Kahn, Susan Martha. Reproducing Jews: A Cultural Account of Assisted Conception in Israel. Durham, NC: 2000.

Kahn relates to actual practice concerning assisted reproductive technology for unmarried women, issues of single parent families, relationship to sperm “stealing,” donor choice and to nurses’ and doctors’ input into donor selection in Israeli fertility clinics. Although she does not go deeply into halakhic opinions, she gives excellent overviews of major halakhic opinions and new reproductive technology and the interaction of civil law and halakhah in Israel. She reviews the findings of the Aloni Commission (1994) which included advocacy for nondiscriminatory access to NRT for unmarried women, divorcées, widows and lesbians. The recommendation of abolition of psychiatric evaluations of such women was ultimately upheld by the High Court of Justice in Israel. She reviews the suggestion that there be donor identification in order to prevent future incest (proposed by Rabbi Dr. Mordecai Halperin) which was rejected in favor of anonymity due to issues of privacy, possible stigmatization of the child and paternity suits from sperm donors. As a result of the civil legislation, the majority of semen donors in Israel are Jewish though the option of receiving non-Jewish donor semen exists. Kahn has chapters devoted to semen and paternity (halakhically, civilly, socially and by kinship standards) and to the dual nature of motherhood (genetic and gestational/birth), including R. David Bleich’s suggestion that there may be two mothers in some cases of IVF and surrogacy. She identifies as racist certain halakhic opinions concerning prohibiting AID on grounds of “purity of Israel” (at least in her note) and relates to preferences for certain types of donor semen.

Numerous interviews with women involved in infertility treatments as well as with medical staff give space for women’s voices. Her appendices translate into English some of the National Health and Israeli Knesset Regulations concerning IVF, semen procurement and surrogacy, a very helpful addition for those who do not read Hebrew. She unfortunately includes the responsum of the Conservative Rabbi David Golinkin prohibiting AID for single women. His reasoning focuses on seed wastage (with the presumption of a Jewish semen donor, because why would anyone want a non-Jewish donor in Israel!), the potential for incest (which doesn’t exist for a non-Jewish donor), the potential problems resulting from single-parent families and the diminishment of the significance of holy matrimony. His recommendation that such women turn to matchmakers to find husbands and reproduce naturally dismisses the halakhic inequities for women in marriage, attempts to limit women’s choices and denigrates their pain.

Dorff, Elliott. Matters of Life and Death: A Jewish Approach to Modern Medical Ethics. Philadelphia: 1998. Part 2: Moral Issues at the Beginning of Life, chapters 3–4 (pp. 37–115).

Dorff is a Conservative rabbi whose halakhic decisions are often accepted and published by the Committee for Standards and Law on reproductive issues. He sees a demographic imperative on the part of Jews to produce three to four children per family in order to guarantee Jewish survival. As a result he is lenient on most issues in reproductive technology. In AID and surrogacy, he pushes for identification of the donors which would allow Jewish donors without fear of future incest and would allow medical histories and personality traits to be made known to the families. He extends the incest prohibitions to non-Jewish donors. He is exceptionally sensitive to the impact of infertility on the individuals and the potential for destabilizing marriage. He categorizes some of the prohibitions concerning donor gametes as racist. Dorff relates seriously to the risks for women in IVF and ova donation and recommends full disclosure and evaluation of the risks before decision about undergoing the procedures. He is very clear that when a person is unable to procreate without medical assistance, they are not obligated to do so and are not considered sinners. He cites Orthodox, Conservative and Reform positions on NRT and generally relates to the wider issues (e.g. careers, social realities of sexual behavior, feminism, risk to women, etc.). Dorff excludes Jews from the imperative for population control on the basis of the Holocaust and of the tiny percentage of world population made up by Jews. He does urge people to consider reproducing at a younger age in order to prevent fertility difficulties. Contrary to Golinkin, Dorff feels that a formal halakhic decision about the use of NRT by unmarried women is premature.

Rosner, Fred, and J. David Bleich (eds.). Jewish Bioethics Hoboken, NJ: 1979, 2000. Fred Rosner, Chapter 9, “Artificial Insemination in Jewish Law” (reprinted from Judaism Fall, 1970).

