZ, the court accepted the request made by the deceased’s spouse to retrieve
the deceased’s sperm. However, since legally she could not use it in Victoria, the
spouse asked the court to allow her to take the sperm with her to the Australian
Capital Territory. The Victorian Civil and Administrative Tribunal granted her re-
quest.51 The judge adopted a broad definition of the term ‘family’, which included a
48 Australian Government, National Health and Medical Research Council, ‘Ethical Guidelines on the Use of
Assisted Reproductive Technology in Clinical Practice and Research’ (2017) <https://nhmrc.gov.au/
about-us/publications/ethical-guidelines-use-assisted-reproductive-technology> accessed 9 October 2019.
However, these guidelines lack a formal legal status.
49 A comprehensive discussion of the first two principles is beyond the scope of this article.
50 Re YZ and Infertility Treatment Authority [2005] VCAT 2655.
51 ibid.
group of people into which a child is born. In the judge’s view, the child’s family
clearly includes his mother (the deceased’s spouse) but can also include other relatives
such as the children of the deceased’s spouse, her parents and those of the deceased,
and even uncles, aunts, or cousins on either side. This broad definition can be seen in
the judge’s statement that ‘[t]he notion of ‘family’. . . does not even require some
blood relationship with the person whose family is under consideration.’52

Nonetheless, the judge stated that ‘the interests of core family members will be more
significant than family members on the periphery’.53
Interestingly, the judge expresses a relational approach that highlights familial soli-
darity when he states that the interests of the family do not refer to the individual fam-
ily members but to the family as a unit. The judge’s words can be viewed as raising
the issue of whether a decision to accept the request by the spouse or the parents pro-
motes the welfare, common goals, and aspirations of the family as a group, rather than
the wishes of a particular relative. Indeed, in YZ, the judge expressed a familial ap-
proach when he stated that it is ‘likely that such a decision will bring the various mem-
bers of the family closer together, but also it will give them joy and inspiration’. These
words, in our view, reflect Sandel’s approach to solidarity since Victoria’s laws and the
court’s decision impose a duty on decision makers to consider the interests of the fam-
ily as a group.
The fourth guiding principle in the Act states that ‘infertile couples should be assis-
ted in fulfilling their desire to have children’. Clearly, this implies a message of societal
solidarity by imposing a moral—if not legal—duty to provide medical support to indi-
viduals who want to become parents. In the YZ ruling, the judge stated that there is a
single prospective mother (the deceased’s spouse), and she is most likely fertile. The
judge, however, expressed a broad solidarity-based approach by interpreting the term
‘couple’ to also include individuals, such as the deceased’s spouse, and he stated that
she is ‘socially infertile’ due to the death of her partner. Thus, the judge’s position
expands the scope of the solidarity-based moral duty to help those who wish to repro-
duce. It reflects what Jennings calls standing up besides and more specifically the third
dimension of solidarity, namely standing up with. Undoubtedly, most female spouses
can reproduce naturally, but among them are those who wish to bear a child from
their deceased husband or partner. Even if most members of society do not have such
a wish, society should be open to different points of view. Recall that this dimension
of solidarity involves entering into the lifeworld of another individual, understanding
her and hence respecting her wishes.54 Determining that society should help these
women not only reflects a wide scope for this moral and societal duty but also a socie-
tal recognition of the family as an important social institution in society.55
The case of YZ is important in view of its reliance on familial and societal solidar-
ity. But it is not the only case in which judges approved a request for sperm retrieval
and use. There are several cases in which the courts approved requests based on
52 ibid 9.
53 ibid.
54 ibid, para 18.
55 The judge in YZ stated that these four guiding principles heavily influenced his decision to grant the request
of the deceased’s spouse to export the deceased’s sperm from Victoria to New South Wales where she lives.
familial support. In the case of Floyd, which was heard in Queensland, the court ac-
cepted the spouse’s request for sperm retrieval, stating that she ‘has the support in the
application from the mother and the rest of the family of the deceased’.56 These words
reflect, in our view, Sandel’s view of solidarity and Jennings and Dawson’s second di-
mension of solidarity, namely standing up for.
Interestingly, all fourteen requests were submitted to the Australian courts by the

