The mourning after: Posthumous sperm retrieval and the new laws of mourning

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Abstract

The Mourning After Posthumous Sperm Retrieval and the New Laws of Mourning Shai J. Lavi In November 2012, Israel was in the midst of a military operation in the Gaza Strip.1 After a prolonged week of air raids, soldiers who had been recruited for military reserve duty under emergency orders were preparing themselves for a land invasion. Conscious of the dangers awaiting them, over thirty field soldiers asked to sign a “biological will.” The document, drafted by New Family, an NGO promoting individuals’ right to establish nonconventional families in Israel, is a legally binding testament, ordering the posthumous retrieval of the signee’s sperm and allowing its future use in the case of death. Soldiers who fall in combat would be able to bring children into the world posthumously either upon the request of a spouse or, if single, with a yet-unknown woman who would volunteer to carry and raise their biological offspring. Postmortem sperm retrieval (PMSR) is not only a way for life to continue after death but also opens a new way to practice grief, bereavement, and mourning. The procedure is neither new nor specific to Israel or to soldiers. The technology for sperm harvesting has been available since the late 1970s, and the first known case of birth from PMSR in the United States dates to 1999.2 Gaby Vernoff, in her twenties, lost her husband in a car accident. His sperm was harvested thirty hours after his death at the wife’s request. The couple was childless and Gaby, determined to bring a child into the world, turned to a reproduction clinic at a nearby hospital. Dr. Cappy Rothman, director of the Center for Reproductive Medicine at Century City Hospital in Los Angeles, agreed to perform the procedure. Justifying 37 The Mourning After his decision, he remarked, “I just did it because the family was in so much stress and so much grief.”3 Though no longer a novelty, PMSR remains highly controversial. Some countries have banned the procedure altogether, while others have introduced more lenient regulation.4 In an obvious sense, the variety of regulatory regimes is an outcome of a clash of value systems and weltanschauung, which bioethicists and moral philosophers have sought to spell out.5 But the controversy has a deeper and more important significance. The source and origin of the normative controversy lies in the anthropological ambivalence of the practice itself. PMSR both reaffirms and challenges modern society’s approach to the cycle of life and death. It reflects deeply held convictions and equally deep anxieties that are widely shared. For many observers, PMSR is a violation of the laws of nature, but at the same time it is the fulfillment of very natural desires. It concerns the highly extraordinary wish of close kin to posthumously harvest the gametes of the young and childless dead, but it can only be understood within the very ordinary context of reproductive technologies, which have already transformed modern kinship relationships in a variety of much less controversial ways. Furthermore, the ambivalence toward PMSR stems from its liminal position between the unpredictable emergence of the new and the endurance of the old. Modern society is not the first to face the problem of the young and childless dead, and the novel solution that advance technologies offer to this problem simultaneously preserves yet utterly transforms traditional practices. Most importantly, PMSR newly articulates the relationship between the living and the dead, and, in this sense, constitutes a distinctly modern relationship toward mourning. In PMSR, mourning is at stake not only and not simply because the spouse and parents of the dead must make the decision to harvest the sperm at the peak of their grief, within twenty-four to seventy-two hours after death.6 PMSR raises anxieties because it threatens to prematurely alleviate and perhaps even substitute grief and mourning. Indeed, an oft-repeated justification for attempts to achieve a posthumous conception has been the amelioration of grief. Cappy Rothman, the surgeon who performed the first posthumous sperm extraction, suggested that collecting sperm in circumstances where there has been the sudden, usually violent, death of a young man, “gives people hope and lessens the pain of suddenly losing a loved one.”7 As long as PMSR is understood merely as a reproductive technology, it is easy to see why it would be interpreted as a death-denying gesture that Shai J. Lavi 38 undermines the laws of nature. From this perspective, PMSR seeks.

Original languageEnglish
Title of host publicationLaw and Mourning
PublisherUniversity of Massachusetts Press
Pages36-58
Number of pages23
ISBN (Electronic)9781613765302
ISBN (Print)9781625342829
StatePublished - 1 Jan 2017

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