Shabbat Parashat Beha'alotcha| 5765
From the works of Hagaon Harav Shaul Yisraeli zt”l - Paternity in Cases of Artificial Insemination – part II (from Chavot Binyamin siman 107)
[We discussed last time that there is a halachic doubt if a child who is born from artificial insemination, where the sperm of a husband is injected into the womb of his wife, is considered the child of the genetic father. We will now discuss the same circumstances, except that the sperm was implanted after the death of the “father.”]
It appears to me that even according to the Beit Shmuel, that the genetic father is the halachic father in the case of a child conceived from artificial insemination, the matter is different in the case where the father died before the implantation, as we shall explain.
The Noda B’yehuda (I, EH 69) asks why it is that for the days of havchana (the 90 days a woman has to wait between the end of one marriage and the beginning of the next) we do not have to wait an additional three days to allow for the maximum time for fertilization to take place. His specific context is the time that needs to go by before doing yibum, as we need to know that the widow is not pregnant from the deceased, which would make yibum unnecessary and forbidden. The Noda B’yehuda answers that if indeed the fertilization took three days, during which time the husband had died, then the child would not be the child of the deceased in regard to matters of yibum, and the wife would require yibum (as he derives from the p’sukim in this regard).
The Keren Ora (Yevamot 87b) asks on the Noda B’yehuda’s chidush, that it would come out that the child would inherit the “father” (for in regard to inheritance he should be a child), even though his uncle did yibum. This is against the p’sukim that he who does yibum inherits. He also asks what difference it makes if there was fertilization or not, since anyway, for 40 days the embryo is considered like “water.” So the Keren Ora concludes that even such a yet to be formed child is considered the father’s regarding yibum as long as it is eventually born. However, even the Keren Ora would only say as he did when the sperm is already in the mother’s body and the fertilization will take place without the need for any further action. However, in the case of artificial insemination that is yet to take place, it is considered that the deceased died without any offspring. Therefore, the child is not related to the father.
This conclusion must be correct or else we would have a situation that Chazal precluded from being a possibility. The gemara (Yevamot 87b) said that it is not possible that if at the time that a man died he had a child, but the child subsequently died, that the widow would require yibum. That is because such a possibility would cause the inhumane situation that the widow would have already remarried out of the family only to have to get divorced when the child died because of a retroactive need for yibum. So too here, if the child born of artificial insemination from frozen sperm after the death of the sperm’s source were considered the father’s son, then the widow who did yibum even years earlier would, upon the birth of her child from the deceased, retroactively turn out to be exempt from yibum and living in incest.
We have various sources that compare family status in regard to other halachot such as inheritance or who is a brother for yibum from the status regarding the existence of a son regarding yibum (see Bava Batra 119a; Tosafot, Bava Batra 115a; Yevavmot 22a-b). Therefore, it appears that in the case of artificial insemination from frozen sperm implanted after the death of the genetic father, the child would not inherit the “father” or be related to him otherwise from a halachic perspective.
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