spouse rather than the parents. In three cases, the courts refused to allow either the re-
trieval or use of the sperm, mainly due to lack of legislation permitting it.57 However,
of the nine remaining decisions that granted the requests to retrieve or use sperm, ele-
ments of familial solidarity and relational autonomy were mentioned in five.
C. Israel
In the absence of any specific legislation on the subject, the Israeli Attorney General
(A-G) issued legal guidelines in 2003.58 The guidelines are legally binding on clinicians
who work in governmental medical centers, but not on the courts. Thus, judges are
free to ignore them. Nonetheless, the courts address the guidelines in their decisions.
The A-G’s guidelines allow only the deceased’s spouse to request retrieval of the
sperm and to use it to fertilize her own eggs. If the deceased had no spouse at the
time of death, there is then no one who has the right to request sperm retrieval and
its use.59 The guidelines confer no independent legal status on the deceased’s parents.
The parents can testify about the deceased’s wishes and views on the subject but have
no legal right to become grandparents.60
The guidelines are based on two principles. The first is respect for the personal au-
tonomy of the deceased. If he explicitly expressed a wish that his sperm be used after
his death, then his spouse—if she so wishes—is permitted to use it. Moreover, the
guidelines use the term ‘presumed wish’, which allows the spouse to provide evidence
regarding the deceased’s wishes (if he did not leave any explicit instructions on the
matter).
The second principle in the guidelines is the existence of an intimate relationship
between the deceased and his spouse while he was alive. The guidelines emphasize that
bringing a child into the world is a shared and collaborative project, which is based on
two people living together as a couple. This element is clearly absent from the relation-
ship the deceased had with his parents while he was still alive.61 Thus, there is no sign
of solidarity-based arguments in the A-G’s guidelines that might justify PAR.62
56 Re Floyd [2011] QSC 218. For a similar case in South Australia, see Re H, AE (No 2) [2012] SASC 177, par-
as 36–37;ibid. In a separate judgment, the court allowed the spouse to use the sperm: Re H, AE (No 3)
(2013) 118 SASR 259 . For additional cases that highlight the family’s support as a justification, see Ex
Parte M [2008] WASC 276 and Re Edwards [2011] NSWSC 478.
57 See Baker v State of Queensland (6 January 2003); MAW v Western Sydney Area Health Service [2000]
NSWSC 358; Re Gray [2000] QSC 390.
58 Attorney General’s guidelines, Retrieving Sperm after Death and Its Use (Attorney General Office 2003).
59 However, when the deceased had no spouse, the guidelines allow other relatives to approach the courts and
obtain their approval to retrieve the sperm. See para 24(d).
60 See s 22.
61 See s 21.
62 The Sperm Bank Bill 2016, which was introduced by the Ministry of Health in October 2016, adopts the A-
G’s guidelines and its underlying position. For the Israeli professional guidelines issued by the Israeli
In contrast to the A-G’s guidelines, solidarity-based arguments appear in court

decisions on this issue. First, solidarity appears in the familial context when the courts
consider the relationship in the context of the extended family on both sides. Thus,
there are judges who discussed the parents’ moral commitment to help the deceased
and his spouse in raising their future child. As will be analyzed further, the judges may
have viewed this moral commitment as deriving from a communitarian obligation to

the members of one’s community.
Second, solidarity appears in the societal context of the relationship between the
deceased’s parents and the state. In some cases, particularly when the deceased was a
soldier, the parents raised the solidarity flag, arguing that since they lost their child
during his military service, the state must in return respect their right to use their
son’s sperm to produce a grandchild. In other words, the parents put forward the fol-
lowing argument: I met my civil duties and handed my son over to the state so that
he could help protect it. I lost my son, so the state in return should acknowledge my
wish and right to have a grandson and accept my request. We will examine below how
the courts dealt with this argument.
Overall, lower courts in Israel have extended the scope of posthumous use of
sperm by approving not only the spouse’s request but also that of the deceased’s
parents, particularly when the deceased did not have a spouse. Interestingly, several
courts discussed solidarity-based arguments.
At least fifteen requests for posthumous use of sperm have been dealt with by
Israeli courts over the last two decades. Four were submitted by the deceased’s spouse
and eleven by his parents. The requests were dealt by the magistrate courts for family
affairs, which approved all but one. Three of the fifteen cases were dealt by district
courts and the Supreme Court acting as appellate courts. The requests can be divided
into three groups: the first was submitted by the spouse. The second was submitted
by the parents when there was no spouse.63 This group is divided into two subgroups:
one in which the deceased explicitly stated that he wishes or approves the posthumous
use of his sperm, and the other in which the deceased did not address the issue while
he was alive. The third group was submitted by parents when there was a spouse but
she had no interest in using the sperm for her own eggs. The parents (in both the sec-
ond and third groups) intended to come to an arrangement with a single woman who
would use the sperm to become pregnant and would raise the child as her son. The
deceased’s parents would be the child’s grandparents.64
1. The first group: requests by the spouse

This group consisted of four requests brought before the courts. The deceased did
not leave explicit instructions concerning the posthumous use of sperm in these cases,
Fertility Association, see E Ram-Tiktin and others, ‘Expanding the Use of Posthumous Assisted
Reproduction Technique: Should the Deceased’s Parents Be Allowed to Use His Sperm?’ (2018) 14
Clinical Ethics 18.
63 A spouse is defined as a female partner who had a meaningful intimate relationship with the deceased before
his death, whether or not they were married.
64 There was one exceptional case in which the deceased’s parents wanted to use the sperm to have a grandson
through surrogacy and raise him/her as their child. See Case 16699-06-13 Asher Shachar v Attorney General
of Israel (Nevo, 2016) Petah-Tikva Family Court (hereafter, Shachar).
but in two of them, there were adequate indications that he would have wanted to
have a child with his wife.65 In the other two cases, the courts relied heavily on the
spouse’s testimony who stated that both she and the deceased wanted to have a child
together. Interestingly, in two cases, the court justified its approval by assuming that
both the deceased’s parents and the spouse’s parents will assist the spouse in raising
the future offspring.66

