Present-Day Posthumous Reproduction and Traditional Levirate Marriage: Two Types of Interactions

Journal of Law and the Biosciences, doi: 10.1093/jlb/lsy026, Forthcoming

27 Pages Posted: 4 Mar 2019

See all articles by Avishalom Westreich

Avishalom Westreich

College of Law and Business - Ramat Gan Law School

Date Written: February 9, 2019

Abstract

The paper studies the position of Jewish law on posthumous reproduction and its mutual interaction with the legal and bioethical discussion of this issue. It examines two types of interactions: a direct, legal-positive interaction and a meta-legal interaction, which may be defined as inspiration. The first relates to how Jewish law responds to the new technology, as reflected in the practical laws of levirate marriage, and how this new technology affects a wider spectrum of laws and conceptualizations from a religious-law perspective. The paper points to two interesting phenomena: (1) how a legal definition in the religious realm (fatherhood for the purpose of levirate marriage) affects legal definitions in the civil realm (eg, inheritance), and (2) the significance of value-based principles in framing Jewish law as a legal system whose ‘ways are ways of pleasantness’. The second (indirect interaction) deals with two rationales, individualistic and familial, behind the Israeli debate over posthumous sperm retrieval of fallen soldiers and their equivalents in the Jewish law discussion of the early ‘forefather’ of this technology: levirate marriage. The paper concludes that the complex interaction — both direct and indirect — provides us with a striking picture of the conjunction of modernity, law, and religion.

Keywords: Assisted Reproduction, Posthumous Reproduction, Jewish Law, Levirate Marriage, Fertilization, Posthumous Sperm Retrieval, Surrogacy

JEL Classification: I10, I18, I31

Suggested Citation

Westreich, Avishalom, Present-Day Posthumous Reproduction and Traditional Levirate Marriage: Two Types of Interactions (February 9, 2019). Journal of Law and the Biosciences, doi: 10.1093/jlb/lsy026, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3333762

Avishalom Westreich (Contact Author)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel
+972546550333 (Phone)

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