New York (VINnews/Rabbi Yair Hoffman)  Since October 7th, more than 940 IDF soldiers and some 210 members of Israel’s security forces have been cut down by murderous terrorists. For so many of their bereaved families, one yearning rises above every other:

That something of their loved one should yet remain in this world. That a child — a grandchild — a future — should still emerge from the ashes of their loss.

One face of that anguish, recently featured in the Jerusalem Report, belongs to Hadas Levy, a young pediatrician whose fiancé, Capt. (res.) Netanel Silberg, fell in combat in Gaza in December 2023. Levy made a decision that would soon make her the first woman in Israel to give birth to a child whose father had been killed in the war against Hamas.

Her story — and the stories of the some 250 Israeli families who, according to the Health Ministry, have since had their loved ones’ genetic material retrieved and preserved — has placed before the poskim of our generation a series of weighty halachic questions that demand both unflinching rigor and profound rachmanus. What follows is an examination of the underlying halachos.

With the outbreak of the horrific murders of October 7th and the subsequent efforts to eliminate terrorism, many bereaved parents and widows of fallen IDF soldiers and other Israeli security personnel have sought to extract zera from the deceased for future fertility purposes.

The procedure is time-sensitive. When performed within 24 hours of death, viable zera is found in roughly 75 percent of cases. After 72 hours, retrieval generally fails.

Guidelines on the topic were issued by the Attorney General in 2013 and this is the current status:

• A widow or partner does not require family court approval unless a relative opposes the procedure.
• Parents or other relatives must obtain family court approval to retrieve zera.
• During the initial military action the Tel Aviv Family Court issued a temporary directive (through April 30, 2024) permitting parents to retrieve zera without court approval, given time constraints.
• Use of the zera always requires court approval. For a widow, the request is granted on the presumption that the deceased wished to have children with her. For parents, use requires proof that this was the deceased’s wish.

The Three Halachic Scenarios

Three distinct cases must be analyzed, each with different halachic considerations:

• [A] A married soldier with children — the discussion concerns lineage and inheritance.
• [B] A married soldier without children — beyond lineage and inheritance, the laws of yibum and chalitzah must be considered.
• [C] A single soldier — beyond lineage and inheritance, fertility would be performed via the womb of an unmarried woman, requiring its own analysis.

Most of the material quoted here can be found in Rav Tzvi Reizman’s Ish Milchama Siman 23. Rav Mordechai Halperin (Kovetz Beis Hillel Vol. 9, p. 50) was asked about a young bachelor who froze zera before chemotherapy and later died, leaving a letter stating: “There is at the hospital frozen zera of mine, as I would have wanted that it should be made use of.”

Rav Halperin observed that there is no fulfillment of the mitzvah of pru u-revu after death, since “the dead are exempt from any mitzvos” (Shabbos 30a, expounding Tehillim 88:6). However, he suggested that fulfilling the deceased’s will may constitute chesed shel emes, comparing it to saying Kaddish for a parent or other acts of kindness performed for the deceased (Sukkah 49b; Yerushalmi Pe’ah 1:1; Beis Yosef YD 376).

On this basis he initially concluded that fulfilling the deceased’s wish to leave a name and remnant constitutes chesed shel emes. He later modified his position (Kovetz Asia 75-78, p. 113), but maintained the basic permission.

V’Ahavta L’Rayacha Kamocha as a Foundation

Beyond the framework of chesed shel emes, there is an additional and powerful consideration that bears directly upon both the spouse and the parents of the fallen: the mitzvah of v’ahavta l’rayacha kamocha (Vayikra 19:18). The Ramban (in his commentary to that pasuk) explains that the obligation requires a person to desire for his fellow every good that he desires for himself — not in measured portions, but in the fullness of what one would wish for one’s own self. The Chofetz Chaim, in the introduction to Ahavas Chesed, develops this principle at length, demonstrating that the mitzvah extends not merely to acts of kindness during life but to the totality of what a person would wish realized on his own behalf.

For many a widow whose husband was killed in battle, the longing to bear his child is among the deepest expressions of the love commanded by this mitzvah. She seeks to actualize for him precisely what he would have desired for himself — a child, a continuation, a name in Klal Yisrael. So too for parents who knew their son’s heart, who heard him speak of the family he had hoped to build, who understand with the certainty that only a parent possesses what their child would have wanted brought into the world after him. The mitzvah of v’ahavta l’rayacha kamocha, applied to the deepest aspirations of the deceased, provides a Torah foundation for understanding why these requests are not merely emotional impulses but the very fulfillment of an obligation between Yisrael and Yisrael.

