That Chanukah Baby – a Halachic Analysis

By Rabbi Yair Hoffman for 5tjt.com

It was a Chanukah baby, born in Israel.  But it was not just a regular baby.

Sharon Alon Twitto, a 46-year-old Israeli widow gave birth on Chanuka to a son who is the biological child of her husband even though he had died over four years ago.

Her husband, Sagi, had died of a heart attack in March of 2018.  On that day, she travelled to the courts in Haifa to obtain a court order that would allow her to obtain genetic material from her late husband to that they could fulfill their dream of having a child together.

The court gave permission;  an operation was performed; the genetic material was taken to a lad for preservation; and Sharon faced over a year of legal battles to be able to use the genetic material. She prevailed and in May of 2022 Sharon found out that she was expecting.  It was a high-risk pregnancy  which was monitored by Prof. Rinat Gabai Ben-Ziv, head of the Hillel Yaffe hospital’s maternity department. Due to her high blood pressure, Prof. Ben Ziv advanced the birth which took place on Chanukah via C-section. A healthy 3 kg son was born to Sharon.

Afterward, she said, “The fact that I gave birth on Chanukah is a sign of my personal victory in my battle to bring a child to the world. I am sure that Sagi is looking on from above with great pride.”

Our question, of course, involves the halachic aspects of this procedure known in the medical world as PSR.  This article is a discussion of the various opinions as well as some of the underlying issues involved.  Of course, it is hoped that such a situation will not arise, but the reality is that people do die and there is a concept in the Torah called “Yibum – the levirate marriage.”  And although such a procedure is not considered Yibum – the idea of the Mitzvah is still there and perhaps demonstrates a sensitivity toward establishing the deceased husband’s name

We will begin with some of the underlying issues.

• The first issue is the obligation incumbent upon all Jews to bury the deceased body as expeditiously as possible. The book of Genesis tells us that Man was created in the Divine image. It is a matter of utmost import in Jewish law never to insult the Creator by leaving His Handiwork – unburied in a state of indignity and disgrace. Maimonides describes immediate burial as a sacred obligation incumbent upon all of Israel, at all times and in all places.
• The second deals with disgracing the body. The Talmud (Bava Basra 154a) deals with the prohibition of disgracing or defacing the human body. This is a separate issue from the obligation of immediate burial mentioned above.
• The third issue deals with a prohibition in benefiting from a deceased human body. The Talmud in numerous places (Sanhedrin 47b, Avodah Zarah 29b, as examples) describes how it is reprehensible to derive benefit from a deceased human body. The only time an exception to this can be made is to directly save a human life. However, to derive any physical benefit from a body is something that should be avoided at all costs.
• The fourth issue deals with the notion of theft. The human body is sacred and belongs to no one but G-d. We cannot deface, cut open, and or take away. The issue is one of out and out theft as explained in the Talmud (Gittin 20a, Kiddushin 17a – see also Ran Nedarim 47a).
• Finally, the fifth issue deals with sensitivity. Jewish tradition tells us that the soul is in a state of anxiety and anguish until it is buried in the ground. The more it sees its body being explored, cut, etc. the more agitated the soul becomes.

As an interesting note – Poskim have been debating the notion of whether or not “brain death” is considered halachic death since the 1980’s.  The Poskim who hold that brain death is not a true halachic definition of deah are: Rav Shlomo Zalman Auerbach zt”l (Minchas Shlomo Volume II #83), Rav Eliashiv zt”l (cited in Nishmas Avrohom Vol. IV YD p. 148-150), Rav Eliezer Yehudah Waldenberg (Tzitz Eliezer IX #46), Dayan Yitzchak Weisz (Minchas Yitzchak 5:7-8), and Rav Shmuel Wosner (Sheivet HaLevi VII #235).  Those that hold it is a valid definition are Rav Moshe Feinstein zt”l (according to his son-in-law’s reading as opposed to that of Rav J. David Bleich) and Rav Dovid Feinstein zt”l.

In regard to this particular matter, the view that brain death is not a valid definition of death when there is still respiration going on appears to be the more lenient view.  How so?  Most PSR procedures are done while respiration is still occurring – even though brain death may have transpired.  The time frame under discussion is within 24 to 36 hours.

THE VARIOUS VIEWS

There is a letter from Rav Yitzchok Zilberstein shlita dated the 8^th of Adar 5769 (2009) where he states that he posed the question to Rav Elyashiv zt”l and he answered that there would be a problem of benefitting from the deceased (our issue #3) and even otherwise it is a davar megunah.  The possible implication is that Rav Elyashiv would not consider the other issues problematic.  Rav Shafran in Techumim Vol. XX 5760 p. 347 is also stringent.

In an article by Professor Avrohom Steinberg in K’nes HaDayanim 5772 p. 116, In Jewish Medical Ethics 4:1:9) Dr. Halpern cites the view of Rav Neuwirth zt”l and that of Rav Zalman Nechemia Goldberg zt”l (Assia 65 and 66 p. 47 also see article by Dr. Abraham Steinberg Kinus HaDayanim 5772 p. 116) who ruled that for the purpose of having a child the underlying prohibitions may be obviated provided that it can be ascertained that it was the will of the deceased to have children and that sufficient time has elapsed to ascertain the mother’s healthy state of mind.  Rav Goldberg zt”l added the caveat that other Poskim should be consulted and that one should not merely rely on his opinion.

It should also be noted that there is no actual Mitzvah being performed here of neither Yibum nor Pru urvu.  However, in this author’s view, it may be a fulfillment of v’ahavta larayacha kamocha to the surviving spouse.  We hope to reach the time of bila maves lanetzach (Yishahayu 28:8) – when death will be swallowed forever, so that these questions do not have to come up.

The author can be reached at [email protected]