(This is a guest post by former CLB fellow Dov Greenbaum.)

As the earlier post on this blog from Amy Burns, “Supreme Court Rules No Survivor Benefits for Frozen Sperm Twins” set out, the Supreme Court ruled that the Social Security Administration did not need to pay survivor benefits to twins conceived after the death of the father.

The issue itself is not novel, and courts and regulators worldwide have struggled for the past decade with this issue; e.g., Woodward v. Commissioner of Social Security1302SJC 2002.  In contrast, the United Kingdom’s Human Fertilisation and Embryology Act 28(6)(b) rules that “the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not […] to be treated as the father of the child.”

In this case before the Supreme Court, Astrue v. Capato, Judge Ginsburg in her opinion for the unanimous court (Note, in this day and age, a unanimous court typically means that no justice has a particularly good understanding of the underlying issues) wrote:

It was nonetheless Congress’ prerogative to legislate for the generality of cases. It did so here by employing eligibility to inherit under state intestacy law as a workable substitute […] The technology that made the twins’ conception and birth possible, it is safe to say, was not contemplated by Congress [i.e., 1939 and 1965].

Interestingly, Jewish law has been considering this possibility for hundreds of years.

The Talmud in Chagiga (3rd to 5th Century) describes the possibility of a woman conceiving as the result of bathing in a bath previously used by a man (use your imagination).

Notwithstanding whether this is actually possible,  Rabbi Moshe Lim (Vilnius c.1605 – c.1658) the author of the Chelkas Mechokek a commentary on the Shulchan Aruch, a code of Jewish Law, questions whether the father can be credited with fulfilling his biblical obligation to have children (“Be fruitful and multiply”) under these circumstances.

Rabbi Shmuel Phoebus (1650-1700), writing in his seminal commentary the Beis Shmuel, another commentary on the code, suggests that the offspring of the unwitting father are his children for all purposes, provided that you can properly ascertain the father’s identity.

Rabbi David ha-Levi Segal (c. 1586 –1667), also known as the Turei Zahav (abbreviated Taz) after the title of his significant halakhic commentary on the Shulchan Arucha, questions these assertions.  The Taz rules that while we will assume that the sperm donor is the father as a stringency, e.g., to prevent a daughter of this father marrying the son from this woman, we cannot accept him as the father with regard to any legal leniencies, e.g., to absolve the father of his obligations to have children.

Rabbi Ezekeil Landau  (Prague 1713-1793) ruled that in a case where a woman was intimate with her husband before he died, but the actual fertilization of her egg occurred after his death, the child would be the father’s with regard to every area of Jewish law including inheritance.

Rabbi Shlomo Zalman Auerbach (d. 1995) further ruled that any genetically related children born even several years after the father’s death are as entitled to an inheritance as any of the other children in the family. Others, including Rabbi Shaul Yisraeli (d. 1995) disagree. (See, e.g., Paternity in [cases of] artificial insemination. Torah shebe-al peh, 33: 41-46, 1993. and  Opinions of the Eretz Hemda Institute. 1993,1994.)

Even the secular Israeli law, which pays for artificial insemination as part of it’s socialized medicine benefits, has been mulling over this issue too: The Israeli Knesset in 2003 passed a law for posthumous insemination providing that there is no proof that the deceased would have objected.

The Israeli law was eventually tested when the mother of an Israeli soldier (who was killed by sniper fire) persuaded doctors to retrieve a postmortem sperm sample, which was frozen. After five years of legal battles an Israeli civil court approved the parents’ application to use the sperm to create a child with a surrogate mother.  The secular court, agreeing with 1500 years of rabbinical discourse said the child would be the legal heir of the dead man.

Dov Greenbaum