Fred Rosner is an Orthodox physician. He claims that AID is considered an abomination by most rabbis. It is strictly prohibited due to possible future incest, lack of genealogy and inheritance issues. Some poskim regarded AID as adultery requiring divorce and forfeiture of the ketubbah. Most poskim do not consider it adultery and the woman is allowed to cohabit with her husband. Most consider a child resulting from AID as legitimate while a minority claims that the child is a bastard or a doubtful bastard. Most consider the child to be the offspring of the donor in all respects (inheritance, support, custody, incest, living in a specific area, etc.) but without the fulfillment of the mitzvah of procreation. According to Rosner, after AID or even AIH, the woman is considered to be pregnant by another man or nursing another man’s child. Most poskim allow AIH after a waiting period of two, five or ten years or absolute medical proof of infertility. Many do not allow insemination during niddah. Semen collection is through coitus interruptus or condom. All cases must be judged individually. This article is outdated and its main interest is in allowing us to see the halakhic development in the area.

Rosner, Fred. Biomedical Ethics and Jewish Law. Hoboken, NJ: 2001.

Although the publisher claims that this book reworks previous articles and has many additions, the chapters on contraception, artificial insemination, in vitro fertilization, abortion and multifetal pregnancy reduction are exactly the same as they are in Rosner’s Modern Medicine and Jewish Ethics (second edition), 1991. This annotated bibliography will deal with chapters 12, 13, 16 and 17 in the latter.

Chapter 12: “Artificial Insemination,” pp. 127–142. This chapter is outdated. The last article cited is from 1980.

Chapter 13: “IVF, Surrogate Motherhood and Sex Organ Transplants,” pp. 143–163. AIH is permitted by most poskim after a waiting period of two, five or ten years or medical confirmation. AID is considered an abomination by most poskim and is prohibited due to the potential for incest, unclear genealogy, inheritance laws and, for a minority of poskim, adultery. For semen collection, masturbation should be avoided if possible, making condom use or postcoital semen retrieval the norm. Rosner considers IVF to hold only a small risk since laparoscopy is minor surgery. He makes no mention of the dangers of hormone treatment to stimulate hyper-ovulation. He does mention that there is no female obligation to undergo IVF as natural intercourse is her only obligation. The latest article cited is from 1984, making it outdated.

Chapter16: “Pregnancy Reduction,” pp. 197–204. Rosner states that “abortion of one or more of the fetuses is never allowed in Judaism for the sake of the fetus.” MPR is permissible only if the multiple pregnancy poses a serious danger to the mother’s physical (or mental) health or constitutes a threat to her life. He then claims that since multiple pregnancy in and of itself is a threat, MPR is permitted. There is no biblical prohibition to abortion prior to forty days but some poskim object because of seed wastage. Most poskim allow MPR. Rosner suggests renaming the procedure “enhanced survival of multiple pregnancy in first trimester along with enhanced safety of the mother.”

Chapter 17: “Genetic Screening, Genetic Therapy and Cloning” pp. 205–221. This is a revision of Rosner’s chapter on Tay-Sachs in Modern Medicine and Jewish Ethics. It deals with genetic screening of pre-embryo in IVF, which is permitted. According to Rosner, prenatal genetic screening through amniocentesis or chorionic villi testing resulting in fetal destruction would be an abortion and therefore forbidden. Rosner deals with theoretical questions concerning fetal diseases such as Tay-Sachs, which is fatal within a few years of birth, vs. hemophilia or late-developing diseases without a cure, such as Huntington’s. He relates to education and counseling, diseases and screening programs and the necessity for confidentiality and justice. Rosner claims that gene therapy when it becomes possible would be permitted by Jewish law.

Feldman, Emanuel, and Joel B. Wolowelsky, eds. Jewish Law and The New Reproductive Technologies, Hoboken, NJ: 1997.

This book consists of an introduction by the editors and eight essays on various topics. The first two essays deal with rabbinic ideas of conception, generation and gestation and will not be reviewed below. All the articles in the book are well footnoted with up-to-date bibliography; all were previously published in Tradition and some were reprinted in various other volumes.

Bleich, J. D. “In Vitro Fertilization: Questions of Maternal Identity and Conversion.” (Reprinted from Tradition 25: 4, Summer 1991): Chapter 3, pp. 46–82.