In our view, the courts in these decisions perceived the requests in a broad familial
context, which goes beyond the relationship between the spouse and the deceased.
For example, in one case, the court made the assumption that the deceased’s parents
and the spouse’s parents would provide assistance to the spouse in raising the child.
In our view, this reflects a relational approach to autonomy because it takes into con-
sideration the broader familial context in which the decision to conceive the child and
raise him was made, and it implies that bringing a child into the world is a project un-
dertaken by the extended family and not by the spouse alone.
2. The second group: parents’ requests when the deceased had no spouse
In the first of the two subgroups (which involved four cases), the deceased left clear
instructions permitting his parents to use his sperm. This led the courts to approve
the requests, highlighting the need to respect the deceased’s wishes and his right to
autonomy. In this group, there was no mention of solidarity-based arguments, and the
courts’ judgments were brief.67
In the second subgroup, in which the deceased did not leave explicit instructions
regarding the use of his sperm (three cases), the parents sought the court’s approval
of their arrangement with a single woman who would use the sperm and become the
child’s mother.68 One case concerned a young man who deposited his sperm in a
sperm bank before undergoing treatment for cancer.69 In an article published in a
daily newspaper, he told the reporter: ‘I handed my parents their grandchildren in a
plastic cup.’ Although the parents argued that these words constituted explicit evi-
dence of his wish to have a child after death, the court responded that depositing
sperm before chemotherapy is a standard procedure for male cancer patients who be-
lieve that they will use it in a later stage when they overcome their illness.
Nevertheless, the judge decided to approve the parents’ request, relying on the right
to personal autonomy and the conversations the deceased had with his parents.
65 The deceased deposited his sperm in a sperm bank following his diagnosis with cancer. See: Case 1922/96
Jane Doe v HMC (Israel) International Medical Services (Nevo, 1997) Tel-Aviv District Court. The deceased
died during his wife’s IVF treatments. See: Case 11870/03 Y Sh v State of Israel (Nevo, 2003) Kfar Saba
Family Court.
66 Case 9040/05 A Sh v The Attorney General of Israel (Nevo, 2005) Haifa Family Court; see also Case 58540/
05 KBLA v Sourasky Medical Center- Ichilov Hospital (Nevo, 2006) Tel-Aviv Family Court.
67 Case 28130-07-14 M P v Ministry of Health (Nevo, 2014) Jerusalem Family Court; see also Case 7930-11-
09 Johns Doe v A-G (Nevo, 2011) Hadera Family Court; Case 14217-06-14 “New Family” organization v
Hadassah Ein Carem Hospital (Nevo, 2015) Tel-Aviv Family Court; Case 62401-06-16 “New Family”
Organization v Tel-Aviv Sourasky Medical Center (Nevo, 2017) Beer Sheva Family Court.
68 Notably, single women in Israel can use anonymously donated sperm from a donor. In light of the veil of
anonymity and the shortage of sperm, using a deceased’s sperm may constitute another—perhaps prefera-
ble—option for some women.
69 Case 13530/08 New Family Organization v Rambam Medical Center (Nevo, 2009) Krayot Family Court.
Interestingly, the judge emphasized the close relationship between the deceased and
his parents, as well as the opportunity of the deceased’s future child to have relatives
from the paternal side. The judge added that undoubtedly the deceased’s parents
want to give their future grandson the support of a loving family.70
In our view, the judges acknowledged the importance of the family as a small com-
munity built on mutual support. This accords with the approach to solidarity taken by
Sandel and other scholars mentioned earlier who argue that a community or a particu-

lar group of people (such as a family) are connected by common goals and bonds of
mutual obligations. This is reflected in the judge’s comments that the deceased’s
parents were expressing their familial obligation and willingness to provide support to
the future child (and his mother).
The second case in this subgroup involved a soldier who died while on active
duty.71 In addition to the commonly used justification of respect for the implied wish
of the deceased to have children (relying on oral evidence provided by his mother
and a fellow soldier), the judge highlighted elements of solidarity both in the familial
and societal contexts.
Focusing on societal solidarity, the judge made a connection between the loss ex-
perienced by the deceased’s mother and her request to use the sperm:
There is before us a bereaved mother of a dead soldier who was forced to go

through a terrible experience of pain and bereavement. Despite the overwhelm-
ing experience and rather than allowing it to defeat her, she has gone on with
her life in the years since, realizing that she must seek to benefit others, while
finding meaning in life with the assistance of partners who will help her in her
fight, which is actually our fight.72
Although this statement about bereavement was not explicitly relied on by the court
to justify its approval of the request made by the deceased’s mother, it was clear that
the judge was influenced by the fact that the deceased had given his life for his country
and by the personal cost the bereaved mother had paid. This led the court to acknowl-
edge that under the particular circumstances of the case, the state has, at the very least,
an obligation not to stand in the mother’s way. In Honneth’s terms, the judge’s refer-
ence to the mother’s experience of bereavement and her attempts to achieve personal
growth expresses solidarity, ie, the third form of recognition, which affirms her value
as a member of the wider community.
In addition, the judges’ statement reflects Sandel’s approach to solidarity. It is clear
from the judge’s statement that he is highlighting the common history and life story
shared by Israelis when he states that the personal fight of the bereaved mother is ‘our
fight’. Thus, the fact that Israelis share a common experience in having to risk their
lives to protect the country should form the basis for a societal obligation to grant the
request of bereaved parents to use their son’s sperm.
70 ibid 20.
71 Case 12977-01-14 Jane Doe v Ministry of Health (Nevo, 2015) Kiryat Shmona Family Court.
72 ibid, para 119.
3. The third group: parents’ requests when the deceased had a spouse
Four cases reached the courts in which parents submitted requests to use their son’s
sperm in the case that the deceased’s spouse had no desire to do so.73 The most infor-
mative case was SM. In that case, the deceased’s spouse objected to the parents’ re-
quest to use the sperm. The magistrate court—based on the evidence given by the
deceased’s parents, relatives, and close friends—ruled that the deceased wanted to

