Being fruitful and multiplying: legal, philosophical, religious, and medical perspectives on assisted reproductive technologies in Israel and internationally.

• Author: Rosenblum, Irit

1. INTRODUCTION

   Reproduction in the twenty-first century is a perpetually evolving phenomena in which fertility, declining due to parents' age, health, and environment, meets the changing structure, needs, and desires of the modern family, and creates a complex global web of conception and birth which is more deliberate and varied than ever before in human history. Assisted reproductive technologies (ART) are advancing at an unprecedented rate, opening up infinite reproductive possibilities and biological and social parenting constellations. As ART becomes more sophisticated and the global family evolves, ART will continue to present new possibilities that were previously inconceivable and legally impossible. (1)

   In this context, freedom and rights for the family have dissipated to new spaces for which legal and constitutional infrastructure have not yet been created. This article will explore the notable connections and gaps in the legal and constitutional infrastructure of family rights, and their significance in the legal, philosophical, religious, and medical practice of ART.

2. THE PHILOSOPHICAL JUSTIFICATION FOR FAMILY HUMAN RIGHTS

   The right to family through couple hood or parenthood belongs in the category of human rights. Human rights are defined as the rights every individual are entitled to as human beings. Family rights belong to the world of natural rights. Natural rights are those rights that ensure freedom of the individual, and protect individuals from government tyranny. I argue that the individual's right to form a family is inalienable.

   The human right to family is the essence and existential expression of an individual's desire for survival and continuity. Hence, the right to form a family is more than just a right; it is a liberty. A liberty, as distinct from a right, is the absolute freedom an individual should be able to exercise unhindered, without obtaining approval from an external authority. The distinction between "liberty," which is the expression of absolute freedom, and a "right," which is a human invention, has great legal, moral, and ethical implications for family rights.

   1. The Right to Procreate

      The right to procreate, which any person should have, is the right to bring children into the world regardless of their medical or social ability to conceive, carry a pregnancy, or deliver a baby. Procreation is a fundamental human right determined, among others, by a United States court in Skinner v. Oklahoma. (2)

      Before the advent of advanced ART, gender and biology were absolute determinants and the distinction between men and women was clear and unequivocal. In the past, when fertilization occurred within a woman's body and the pregnancy was carried by a woman, in her own uterus, who was both the genetic and legal mother, the differences between men and women, and the role each had in conception, were apparent and obvious. Today, with the proliferation of in vitro fertilization (IVF) and surrogacy, there is no longer a guarantee that childbirth will necessarily take place in the womb of the biological mother. Thus, the legislator needs to redefine the right to procreate and better delineate the reproductive rights that stem from it.

      One of the most fascinating phenomena in the field of reproductive technologies, and a true sign of our times, is the emergence of different categories of infertility. This article will distinguish between medical infertility (primarily in heterosexual couples), social infertility (primarily in single men and women and same-sex couples), and "elective" or "lifestyle" infertility (primarily referring to women's control over childbearing).

      The de facto expansion of the circle of parenting is a reality. Childbearing is no longer dependent on sexual intercourse between a male and female, the couple relationship, or, as discussed later in this article, the existence of life itself.

   2. The Legal Perspective on Fertility and Infertility in Israel

      In 2001, a verdict by the High Court of Israel defined the limits for intervention by the State into the autonomy of the family unit, stating, "[c]onception, pregnancy, and childbirth are intimate events that are entirely within the realm of the right to privacy. The State does not intervene in this field, unless there are reasons of great importance, stemming from the need to protect the individual's right or a major public interest." (3) An individual is the start of every new family, and a family can come into being only if the individual realizes his or her reproductive potential. Therefore, the foundation of family originates in the individual's reproductive rights.