Bleich opens this discussion about maternal identity and host mothers by dealing with the potential for dual maternity due to the ovum donor (genetic mother) and the gestational mother. He leaves open the possibility that a baby may have two halakhic mothers. Part of this is based on the conflict between the possibility of ova donations creating genetic kinship relations, which reflects medical reality, and the contribution towards motherhood during gestation and birth, which creates the normal consanguinity prohibitions discussed in the Talmud. R. Waldenberg rejects the notion of maternity inhering in IVF because of the unnatural manner of fertilization, the lack of connection to genealogy via such conception and the absence of the normal connection of the ovum to the mother’s body. Bleich counters these arguments and discusses parturition as a determinant in establishment of maternity. He cites BT Yevamot 97b regarding a woman who converts during pregnancy. Her conversion severs the relationship previously established with her fetus but the fetus is considered to be Jewish at birth, making parturition a determinant of maternity. Paternity is established by conception and significant development of the fetus (three months). If maternity were to parallel paternity, gestation would be a determinant of maternity. It should be noted that such a position might have impact on abortion considerations.

Bleich creates an analogy between ovum donation and grain before and after the omer which is what determines its permissibility or prohibition for eating. This analogy may be annulled by the subsequent parturition maternal relationship. The issue is whether the sources, which were not cognizant of ovulation as a phenomenon, recognized female seed, the genetic contribution of the woman. This would have implications in reference to non-Jewish ovum donors, as “non-Jewishness” may inhere in the ovum, requiring conversion of the child even though the birthing mother was Jewish. R. Moshe Sternbuch argues that the maternal relationship and blood relationship are established at the time of parturition but the impurity inhering in the non-Jewish ovum must be removed by conversion. This creates two different kinds of conversions, one of which is for the purpose of becoming a Jew and the other for the purpose of removing non-Jewish impurity, i.e. acquiring the sanctification of an Israelite.

Some rabbis hold the latter position when the father is not Jewish. These positions are based on that of Maimonides concerning a pregnant proselyte who gives birth to a male child who subsequently needs circumcision to complete the conversion process. The question remains whether immersion of a Jewish mother pregnant with a non-Jewish ovum is sufficient for the conversion of the fetus.

The donation of a Jewish ovum for a non-Jewish gestational mother who will continue to raise the child has raised halakhic questions. If such a procedure creates a child who is half-Jew and half-Gentile, it is as if the Jewish half is being given up for the sake of “idolatry.” Bleich expands this problem to a non-observant Jewish gestational mother with the additional problem of the potential for future incest. Bleich concludes that there is firm basis for maternity arising from parturition but doubtful maternity arising from genetic and even gestational relationships, which require conversion.

Bick, Ezra. “Ovum Donations: A Rabbinic Conceptual Model of Maternity.” (Reprinted from Tradition 28:1 Fall, 1993): Chapter 4, pp. 83–106.

Bick refutes Bleich’s arguments on a point-by-point basis, rejecting the notion that there is a preponderance of halakhic sources in favor of parturition as the maternal determinant. He considers the analogy of a convert mother to a transplant mother as flawed and claims that the principle that a convert has the status of the newborn eliminates only previous family relationships but does not erase historical facts. He hopes to establish a different methodology for this new halakhic question. He puts forth two possible models: 1) the combination of genetic materials from the mother and father to produce a new human being (an accurate medical account); 2) the model of conception which rejects the idea that women have “seed” but rather sees them as being the field in which male seed is sown. Bick prefers the agricultural model (i.e. the Aristotelian model) to the accurate biological model, thereby negating the existence of female seed. Because the ovum fertilized in a petri dish has no genealogical status and the fact that until forty days the embryo is considered “mere water,” implantation into the woman's uterus would confer maternal identity (as if it were conception) upon the embryo which reached the post-forty day stage. According to Bick, the biological model complicates the issues halakhically because the genetic contribution of both biological parents would have to be accounted for.

The final section of Bick’s article attempts to substantiate his argument by demonstrating how rabbinic sources denied the existence of the ovum as a contributing factor to conception. He cites BT Niddah 31a “if a woman is mazria (!) first, she will bear a male child …” Rather than seeing this as an attempt to apply a male paradigm (ejaculation, i.e. orgasm = “seeding”) on the female where orgasm and ovulation are two separate phenomena, he concludes that it supports the agricultural model. According to Bick, Leviticus 12:2 means only to receive fruitfully male seed rather than considering the meaning of the hif’il form of the root zera. He backs this up with Ramban’s commentary on the verse, which is filled with numerous scientific errors. Although Bick’s attempt to uncover the conceptual model is creative and the principle is no doubt significant in halakhic discussion, when it comes at the expense of denying women’s genetic contributions to reproduction to make the halakhic issue less complicated, it is misguided.

