Question:
I am a student and have heard that I can get paid for donating sperm to a sperm bank. Is there any legal risk of being landed with a paternity suit and a maintenance claim from one of the women who may be impregnated with my sperm ?
Answer:
In principle under Israeli law anonymous sperm donors are free of any legal responsibility towards any child that may be born from the genetic material they donate. Unless this were so men would not be willing to donate sperm in Israel for fear of having paternity and maintenance suits filed at them.
However, it is possible from a strict legal point of view to sue a sperm bank donor , even if he is an “anonymous donor.” If a record is made of the donors for medical reasons (e.g. because of the future risk of genetic problems of any child that may be born with the aid of the donated sperm), then the child and/or his mother could file a legal action for the donor’s name to be revealed. Thus ,only if the sperm donor has a statutory defence or other legal defence
( e.g. an agreement authorized by court) would the sperm donor be protected in the face of such a claim. This issue has not yet been tested fully in Israeli courts.
Incidentally, in certain American states the concept of a “known” sperm donor exists and is popular among the gay and lesbian community. The sperm donor’s identity is revealed . The idea is for him to have an “uncle-like” relationship with the child without any financial responsibility.
Cancer Patient – Advance Agreement Re Paternity
Question:
Can a male cancer patient who is about to undergo medical treatment take legal steps beforehand to ensure that his wife can have a baby using his sperm if he dies ?
Answer:
Yes ! Before he undergoes medical treatment he can enter into a legal agreement with his wife about the use of his sperm extracted from his body, in certain situations, including his death. Such an agreement should be authorized by court. Express agreement to the use of sperm for artificial fertilization of one's spouse after death can simplify matters for the wife, and can provide useful backing for her, should her late husband's family object. In one case, where the cancer patient's family were actually also in favour of the use of his sperm after his death, the agreement even included them. In this case it was a 3-way agreement, between the cancer patient and his family on one side, and his wife on the other.
In the absence of an express agreement , the wife will have to apply for court permission to use her deceased husband's sperm to have a baby, after he passes away. The state's representative will be asked to react. Usually, the assumption is that a person wishes to have children, unless proved otherwise.
Court's Liberal Approach To Use of Frozen Sperm After Death
Question:
In general are courts for or against the use of frozen sperm taken from a man's body - after his death to create a child ?
Answer:
This area of law is new and developing. In general, however, courts have shown a generous or open attitude to applications from spouses/stable partners to use frozen sperm taken from their loved ones bodies after death . Each case is decided on its merits but in general the courts have been supportive/encouraging in their approach, rather than discouraging.
When Courts Permit Removal of Sperm From Deceased
Question:
In what circumstances is a girlfriend or wife of a man likely to get emergency permission from a court to remove sperm from his body after his death ?
Answer:
Where death was sudden and/or unexpected – such as a road traffic accident, a terrorist attack, or heart attack.
When Courts Refuse to Remove Deceased's Sperm
Question:
In what circumstances is a court likely to refuse a girlfriend or wife of a man permission from a court to remove sperm from his body after his death ?
Answer:
Where their relationship had come to a clear breakdown before he died – and there was not a passing crisis. If the couple had been in the middle of legal proceedings such as divorce or property/maintenance disputes this would decrease the chances of gaining court permission. Furthermore , if the deceased had showed signs , explicit or implicit, of opposing their relationship or starting a family, or to the family unit itself, this would also decease the chances of gaining permission.
Removing Sperm From Deceased - and Creating Child
Question:
If a court gives permission for sperm to be removed from a deceased's body shortly after his death, and frozen, does this indicate that consent will be obtained later on for a child to be created using it ?
Answer:
No ! The two applications to court – one for the removal of sperm and one for its use – are separate and even if the first is granted, there is no guarantee that the second will be,too . Court permission for removal of the sperm is given very quickly – as it must be done very soon after the deceased's death . There is no time, and no need, for in-depth consideration of its use for fertilization later on and the creation of child. However, later on ,when someone – perhaps a girlfriend, or a wife etc – might apply for its use then the court will take its time to consider the reasons , and circumstances. It will examine their relationship with the deceased, his wishes, and those of the applicant, and decide each case on its merits.
