TWO INSEMINATION QUESTIONS

1) A man, told that he is dying of cancer, leaves his sperm in the custody of his doctor. He dies. His wife demands the sperm (to be used for insemination). Has she a right to it?

2) A husband’s sperm, unmixed (or in some cases mixed with the wife’s seed) is inserted into the womb of another woman who is engaged for the purpose of maturing the child (i.e., a surrogate mother). When the child is born, whose child is it? (Asked by S.S., Detroit, Michigan.)

ANSWER:

With regard to the entire modern discussion as to whose child it is that is born of the surrogate mother, or the first question. does the widow have the right to demand possession of her husband’s sperm, there is one basic fact involved, and that is the right of a wife to sexual relationship from her husband. This right is based primarily upon Scripture, Exodus 21:10, which speaks of a wife’s right to food, clothing and sexual relationship. This right is more fully described then in the Mishnah (Ketubot 5) and in the Talmud (Ketubot 61b) and as law in the Shulhan Arukh Even Haezer 76:1. It is reasonable to conclude that if the sexual relation in marriage is the wife’s right, then she might well claim ownership of his sperm. She therefore has the right, at least more than anyone else, to demand possession of the deposited sperm, perhaps for artificial insemination or however the physician will decide to use it.

As for the surrogate mother, the wife certainly has some claim on the possession of the child, since it is her husband’s sperm which was put into the body of the surrogate mother, and all the more right if it is the mixture of the husband’s sperm and her seed that was put into the body of the surrogate mother. And, thirdly, if the surrogate mother agreed at the outset that she was merely the instrument of maturing the child’s body.

So, all in all, based upon the wife’s right to her sexual intercourse, we may conclude that she has the right to her husband’s sperm when it is used in this way.