have children and would have made efforts to fulfill this wish either with or without
his spouse.74 Thus, the court did not accept the main position of the A-G’s guidelines,
namely that bringing a child into the world is a collaborative project, shared only by
the two spouses, and that it is based on their intimate relationship. Furthermore, in
accepting the parents’ request, the court emphasized the significant role played by the
parents in the couple’s life before and after their son’s death. This, in our view, reflects
a relational approach that perceives the individual and his wishes, values, and identity
as closely connected to those of his spouse, with whom he shares his life.
The case of SM reached the district court, which rejected the spouse’s appeal and
approved the magistrate court’s decision to allow the parents to use the deceased’s
sperm.75 In their discussion, the judges mentioned the close relationship between the
deceased’s spouse and his parents while the deceased was still alive. The couple in-
volved the parents in their lives and accepted their advice on various matters.
However, the parents argued in court that their relationship with the deceased’s
spouse gradually deteriorated after their son’s death. She stopped coming to memorial
services and special ceremonies. The spouse formed a meaningful relationship with a
new partner and gave birth to two children.
In its decision, the district court emphasized the right to parenthood. The judges
weighed the spouse’s right to make reproductive decisions against the ‘parents’ right
and duty to respect the [deceased’s] wish’.76 The judges did not explain what the basis
of that right is. They merely stated that since the deceased expressed a wish to have
children when he was alive, and since the spouse does not want to use the sperm, the
deceased’s parents acquire a formal legal status and have an independent say in the
matter. Furthermore, in resolving this conflict of rights, the judges determined that
when the spouse expresses no interest in using the sperm for her own purposes, she
forfeits her unique position and legally becomes a witness (like any other) who can
provide evidence regarding the deceased’s wishes.
The judges noted that in this case, there was no doubt that the deceased wanted
children, and therefore it can be assumed that he would not have objected to his
parents’ request in the case that his spouse has no interest in using his sperm. The
grounds for this assumption were, according to the court, the close relationship the
deceased and the spouse had with his parents. In addition, the district court held that
73 Case 31344-09-13 Jane Doe v Sheba Medical Center (Nevo, 2015) Petah-Tikva Family Court, Case 27169-
11-13 Johns Doe v The Deceased (Nevo, 2016) Jerusalem Family Court; Case 16699-06-13 Shachar v Public
Prosecutor Office Merkaz District (Nevo, 2016) Petah Tikva Family Court; Case 36340-07-15 A Sh v The
Attorney General (Nevo, 2017) Petah Tikva Family Court.
74 Jane Doe, ibid.
75 Appeal 7457-05-15 MA v HM (Nevo, 2015) Lod District Court.
76 ibid, para 8.2.2.
it can be assumed that the deceased ‘would have supported his parents’ wish who in
return perceive it as respecting his wish’.77
In this last statement, the court presents a strong relational approach to autonomy,
coming to the conclusion that the wishes of the deceased and those of his parents are
aligned, such that granting their wish is actually fulfilling the deceased’s wish as well.
In addition, it was clear that the level of emotional closeness plays a part in determin-
ing the status of the parties. Thus, when the spouse is close to the deceased’s parents,

she has a say in the matter, but when she has already established a new life and gradu-
ally distanced herself from the deceased’s parents, then she forfeits her status.
Similarly, the parents were in a strong position in this situation because they were
close to the deceased and involved in his life. This demonstrates the importance of fa-
milial relationships in determining the fate of the deceased’s sperm.
The case of SM eventually reached the Israeli Supreme Court.78 It is the most im-
portant PAR case in Israeli law to date. Four out of the five judges accepted the
spouse’s appeal and rejected the parents’ request to use the deceased’s sperm. The
fifth judge gave a minority opinion, holding that the parents’ request should be
accepted.
Chief Justice Hayut, for the majority view, cited the argument put forward by the
parents:
Parents who were considered to be capable of raising children and sending them
into combat – their right becomes non-existent. Parents are good enough when
their son is alive, but they become meaningless when he dies. We raise our chil-
dren, love them, nurture them, care for them, they are our life, the essence of
our existence. When they are eighteen we hand them to the state, for military
service, and if something happens to them, our parenthood is robbed from us,
we are nullified.79
However, Chief Justice Hayut does not address the parents’ solidarity-based argu-
ment. Instead, she held that the deceased’s parents have no independent legal status
when the spouse is alive and can make decisions. Chief Justice Hayut followed the A-
G’s guidelines and presented a contractual model based on the notion that bringing a
child into the world is a project shared exclusively by the couple. Her judgment took
the perspective of Moralität (rights and duties), rather than that of Sittlichkeit (which
relates to the relational dimension of life and is associated with care). Nonetheless,
Chief Justice Hayut did not rule out the option of approving parents’ requests in ex-
ceptional circumstances, such as in the presence of clear evidence that the deceased
had a troubled relationship with his spouse, leading him to take actions to have a child
without her while he was alive. In light of her view, it is not surprising that Chief
Justice Hayut did not employ solidarity-based arguments.
Justice Mazuz’s opinion summarizes the majority view. He stated that as long as
the deceased did not explicitly express his wishes regarding the use of his sperm after
77 ibid, para 8.2.6.

