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First Encounter of Israeli Law with Artificial Insemination

Published online by Cambridge University Press:  12 February 2016

Pinhas Shifman
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Israel Law Review , Volume 16 , Issue 2 , April 1981 , pp. 250 - 259
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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References

1 For details of the literature, see Foster, Ploscowe & Freed, , Family Law, Cases and Materials (2nd ed., 1972), 974–8.Google Scholar Of recent articles, the following are specially of note: Smith, G.P., “A Close Encounter of the First Kind: Artificial Insemination and an Enlightened Judiciary” (1978) 17 Journal of Family Law 41 Google ScholarPubMed; Shaan, J. M., “Legal Aspects of Artificial Insemination” (1980) 18 Journal of Family Law 331 Google Scholar; Annas, G. J., “Fathers Anonymous: Beyond the Best Interests of the Sperm Donor” (1980) 14 Family Law Quarterly 1.Google ScholarPubMed

2 See, inter alia, Strand v. Strand, 190 Misc. 786, 78 N.N.S. 2d 290 (1948); Doornbos v. Doornbos, 12 B1. App. 2d 443, 139 N.E. 2d 844 (1956); Gursky v. Gursky 39 Misc. 2d 1083, 242 N.Y.S. 2d 406 (Sup. Ct. 1963); People v. Sorenson, 60 Cal. Rptr. 495, 437 p. 2d 495 (1968); In Re Adoption of Anonymous 74 Misc. 2d 99, 345 N.Y.S. 2d 430 (Surr. Ct. 1973); CM. v. C.C. 152 N.J. Super. 160, 377 A. 2d 821 (1977).

3 At least 15 States in the U.S.A. have passed laws dealing with artificial insemination. Generally, these laws provide that a husband who consents to his wife under going artificial insemination will be considered the father of the child who is so born. On this matter, see up-to-date information in Annas, supra n. 1, at 2, n. 2.

4 See in particular: Law of Ethics of A.I.D. and Embryo Transfer, Ciba Foundation Symposium 17 (Amsterdam, 1973); Heiss, H., Die Künlische Insemination der Frau (München, 1972)Google Scholar, and see the sources in the following note.

5 In Great Britain, proposals to regulate the subject by way of legislation were rejected. See: Pollard, R. D. W., “Report of the Department Committee on Human Artificial Insemination” (1961) 24 M.L.R. 158 CrossRefGoogle Scholar; Mayo, N.M., “Legitimacy for the A.I.D. Child” (1976) 6 Family Law 19 Google Scholar; and recently—The Law Commission, Working Paper No. 74, Family Law: Illegitimacy (1979); Eckelaar, J. M., “Reforming the English Law Concerning the Illegitimate Persons” (1980) 14 Family Law Quarterly 41, 56–8.Google Scholar In France, too, all proposals dealing with recognition of the status of children born from artificial insemination were rejected. See: Travaux de la Commission de Réforme du Code Civil (années 1950–1981), 164–8; Gebier, , Le droit français de la filiation et la vérité (Paris, 1970) 151–4Google Scholar; Reivillard, M., “Legal Aspects of Artificial Insemination and Embryo Transfer in French Domestic Law” (1974) 23 International and Comparative Law Quarterly 383 CrossRefGoogle Scholar; Noel-Jean Mazen, M., “L'insémination artificielle, une réalité ignorée par le législateur” (1978) 22 Semaine Juridique 2989.Google Scholar In a number of Eastern European States, however, the law states explicitly that a father who consents bears the status of the father of the child. See: Tap, T., “The Reform of Family Law in the Socialist State” in Chloros, A. G. (ed.), The Reform of Family Law in Europe (1978) 227, 252–3.Google Scholar Dutch law takes a unique position: the woman's husband cannot deny paternity of the child born to his wife (from another man) if he gave his consent to the act which was likely to bring about the birth of that child. This includes not only consent to artificial insemination from an anonymous donor, but also consent on the part of the husband to sexual intercourse with another man. See: de Ruiter, “The Reform of Family Law in the Netherlands”, in A. G. Chloros, op. cit., 33.

6 However, a number of articles have been published on the position adopted by Jewish Law on this subject. See in particular the articles appearing in (1958) 1 Noam; Steinberg, A., “Artificial Insemination in the Light of the Halakha” Sefer Assiah (Jerusalem, 1976) 128–41Google Scholar, and Indig, , “The Problem of Support of a Child Born of Artificial Insemination” (1970) 2 Dine Israel 83.Google Scholar For the position of the civil law, see Kaplan, Edna “Artificial Insemination” (1972) 2 Iyunei Mishpat 110 Google Scholar, and my article, “Determination of Paternity of a Child Born of Artificial Insemination” (1980) 10 Mishpatim 63.

7 (1979) (II) 34 P.D. 779.

8 Family Law Amendment (Maintenance) Law, 1959, sec. 3(a) (13 L.S.I. 73).

9 Sec. 15(c) of the above Law, and see: Parski v. Matuillah (1955) (I) 19 P.D. 513.

10 Supra n. 7, at 784.

11 Gursky v. Gursky, supra n. 2.

12 People v. Sorenson, In Re Adoption of Anonymous, supra n. 2.

13 Indig, supra n. 6.

14 Kreuzer, , “Artificial Insemination” (1958) 1 Noam 145 Google Scholar; Indig, supra n. 6.

15 Glosses of the Semak in Bayit Hadash on Yoreh Deah, 195; Responsa Igrot Moshe: Even Ha'Ezer, 71; Responsa Mishpetei Uziel: Even Ha'Ezer, 19; Responsa Helkat Yaakov, 24.

16 See, e.g. Responsa Tzitz Eliezer, part 8, n. 51. There are some, however, who take a lenient view when the sperm is donated by a gentile, for in such a case there is no danger of bastardy: Responsa Igrot Moshe, supra n. 15; Auerbach, S.Z., “Artificial Insemination” (1958) 1 Noam 111.Google Scholar

17 See Jakobowitz, I., Medicine and Judaism (Jerusalem, 1966) 230 Google Scholar and A. Steinberg, supra n. 6.

18 See Adoption of Children Law, 1960, secs. 13 and 27(b) (14 L.S.I. 93) and the Adoption Records Regulations, 1964.

19 This, for example, is the popular conception in the U.S.A. with respect to the right to privacy. See Griswold v. Connecticut 381 U.S. 479 (1965); Roe v. Wade 410 U.S. 113 (1973). And see the decision in Eisenstadt v. Baird 405 U.S. 438 (1972), in which the following was stated: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

20 Gursky v. Gursky, supra n. 2.

21 People v. Sorenson; In Re Adoption of Anonymous, supra n. 2.

22 In Re Adoption of Anonymous, supra n. 2.

23 The draft law submitted by M. K. Shahal on this matter was struck off the Agenda.

24 The full text is appended to this article in an unofficial English translation.

25 Sec. 3 of the above Law states : “A Minister shall not exercise his powers under this Law unless he has reasonable grounds for believing that it is necessary so to do for the maintenance of an essential activity or the prevention of profiteering and speculation”. (12 L.S.I. 24). And see the definition of “essential activity” in the Law.

26 Mishpatim, supra n. 6, at 85–6.

27 Supra n. 7, at 784, para. 7 of the decision.