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  • Author or Editor: Avishalom Westreich x
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Abstract

The theme of this composition is the right to procreate in the Israeli context. Our discussion of this right includes the implementation of the right to procreate, restrictions on the right (due to societal, legal, or religious concerns), and the effect of the changing conception of the right to procreate (both substantively and in practice) on core family concepts.

In the current Israeli legal and cultural sphere, two issues are at the forefront of the discussion over the right to procreate: first, the regulations governing and conflicts surrounding surrogacy and egg donation, and second, the debate over posthumous fertilization. The first, surrogacy and egg donation, is the typological modern expansion of, or alternative to, traditional procreation. It opens the gates of procreation to individuals and couples for whom natural procreation was not possible in the past (due to medical reasons, sexual orientation, etc.), while, at the same time, it challenges the very understanding of fundamental family practices and concepts, especially as regards parenthood, motherhood, and fatherhood. Part 1 of this composition accordingly discusses the right to procreate, focusing on the regulation and practice of surrogacy and egg donation in Israel.

The second issue, posthumous procreation, is an excellent illustration of the expansion of the right to procreate, and a typological example of how this expansion moderates, or even blurs, existential dichotomies, such as life and death. Part 2 therefore discusses posthumous fertilization, with a focus on the debate over posthumous sperm retrieval of fallen soldiers. This debate clarifies the conceptual distinction between an individual right to procreate and a communal, or familial, right to continuation, along with the fascinating tension between the legal system and the social and political atmospheres.

On the basis of the first two parts, Part 3 focuses on the dramatic conceptual changes of parenthood definitions resulting from the evolution of assisted reproductive technologies (art) and from the broadening of the right to procreate (both are, of course, related, and influence each other). This part deals with the move from formal to functional parenthood, both in Israeli civil law and in Jewish law. The perspective of Jewish law is a significant player at this field, and it is discussed in various occasion throughout this composition. Part 4 accordingly completes the discussion by providing some description and analysis of the basic Jewish law approaches to art.

To sum up, the main argument in this composition is that assisted reproduction in Israel gives expression to and develops the right to procreate. It is a complex right, and therefore at times no consensus has been reached on the form of its actual application (as in the case of surrogacy and egg donation, and, from a different direction, in that of posthumous sperm retrieval). This right, however, despite the debates on its boundaries, is widely accepted, practiced, and even encouraged in the Israeli context, with a constructive collaboration of three main elements: the Israeli civil legal system, religious law (which in the context of the Israeli majority is Jewish law), and Israeli society and culture.

In: Brill Research Perspectives in Family Law in a Global Society
The main argument in this BRP is that assisted reproduction in Israel gives expression to and develops the right to procreate. It is a complex right, and therefore at times no consensus has been reached on the form of its actual application (as in the case of surrogacy and egg donation, and, from a different direction, in that of posthumous sperm retrieval). This right, however, despite the debates on its boundaries, is widely accepted, practiced, and even encouraged in the Israeli context, with a constructive collaboration of three main elements: the Israeli civil legal system, religious law (which in the context of the Israeli majority is Jewish law), and Israeli society and culture.

Abstract

The theme of this composition is the right to procreate in the Israeli context. Our discussion of this right includes the implementation of the right to procreate, restrictions on the right (due to societal, legal, or religious concerns), and the effect of the changing conception of the right to procreate (both substantively and in practice) on core family concepts.

In the current Israeli legal and cultural sphere, two issues are at the forefront of the discussion over the right to procreate: first, the regulations governing and conflicts surrounding surrogacy and egg donation, and second, the debate over posthumous fertilization. The first, surrogacy and egg donation, is the typological modern expansion of, or alternative to, traditional procreation. It opens the gates of procreation to individuals and couples for whom natural procreation was not possible in the past (due to medical reasons, sexual orientation, etc.), while, at the same time, it challenges the very understanding of fundamental family practices and concepts, especially as regards parenthood, motherhood, and fatherhood. Part 1 of this composition accordingly discusses the right to procreate, focusing on the regulation and practice of surrogacy and egg donation in Israel.

The second issue, posthumous procreation, is an excellent illustration of the expansion of the right to procreate, and a typological example of how this expansion moderates, or even blurs, existential dichotomies, such as life and death. Part 2 therefore discusses posthumous fertilization, with a focus on the debate over posthumous sperm retrieval of fallen soldiers. This debate clarifies the conceptual distinction between an individual right to procreate and a communal, or familial, right to continuation, along with the fascinating tension between the legal system and the social and political atmospheres.

On the basis of the first two parts, Part 3 focuses on the dramatic conceptual changes of parenthood definitions resulting from the evolution of assisted reproductive technologies (art) and from the broadening of the right to procreate (both are, of course, related, and influence each other). This part deals with the move from formal to functional parenthood, both in Israeli civil law and in Jewish law. The perspective of Jewish law is a significant player at this field, and it is discussed in various occasion throughout this composition. Part 4 accordingly completes the discussion by providing some description and analysis of the basic Jewish law approaches to art.

To sum up, the main argument in this composition is that assisted reproduction in Israel gives expression to and develops the right to procreate. It is a complex right, and therefore at times no consensus has been reached on the form of its actual application (as in the case of surrogacy and egg donation, and, from a different direction, in that of posthumous sperm retrieval). This right, however, despite the debates on its boundaries, is widely accepted, practiced, and even encouraged in the Israeli context, with a constructive collaboration of three main elements: the Israeli civil legal system, religious law (which in the context of the Israeli majority is Jewish law), and Israeli society and culture.

In: Assisted Reproduction in Israel

Abstract

The unique legal system in family law in Israel provides an opportunity for examining the influence of religious courts and religious law on a given society through its legal system. In this paper, we discuss the dynamic relationships between rabbinical courts, civil courts, and society.

Rabbinical courts in Israel are a religious institution officially recognized by the law of the state, with jurisdiction over the Jewish population in some matters of personal status and family law (similarly, other Israeli religious communities – those of the Moslems, 10 Christian denominations, and Druze, are subject to the jurisdiction of their religious courts in similar matters). Intuitively, we expect rabbinical courts to apply Jewish law, and civil courts to apply secular civil law. But this is not always the case; the complex structure of Israeli family law leads to various situations, as for example, when religious law is applied by a secular civil court, and secular law is applied by a religious court. This intricate situation is part of the complexity of the societal place of rabbinical courts within Jewish society.

In this paper we review various areas in which decisions of rabbinical courts affect Jewish Israeli society and evaluate the role of this influence in the life of the citizens. We show how the effect of the decisions of rabbinical courts depends on various elements: the extent of their jurisdiction, the extent of the involvement of civil law in their decisions, and the extent of the integration of religious law in the decisions of the civil legal system, and presumably also the influence of civil courts on religious law itself. As we show, this situation, static at its foundations and dynamic on its surface, is still debated within Israeli society.

In: Religious Minorities in Pluralist Societies