78 Appeal 7141/15 Jane Doe v Jane Doe (Nevo, 2016).
79 ibid 21.
death, no one but the deceased’s spouse is allowed to use it. He stressed that ‘joint
parenthood is an essential and central component in this partnership and the shared
decision of both spouses’.80
In our view, Justice Mazuz’s judgement emphasizes a narrow relational approach
expressed by the exclusivity granted to the deceased and his spouse, which is part of
the close and intimate relationship between them. This being the essence of his view,

it is no surprise that he does not present arguments based on broad familial solidarity
in his opinion.81
Interestingly, the judge who discussed solidarity-based arguments was Justice
Melcer who provided the minority view. He stated that while bereaved parents are left
alone to deal with their loss, the deceased’s spouse has the blessed opportunity to go
on with her life and attempt to rehabilitate it. In these circumstances, he explained,
‘not only does the heart goes out to the deceased’s parents but the law stands by them
in preserving the deceased’s right to continuity’.82
It is clear, in our view, that Justice Melcer accepted the parents’ solidarity-based ar-
gument in the societal context. Justice Melcer agrees with the view that requests sub-
mitted by soldiers’ parents should be granted because it is they who bear the ultimate
cost. It is worth emphasizing that according to Justice Melcer, the fact that the parents
lost their son during military service gives them a legal right to exercise the deceased’s
right to continuity. If we accept that we do not know and cannot determine the true
wishes of the deceased, and if we accept that an individual has no rights once he is
dead,83 then Justice Melcer, like other lower-court judges, is respecting the familial
wish for continuity. And as we explained earlier, the parents’ request reflects familial
unity and a sense of solidarity that arises from ensuring that the family survives and
flourishes.
Finally, and as in the case of the lower-court judges who presented solidarity-based
arguments in the societal context, Justice Melcer reflects Sandel’s approach to solidar-
ity. The social and civil obligation to serve in the army generates, according to Justice
Melcer, a societal and legal obligation to respect the request of bereaved parents to
use their dead son’s sperm. To some extent, his judgment reflects Jennings and
Dawson’s third dimension of solidarity, which emphasizes the importance of a willing-
ness to be open to the point of view and choices of others and the ability to identify
with them and advocate for them, even when your own personal views or choices
may differ.
The case of SM is interesting not only due to the different considerations pre-
sented by the judges but also because it represents a conflict of interest between the
deceased’s spouse and the deceased’s parents. In this context, the question arises as to
whether the discussion should focus on respect for individuals’ rights or on obligations
of solidarity. An extensive discussion of this point is beyond the scope of this article,
but we hope that the following discussion will suffice to clarify our position.
80 ibid.
81 ibid.
82 ibid, para 29 (emphasis added).
83 The Israeli Legal Capacity and Guardianship Act 1962, Sefer Hukim 380 (17 August 1962) states in s 1 that
‘every person is eligible for rights and duties from birth to death’.
First, recall that our suggestion of solidarity as an alternative theoretical framework

is not meant to replace the consideration of rights but rather to serve as a complemen-
tary tool in assessing requests for PAR and understanding the motives and rights of
the parties from the perspective of relational autonomy. Second, although it is ac-
cepted that the spouse has a right not to conceive from the deceased sperm, it is less
clear that she has a right to veto what would be done with the deceased’s sperm.