This consideration is perhaps the underlying position of those poskim who permit posthumous retrieval and use, particularly where there is a clear umdana — a reasoned assessment but they qualify it based on the deceased’s known wishes, character, and life trajectory — of what he also would have wanted. The Sefer HaChinuch (Mitzvah 243) writes that the root of v’ahavta l’rayacha is that one should care for his fellow’s body and money as he cares for his own.

Rav Asher Weiss’s Sharp Disagreement

Rav Asher Weiss, Av Beis Din Darkei Torah (in Kovetz Beis Hillel Vol. 9, p. 53), rejected Rav Halperin’s permission on multiple grounds:

• There is no mitzvah of pru u-revu after death, since the deceased is exempt from mitzvos.
• The principle of “mitzvah l’kayem divrei ha-meis” (the mitzvah to fulfill the words of the deceased) applies only to monetary matters and inheritance, not to other matters (Tashbetz Vol. 2 §53).
• Practically, since one cannot use a bachelor’s zera to inseminate a married woman, the procedure inherently leads to single motherhood which is “not according to the conduct of those who fear heaven and keepers of Torah and mitzvos.”
• Permitting this encourages parents to bring forth children outside of marriage.

His conclusion: “It does not appear at all to fulfill this request… it shall not arise and shall not enter at all.”

Rav Zalman Nechemiah Goldberg’s Position

Rav Zalman Nechemiah Goldberg zatzal (Asia Heh-Vav, Elul 5739, p. 47) ruled: Without consent of the deceased, the procedure is forbidden. But with explicit consent or a clear assessment (umdana) that this was his wish, fertility is permitted, since “the Torah considers very greatly the human will to leave a name and remnant in the world, as one learns from the Parashah of Yibum.”

He invoked the Sefer HaChinuch (Mitzvah 598) on the root of yibum: there is no greater remnant for the deceased than offspring established through one who shared his flesh.

Rav Halperin relied on Rav Goldberg’s reasoning to permit fertility for a deceased bachelor as well. Rav Weiss rejected this analogy, arguing that the reasons of mitzvos cannot be extended beyond their explicit context, especially yibum, which contains kabbalistic dimensions.

The Status of a Common-Law Partner

A particularly sensitive question arises when the fallen soldier was not formally married but lived together with his partner in a stable household, as is common in modern Israeli society. Many are of the opinion that, according to Rav Yosef Eliyahu Henkin zt“l, such a common-law living arrangement is considered like marriage in halachic terms. Rav Henkin held the position — developed in his teshuvos and discussed extensively by his talmidim — that a couple who lived together openly and exclusively as husband and wife may be regarded as having effected the third form of marriage listed in the first Mishna in Kiddushin.

On this view, the common-law partner of a fallen soldier may perhaps be treated, for the purposes of posthumous fertility, much as a halachic widow is treated: there is a presumption that the deceased wished to have children with her, the umdana is strong, and the considerations of v’ahavta l’rayacha kamocha apply with their full force. This position is not universally accepted — many poskim require an actual chuppah and kiddushin and do not extend Rav Henkin’s reasoning to contemporary arrangements — but it is widely cited and forms a meaningful basis for leniency in cases where formal marriage did not occur but a genuine marital relationship clearly did. Practically, a sho’el u’meishiv must be consulted in each individual case.

Summary

The questions raised by posthumous fertility in the wake of October 7th touch the deepest places in halacha and in the human heart. The poskim are divided: Rav Asher Weiss rules stringently across the board; Rav Zalman Nechemiah Goldberg permits where there is consent or a clear umdana; Rav Halperin extends that permission, with qualification, even to a deceased bachelor. The mitzvah of v’ahavta l’rayacha kamocha provides a Torah foundation for the spouse and parents who seek to fulfill the deepest wishes of their loved one, and the position attributed to Rav Henkin zt“l regarding common-law arrangements broadens the category of those who may halachically be treated as a widow for these purposes.

As always in matters of such gravity, every individual case requires the guidance of a competent posek who knows the family, the circumstances, and the wishes of the niftar.

May Hashem comfort the bereaved among Tzion and Yerushalayim, and may the names and remnants of those who fell protecting Klal Yisroel be remembered as a zchus for us all.

The author can be reached at [email protected]