No Guaranteed Permission To Use Late Husband’s Frozen Sperm
Case :
Will a widow who is given urgent permission from court for sperm to be removed from the body of her husband shortly after his death be sure to be allowed to use it to bear his child later ?
Answer:
No - there is no automatic right for a widow to use frozen sperm taken from her husband’s body shortly after his death. The widow must apply to the family court for permission and the state is the respondent in the proceedings, but there is a built-in tendency to respect her wishes based on the assumption of the deceased’s wishes for proliferation, too. A few years ago Tel Aviv District Court held that there is a "basic assumption that in general a person is interested in perpetuation ", even after his death, when his partner is interested in this, unless he expresses objection beforehand.
Referring to this judgment, In September 2003 Kfar Saba Family Court gave permission for a widow to be impregnated with her late husband's frozen sperm ( taken during his lifetime as part of her fertility treatment also from his shortly after his death). The widow was childless and the deceased had grown-up children from his first marriage
Widow’s Means Irrelevant To Court's Decision on Using Frozen Sperm
Question:
Does a widow whose late husband’s sperm was frozen shortly after his death, and who wishes to bear his child, have to prove to a court that she has enough money to support a minor before it will grant her permission to use the sample ?
Answer:
No ! Kfar Saba Court held in September 2003: “ The matter of the financial capability of potential parents is not subject to inspection by the court. When a couple are about to bring a child into the world, they do not need the court’s permission, and the matter is not subject to a test of their financial capability before they decide whether to bring a child into the world, so that a woman who wishes to be impregnated with the sperm from her late husband is not required to show financial means as a precondition for the impregnation.”
Social Worker's Recommendation About Use of Frozen Sperm
Question:
What tools does the court use in deciding whether to give permission for a widow or girlfriend of the deceased to use his frozen sperm to create a child ?
Answer:
Usually it will appoint a professional to report on the matter .It will also ask the state's representative to give its opinion. If these are favourable, the court is likely to grant permission for the use of the frozen sperm to create a child.
In July 2005 Haifa Family Court granted permission for a widow to use frozen sperm removed from her late husband shortly after his death. She had applied to use the sperm nearly two years after it had been removed and stored. In her application the widow stated that she had no intention of turning any child born using the sperm into a memorial for her late husband, but wanted to actualize the mutual love that they had felt for one another, and their common wish to have a child together, which they had not done so when he died.
The social worker's report stated that the widow's decision to apply for permission to use the sperm to have a child had been made of her own free will. It described the widow as being well-balanced, mature and responsible, emotionally strong and able to give any child born the support required, and to get the help of those around her to this end.
Supporting the widow's application, the state's representative said that permission to use the sperm should only be granted if this was the true wish of the surviving parent and the deceased – and the welfare of the child to be born.
Granting permission, the court held that it was convinced that having a child was the wish of both the widow and her late husband and that the minor's welfare would not be harmed by the fact that he/she was born a few years after his/her father's death.
Short Marriage – Permission to Use Late Husband's Sperm
Question:
Can a widow whose husband dies suddenly after a short marriage still get permission to bear his child using sperm taken from his body ?
Answer:
Yes, if in the circumstances the family court holds that raising a family with the widowed wife was consistent with his wishes or reasonable perception of them. In September 2006 Tel Aviv Family Court gave permission for a widow who had been married for only a month when her husband died to use his frozen sperm to bear their child. The couple had been engaged prior to this. The husband was 26 and had died suddenly of an unknown cause.
Deceased Parents’ Objections To Use Of Frozen Sperm
Question:
Will a court hearing a request by a deceased’s widow to use his frozen sperm to bear his child be likely to accept objections from his parents because they could be liable for maintenance of the potential grandchild ?
Answer:
No ! In an opening motion in the 1990’s dealing with an application to use the frozen sperm of a deceased man to create a child,Tel Aviv District Court rejected the potential grandparent's objections and stated quite clearly that
" the financial implications likely to arise from the birth of a newborn cannot bring the court to make an order preventing his birth.”
Inheritance of Child Born From Deceased's Frozen Sperm
Question:
If a widow gets permission to use the frozen sperm of her late husband to bear his child, will that minor have normal inheritance rights ?