Lastly, and most importantly, in cases that involve a conflict between rights and corre-
sponding duties (and certainly negative duties), such as the spouse’s right not to use
the sperm versus the obligation of solidarity, the former consideration should domi-
nate the latter, given the imperative to respect the negative freedom of individuals.
However, in the case of SM discussed earlier, it is possible to respect the negative free-
dom of the spouse and to acknowledge the parents’ request by supporting it.
Notably, three of the five judges in SM did not rule out the option of approving
the parents’ request when the deceased did not leave a spouse. Although this is impor-
tant in the context of this article, it must also be acknowledged that the majority
judges reflect a rights-based discourse, coupled with a narrow relational approach that
highlights the close and intimate relationship shared by the couple. Thus, it must be
admitted that solidarity-based arguments receive a cold shoulder in the Israeli
Supreme Court.
In the other three cases in this group, the deceased’s spouse expressed no interest
in using the sperm for her own eggs and did not object to the parents’ request. In one
case, the deceased died in a car accident, and his spouse could not make up her mind
whether she wanted to use the sperm. The court accepted the parents’ request to en-
ter into an agreement with a prospective mother with whom they did not have any
previous relationship.84 In justifying the parents’ request, the court emphasized the
close relationship that had existed between the deceased and his parents. The judge
made the assumption that the deceased would have respected his parents’ wish (in
the case that his spouse would have no interest in using his sperm). Thus, the court
adopted a relational approach, perceiving the individual as having webs of close rela-
tionships whose interests should be taken into account when making reproductive
decisions. In our view, by assuming that the deceased would have respected his
parents’ request, the court accepted the argument of familial solidarity employed by
the parents.
A different case in this group is the most controversial to have reached the Israeli
courts. In Shachar,85 the parents wished to use the sperm of their dead son who had
been killed in a car accident during his military service. The parents wanted to have a
child through surrogacy and then raise it themselves. The deceased’s spouse had no
interest in using the deceased’s sperm for herself and supported the parents’ request.
Legally, the request should have been dismissed because Israeli law on surrogacy does
not permit such a procedure.86 Nonetheless, the magistrate court approved the
parents’ request. In justifying its decision, the court relied on solidarity-based
84 Case 27169-11-13 John Doe v The deceased (Nevo, 2016) Jerusalem Family Court.
85 Shachar (n 64).
86 The Israeli Embryos Carrying Agreements Act 1996 states that surrogacy is available to heterosexual cou-
ples and single women who provide their gametes and raise the resulting child.
arguments, both in the familial and societal context. The parents argued that since
‘the deceased gave his life for his country, the state should not oppose his parents’ re-
quest to use his sperm’.87 In addition, they argued that they had had a close relation-
ship with both their son and his spouse, and that they were closely involved in the
couple’s life. Moreover, the parents argued that based on the deceased’s demanding
military career, they had anticipated that the deceased’s mother would herself raise

any future children or at least would provide substantial assistance to the couple.
Interestingly, the judge followed this line of argument by stressing that in many
families today, grandparents are closely involved in raising their grandchildren. The
judge defined the grandparents as ‘semi-parents’ and the parents as ‘weekend parents
only’.88 Although these statements may describe the reality in some families, the judge
did not provide evidence to show that this is the reality in the majority of families in
Israel. Hence, in our view, the judicial statement being made is a weak one.
The judge’s statements reflect a strong reliance on a communitarian approach
where the personal good of the individual is achieved through the fulfillment of com-
mitments by the other members of the community (the family). The common good
of the family (to survive and flourish by having children) is promoted by efforts made
by its members. The judge’s statements do not rely—at least not explicitly—on inti-
macy between family members, an argument that the parents put forward. Rather, the
judge’s perception of the family resembles Sandel’s approach to solidarity according
to which family members take upon themselves duties toward other members of the
family.
The judge also addressed the societal context by referring to the desire of the de-
ceased and his parents for continuity, particularly when the ‘parents who lost their
child during his military service, fight every day to sustain the relationship with the de-
ceased and commemorate him’.89 The judge held that the parents’ request should be
approved, particularly because ‘Israel is a pronatalist country which encourages birth,
particularly for bereaved mothers, for whom becoming pregnant is considered rehabil-
itative’.90 In our view, the judge adopted Sandel’s approach because she implicitly im-
posed a duty on society to help bereaved mothers by allowing them to use their dead
son’s sperm. Our impression of the judge’s decision is that given her comment on the
rehabilitative feature of postmortem fertilization, this societal duty is owed to the
parents, regardless of the wishes or views of particular members of the community.91
To emphasize its communitarian approach, the judge concluded her decision by
stating that ‘despite their crisis, [the parents] did not fall apart and did not suffer from
depression, but rather they picked up the pieces. Like a phoenix they continued their
87 See Shachar (n 64) para 33.

88 ibid para 133.
89 ibid para 163.
90 ibid para 169.
91 The judge’s position brings to mind Honneth’s account of solidarity in the sense of affirming an individual’s
capabilities and his contribution to the community. However, acknowledging an individual’s value to the
community must relate to her capabilities or a contribution that is made willingly and autonomously. We ar-
gue that the judge’s view implicitly puts pressure on women to give birth following the death of their spouse.
In this context, see N Berkovitch, ‘Motherhood as a National Mission: The Construction of Womanhood
in the Legal Discourse in Israel’ (1997) 20(5/6) Women’s Studies International Forum 605.
life with courage and bravery.’92 This last statement highlights the sacrifice of the
parents, which according to the judge justifies—at least implicitly—the parents’ re-
quest to use their son’s sperm. The statement is not unique to this case. As described
earlier, other judges have used the same terminology, linking the loss for the sake of
the greater good of society to society’s moral obligation to those who suffer that loss.
This discourse undoubtedly goes beyond the autonomy and rights-based approach
adopted by the A-G’s guidelines.