3. THE RELIGIOUS PERSPECTIVE ON FERTILITY AND INFERTILITY IN ISRAEL

   1. Israel: Taking the Biblical Commandment, "Be Fruitful and Multiply" Seriously

   Few deny that having biological children is a compelling human need. While the need for biological continuity appears to be universal, procreation has special meaning in Israel. Having children is deeply rooted in Jewish culture and a strong Middle Eastern value. Childbearing is a religious imperative within the monotheistic faiths and a core of communal life. Since family law in Israel is based on Jewish religious law, parenthood is seen as both a commandment and a right. People, both religious and secular, tend to take the Biblical commandment, "[b]e fruitful and multiply" seriously. Israel is a child oriented society, and people of all religions respect parenting.

   Even today, ancient perceptions that infertility is a curse and fertility is a blessing saturate Israeli culture. Although religious families tend to be larger, secular Jewish and Muslim populations have similar attitudes toward childbearing. Singlehood and childlessness are often seriously stigmatized, particularly within religious communities. Infertility within marriage has been known to create pressure that eventually causes the couple to separate. Childbearing is so important within Judaism that Jewish marriage has an "exit clause," requiring childless couples to divorce after ten years so that husband and wife could remarry and bear children with new spouses. This is still practiced today among religiously observant couples, though the use of ART significantly reduces infertility within marriage. Therefore, divorce of a couple that would otherwise remain married due to infertility is a relatively rare occurrence.

4. THE PHILOSOPHICAL JUSTIFICATION FOR POSTHUMOUS REPRODUCTION

   1. The Biological Will[TM]

      The philosophical justification for posthumous reproduction stems from a belief that having biological children is a human right. The right to reproductive choice derives from individual free will and consciousness, which transcends religious and governmental authority. Denying the right to procreation is a sentence, perhaps the closest in nature, to involuntary sterilization or the death penalty.

      These beliefs inspired me to establish the world's first, and only, Biological Will Bank. As the only entity drafting and storing Biological Wills, the organization I founded and lead, New Family, helps the terminally ill, bereaved families, soldiers, and both widows and widowers create their biological legacy. (4)

   2. The Legal Perspective on Posthumous Reproduction

      A central derivative of the human right to reproduce is the right to know your origins. I argue that anonymous gamete donations rob children of their genetic record, complete family tree, and extended family. Children's hunger to find their roots is so compelling that adopted children, and those born of anonymous gamete donations, may spend their entire lives unraveling the mystery of their origins.

      The Biological Will is legal testament that documents the intended use or disposal of any individual's sperm, ova, or embryos in case of death, incapacitation, or infertility. The Biological Will is an innovative form of legal insurance for genetic continuity. I proposed the Biological Will as a solution to the questions of gamete and embryo ownership, donor consent, legal parentage, and inheritance rights of posthumously-conceived children.

      Biological Wills offer singles and same-sex couples an alternative to anonymous sperm or ova donations, by receiving sperm or ova from a known donor to form a family with the donor's kin and give their child a complete genetic record. All stakeholders benefit, including, the individual that fathers or mothers the child, the designated parent who has a child that knows his or her other parent's identity, and the donor's family who continue their bloodline. The child gets a genetic record, a complete family tree, and a known extended family. The Biological Will is the only legal option for known sperm and egg donations in Israel.

      In an age where a child can have multiple biological, legal, and social parents, the legal system must redefine parenthood to protect the rights of all parties. Written instructions by the deceased in a Biological Will which define the circumstances in which the donor consents to the use of their gametes or embryos to conceive a child are the most accurate indication of donor prerogative. Biological Wills eliminate speculation and prevents unnecessary litigation. Six hundred Biological Wills have been composed so far, and a dozen are currently being implemented.

      Since my proposal to establish a sperm bank for Israel Defense Force soldiers in 2001, through the birth of the world's first and only child to be born of posthumous maternity by Biological Will in 2011, (5) the Biological Will has broken the boundaries of nature and made this new paradigm in ART a legal reality. (6) In 2013, two new babies came into the world through the Biological Will, and within months, the Kevain Cohen case that shook the world in 2002 will reach fruition when his child is expected to be born twelve years after his death.

   3. Medical Practice of Posthumous Reproduction

      Since the dawn of humanity, children have been born after the death...