Answer:
The issue is problematic . Where the deceased leaves no will under the 1965 Inheritance Act , a child born within 300 days of his death is regarded as having inheritance rights as if he/she were alive when the deceased passed away . However, because of the time delay involved in the deceased’s widow getting permission to use the frozen sperm the child and being impregnated with it , it is feasible that although the deceased may be registered as the child’s father at the Ministry of the Interior, he/she may well be born more than 300 days after the death , and will thus have no inheritance rights, unless it is proved that conception took place later . This point was made by Kfar Saba Family Court in September 2003.
Can Known Sperm Donor Change His Mind ?
Question:
A woman I know from my childhood is trying to persuade me to be a known sperm donor so that she can get fertility treatment and become a mother. I am not sure whether to go ahead. If I start the process can I back out mid-way ?
Answer:
In theory the potential known sperm donor will have to sign an agreement/affidavit concerning his willingness to participate in the creation of a baby for the woman in question using his sperm . It is usual to agree on a mechanism enabling the man to change his mind and the form he must sign may state that this has been done, but that he must be aware that after a certain stage this may not be possible. This is most probably when it would cause danger to the health of the woman or the foetus .
Fertility Treatment – Ownership & Fate of Genetic Material
Case:
What happens to the genetic material obtained by fertilizing a woman’s egg with sperm from a known donor if one of them dies ?
Answer:
This problematic issue is referred to in the ‘consent’ form or agreement signed by the parties before a woman undergoes fertility treatment with a known donor. The relevant clause usually just by-passes the issue by stating that any agreement reached by the parties on this depends on the law.
Payment to Known Sperm Donor Prohibited in Fertility Treatment
Case:
I am a student struggling to survive financially and to pay for my own studies. One of my classmates has made an interesting proposition. She is in her thirties and anxious to have a child but has no boyfriend, and does not want a couple relationship. She offered me a substantial sum of money if I agree to be a “known sperm donor” and co-operate with fertility treatment she wants to start at hospital. This would end my financial worries. She says I have to sign papers but it is only a formality. Can I be paid for this ?
Answer:
No. Usually the consent form/agreement that has to be signed before fertility treatment involving a single known sperm donor and single woman can start contains a clause in which they declare that they signed of their own free will without any reward, financial or otherwise, on either side.
Not only can you not gain financially from this, but there is no guarantee that you will not be liable for maintenance to support any child born using your sperm as you will be the biological father.
Hospital Agreement With Known Sperm Donor - No Guarantees
Question:
I am single and have been asked by a single childhood friend of mine n her late 30’s to donate sperm so that she can undergo treatment at a special hospital unit and have a baby. I said I was willing to do this providing that I would have no responsibilities as a parent and would not have to pay maintenance. She has shown me a consent form I am supposed to fill in . I must declare that I am aware that my obligations as a biological parent do not depend on whether the agreement is valid or not. I am confused. Could I be liable for maintenance for any child born using my sperm if I sign ?
Answer:
Yes ! Basically the known donor who is asked to sign is agreeing to the fact that there is no guarantee that he will not landed with the responsibilities – financial and otherwise – of a biological parent under Israeli law. In other words, he could be faced with a maintenance plea for any child born using his sperm. Caselaw is very clear on this ; a biological father cannot dodge the responsibility of paying maintenance for his child and any agreement by the parents whereby child maintenance is waived does not bind the minor .
Single Woman & Sperm From Known Donor - Hospital Demands Declaration
Case:
I am single. An old friend of mine is willing to donate sperm so that I can have a baby. He is married. Is this possible ?
Answer:
Most probably not, if both parties act in good faith. Where a single woman wishes to undergo fertility treatment at a fertility unit in Israel using the sperm of a known donor both she and the known donor will probably have to sign an agreement which contains a declaration that they are not married to anyone else. These agreements are based on directives from the Ministry of Health , but the relevant legislation itself, The Public Health (Outside Body Fertilization) Regulations of 1987 do not make any direct reference to a known donor who is married at all. They define “donor” as a “man whose sperm is designed, with his consent, to fertilize an egg of a woman who is not his wife and whose identity is not known to him”. In other words there is only reference to an unknown donor.
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