Shachar then advanced to the district court.93 In light of the Supreme Court’s deci-
sion in SM, the district court in this case rejected the parents’ request. In justifying
their decision, the judges held that it is necessary to limit the use of the presumed
wish of the deceased since it primarily relies on presumptions and speculation.
Furthermore, the judges held that ‘the bereaved parents replace the wishes of the de-
ceased with their personal wishes, pain and loss, while the deceased’s wish remains
unknown’.94 This statement reflects the opposite view to that articulated by the magis-
trate court. Notably, the judges in the district court did not present solidarity-based
arguments. This is not surprising since those arguments would justify a decision to
grant the parents’ requests. The case finally reached the Supreme Court. In view of its
decision in SM, the Supreme Court dismissed the parents’ request.95
The last and most recent case in this group concerned X, a young man who was
murdered shortly before marrying his spouse. X’s parents submitted a request to use
his sperm. Y, the deceased’s brother, committed suicide 5 months before X’s death.
X’s spouse agreed to the parents’ request, expressing no interest in using the sperm to
fertilize her own eggs. The magistrate court followed the Supreme Court’s decision in
SM and dismissed the parents’ request.96
However, on appeal, the district court accepted the parents’ request and allowed
them to use their son’s sperm.97 The judges therefore had to distinguish this case
from the Supreme Court’s decision in SM. In granting the parents’ request, the judges
relied on the evidence provided by X’s sister and mother who were not challenged in
court. They both stated that X wondered why sperm had not been retrieved from his
brother Y when he committed suicide, expressing the view that sperm should have
been retrieved from Y because ‘there should be a child’. This might imply that X ap-
proved the posthumous use of his own sperm. Indeed, the evidence provided by X’s
sister and mother led the three judges to state that ‘the exceptional circumstances re-
quired to prove the presumed wish of the deceased to have children generally, and to
have a child without his spouse, are fulfilled in light of the deceased’s expressed view
regarding the retrieval of sperm from his dead brother’.98
Leaving aside the courts’ problematic deviation from the Supreme Court’s judg-
ment in SM, we do not concur with the judges’ reasoning. We believe that the three
judges went too far in concluding that if the deceased wanted his brother’s sperm to
92 See Shachar (n 64) para 204.

93 Appeal 45930-11-16 The State of Israel v Asher Shachar (Nevo, 2017) Lod District Court.
94 ibid, para 48.
95 Appeal 1943/17 Asher Shachar v The State of Israel (Nevo, 2017).
96 Appeal 50500-09-17 A Sh v Attorney General of Israel (Nevo, 2018) Lod District Court.
97 ibid.
98 ibid 4.
be retrieved, then he would have been in favor of a woman he did not know having
his child in the case that his spouse had no interest in using his sperm posthumously.
In our view, the logic is tenuous in this case.
With respect to solidarity, the question hinges on whether the judges’ decision was
based on familial solidarity, ie, allowing family members to fulfill their relative’s wishes
(or what they perceive them to be), or whether they were respecting the individual’s
right to continuity. Since the judges expressed no explicit view on this question, we

can only speculate. The essential question in our context is whether the deceased
expressed a wish that his sperm be used by a woman other than his spouse. In our
opinion, there was no such evidence in this case. The only available evidence was a
statement made by the deceased about retrieving sperm from his dead brother who
had left no spouse. Therefore, our impression is that by granting the parents’ request,
the judges had accepted the argument presented by the family as part of their com-
mon wish for continuity. It thus appears that the judges allowed emotional considera-
tions (such as the parents’ distress and their wish for familial continuity) to be taken
into account and as a result granted the parents’ request. Since emotional considera-
tions have limited, if any, legal weight in judicial decisions, the judges were not able to
state them explicitly. Finally, the case provides striking proof that judges have used
solidarity-based arguments in the familial context in order to justify a decision to ap-
prove parents’ requests. In doing so, they appear to be prepared to deviate from legal
precedent, even when it is unambiguous. This case was then brought before the
Supreme Court, which dismissed the parents’ request based on the decision in SM.99
4. Analysis
In sum, there have been fifteen published cases discussed by the Israeli magistrate
courts. Solidarity-based arguments were employed in seven of them, which usually in-
volved requests by the deceased’s parents and cases in which the deceased did not
leave explicit written instructions as to his wishes. The courts in these seven cases dis-
cussed solidarity-based arguments in the familial context and in two cases in the socie-
tal context.100 Notably, these two cases concerned soldiers who died during their
military service (though only one lost his life in combat). Finally, the courts employed
solidarity-based arguments in determining the presumed wish of the deceased. When
the deceased did not explicitly express his wishes, the judges based their decision on a
relational approach with communitarian elements, while emphasizing the mutual
moral obligations between close family members.
The analysis also examined the small number of cases considered by the appellate
courts (district courts and the Supreme Court). Requests for PAR were discussed six
times by these courts, and solidarity-based arguments appear in four of the decisions.
Therefore, it appears that the legal requirement of presumed consent (or presumed
wish) is the vehicle by which judges influence policy in this context. Since the
99 Appeal 6046/18 The Attorney General v Jane Doe (Nevo, 2019).

