One Person’s Death is Another’s Life: Posthumous Birth, Law, Technology and Values

Medical technology has given us the potential of disconnecting sexual intercourse from the creation of new life. It has also disconnected the creation of life from life itself: babies can be created from the pre-frozen gametes of dead people or from gametes extracted from dead people’s bodies after their death.

More and more babies are born today because of someone’s death, and from his or her gamete. Are the dead to be considered the babies’ parents? What does it mean for a baby – a person – to have such a parent, who is a parent by title, but not a functioning parent? How important is genetics in our legal and cultural conception of parenthood?

Tracing the development of this phenomenon in Israeli legal and cultural discourses, this research examines the challenges that posthumous birth pose to such legal and cultural concepts as parenthood, childhood, and the child’s best interests. I argue that in posthumous birth the baby’s legal parents should be those who will function as the baby’s parents, and not the genetic dead gamete donor, who should be considered as a mere donor.

This research is a chapter in a larger project, which is comprised of articles on the regulation of fertility services in Israel, LGBT parenthood in Israel and Surrogacy of Israelis in India.