100 Nonetheless, three of the fifteen cases reached the appellate courts, which also discussed, as mentioned,
solidarity-based arguments, both in the familial and societal contexts. Therefore, solidarity arguments
appeared in a total of eleven of the twenty judgments that dealt with requests for PAR. Of the twenty cases,
the familial context was discussed in ten and the societal context in four (and there were cases in which the
court discussed solidarity in both contexts).
tendency of the judges in the magistrate courts is to approve parents’ requests (in
fourteen of the fifteen requests heard), they highlight the close relationships between
the deceased (or the couple) and the parents. The judges’ conclusion—often not ex-
plicitly stated—is that the deceased would have supported his parents’ request. Their
approach also highlights another aspect of solidarity in the family, namely the particu-
lar moral obligation children feel toward their parents in this context. The judges held
the view that in light of the close relationship between parents and children, parents

should have the option of using their son’s sperm. This is based on the assumption
that in a close relationship, one side usually does not object to the wishes of the other,
and that an intimate relationship creates mutual moral obligations without which the
bonds between community members cannot exist.
The terminology used in the courts when employing solidarity-based arguments
more closely resembles that of Sandel’s account of solidarity than that of Prainsack
and Buyx. While Prainsack and Buyx argue that a sense of solidarity may emerge
among individuals if they share a feeling of sameness, Sandel perceives solidarity as a
social obligation, without which the community’s moral bonds would weaken and the
community would struggle to exist. Thus, while Prainsack and Buyx include the ele-
ment of choice in their account, it is hardly present in Sandel’s account. Interestingly,
the judges adopt, at least implicitly, an approach that allows parents to use the decea-
sed’s sperm based on social obligations, most notably in cases involving soldiers. The
underlying message of the decisions is that these obligations are part of being a mem-
ber of a family, and they help to sustain the family as a small and intimate community,
thus promoting the common good of its members. This narrative is also relevant in
the societal context where these obligations help sustain a society and enable it to
achieve shared goals. In other words, the judges implicitly took the position that
shared experience leads to a social obligation to help one another. Thus, if parents ful-
fill the moral obligation to send their child to fight ‘our fight’, and he is killed as a re-
sult, they can then invoke a societal obligation to respect their request to use his
sperm.
V . C O NC L U S IO NS
Solidarity-based arguments coupled with a relational approach to autonomy can jus-
tify parents’ requests to use their dead son’s sperm and to have a child with a woman
other than his spouse.
It is not, of course, being claimed that parents have a moral obligation to use their
deceased son’s sperm nor that parents have an inherent right to do so. Rather, we ar-
gue that it is difficult to dismiss solidarity-based arguments put forward by parents,
both in the familial context (when they are deeply involved in their children’s lives
and will bear the emotional, economic, and functional costs of raising their grand-
child) and in the societal context (in the case that their son dies prematurely either in
military service or in some other traumatic event). Thus, when policy makers, clini-
cians, lawyers, and bioethicists consider whether to allow parents to use PAR,
solidarity-based arguments should be taken into account.
We believe that the various accounts of solidarity discussed here can provide an ad-
equate justification for allowing parents of either soldiers or civilians to use sperm
posthumously. According to Sandel’s approach, when individuals serve in the army or
carry out their civic duties in some other way, they have fulfilled their moral obliga-
tions to society. In return, society should grant a request for PAR submitted by the
spouse or parents.
It was suggested that solidarity serves as a rationale for gametes cryopreservation
in the USA and the UK, where young men serve in the army. Furthermore, legislation
in Australia, as well as court rulings in the USA, Australia, and Israel, demonstrate that
solidarity-based arguments and a relational approach to autonomy have been taken

into consideration in cases of premature death. This, in our view, shows that solidarity
is a relevant consideration in jurisdictions that allow posthumous sperm retrieval and
use. It also implies that a rights-based approach, which highlights the expressed wish
of the deceased, coupled with reliance on the intimacy between the deceased and his
spouse are not the sole considerations when the courts discuss requests for PAR sub-
mitted by either the spouse or the parents.
Therefore, although levels of solidarity vary across cultures, solidarity-based practi-
ces exist in all of them, since they are essential for maintaining the moral cohesion of
a community. With respect to policy regarding PAR, solidarity can be strengthened
through a positive obligation to publicly subsidize gamete cryopreservation when
there is a relatively high risk of premature death. A negative form of that obligation
can be fulfilled by respecting the wishes of bereaved parents to use their son’s sperm
and, in the case that there is no spouse left behind, to permit an arrangement with a
prospective single mother who will bear and raise the child.
Finally, the analysis has led us to conclude that this obligation to the parents
should be formally recognized by the law. This will unambiguously benefit the decea-
sed’s parents and will allow the courts to explicitly grant their requests without any
need for legal maneuvering or the introduction of unreflective emotional considera-
tions, which have been necessary in the case law examined earlier. Ultimately, and in
the spirit of Honneth, this will affirm and validate at the most fundamental level the
constitutive value of the individual as a member of the community.
Conflict of interest statement. None declared.

It Takes A Village To Raise A Child 2019

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It Takes A Village To Raise A Child 2019

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Medical Law Review, Vol. 28, No. 2, pp.

IT TAKES A VILLAGE TO RAISE A

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18 See Taylor (n 14).

speciﬁcity of their values and vocabularies of self-interpretation can simultaneously de-

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38 See Jennings and Dawson (n 20).

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In contrast to the A-G’s guidelines, solidarity-based arguments appear in court

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1. The ﬁrst group: requests by the spouse

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There is before us a bereaved mother of a dead soldier who was forced to go

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77 ibid, para 8.2.6.

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First, recall that our suggestion of solidarity as an alternative theoretical framework

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87 See Shachar (n 64) para 33.

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92 See Shachar (n 64) para 204.

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99 Appeal 6046/18 The Attorney General v Jane Doe (Nevo, 2019).

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