Bleich, J. D. “Maternal Identity Revisited.” Chapter 5, pp. 106–114.

This essay refutes Bick’s critique of Bleich’s article on a point-by-point basis. Bleich claims that when conventional halakhic models provide no solutions, it is illegitimate to make “desperate attempts to preserve a semblance of halakhic reasoning.” He includes inappropriate analogies, construction of conceptual models and derivation of halakhic norms from philosophical or aggadic notions as such attempts. Although Bleich's method generally results in halakhic stagnation, in this instance the possibility of two halakhic mothers is at least true to science.

Jacobovits, Yoel. “Male Infertility: Halakhic Issues in Investigation and Management.” Chapter 6, pp. 115–138.

Jacobovits begins his article with Jewish views of procreation, an overview of male infertility and semen procurement. He discusses the lack of an explicit prohibition concerning masturbation in the Bible. The prohibition is variously categorized as prohibited sexual relations or a prohibition in and of itself or a prohibition of rabbinic origin. He analyzes the Er and Onan story and the halakhic derivation concerning coitus interruptus. Jacobovits is one of the few to mention the lenient positions in reference to coitus interruptus (R. Eliezer), unnatural intercourse (which may be considered any non-coital sexual relations, BT Nedarim 20b, Beit Yosef on Tur EH 25, Kol Bo Ishut 76, R. Isaiah da Trani) and masturbation (Sefer Hasidim 176). He also mentions the impact of Kabbalistic literature, which prohibits spillage of seed under any circumstance, and halakhic discussion concerning masturbation. He then reviews positions on AIH and AID and the purpose of semen procurement which is for the sake of procreation. He mentions both BT Yevamot 76a, which allows ejaculation to ascertain whether a genital injury has healed and made the man marriageable, and the comparison of masturbation to murder, idol worship and adultery/incest in BT Niddah 13a.

The central issue is semen procurement for fertility testing. The lenient position is that although the semen is not being used for procreation, the ultimate goal of testing the semen is for the sake of procreation, allowing various methods of procurement. The stringent position based on BT Niddah and the Kabbalistic denunciations of masturbation have pushed some poskim into recommending divorce for an infertile couple (R. S. Engel). A lenient position is espoused by R. S. B. Sofer who would permit masturbation for semen collection if other poskim agreed with him. At this point Jacobovits cites R. Waldenberg’s suggestions for semen procurement in order of priority: post-coital semen collection, coitus interruptus, condom, an intravaginal receptacle and finally masturbation, preferably with a mechanical stimulator. This list favors stringent positions on masturbation over women’s modesty, since most post-coital semen collection is done by male doctors. It is surprising that in an article which tends to favor lenient positions, the questionable stringencies concerning masturbation and fertility testing are listed without even reference to women’s modesty. Moreover, the very easy solution of non-coital sexual relations in which the woman stimulates the man to ejaculate into a container or condom (which would fall under the leniency of “unnatural intercourse”) is not mentioned. Testicular biopsy has been allowed by some poskim as the injury does not constitute wounding or crushing the testes. Jacobovits ends his article with a discussion of metaphysical and psychological considerations. He is particularly sensitive to the devastating impact on the male and the marriage if there is confirmation of male infertility.

Bleich, J. David. “Sperm Banking and Anticipation of Infertility.” Chapter 7, pp. 139–154.

After a short review of halakhic opinions concerning AIH and methods of semen procurement (indirect or direct), Bleich goes on to review the lenient positions concerning men who are facing radiation or chemotherapy which will cause infertility. R. Bakshi-Doron allows AIH and semen banking for a married man who is actually obligated in procreation but not for an unmarried man. R. Shlomo Zalman Auerbach makes no distinction between a married man and a bachelor but does not obligate a man to freeze semen. R. Auerbach and R. Eliashiv neither prohibit sperm banking, nor do they encourage it, and their tentative acceptance of it is the dominant view.

Breitowitz, Yitzchok. “Halakhic Approaches to the Resolution of Disputes Concerning the Disposition of Pre-embryos.” Chapter 8, pp.155–186.

Breitowitz gives a rapid review of the halakhic considerations in IVF, beginning with AIH, which is accepted by most poskim and constitutes the fulfillment of at least the commandant of inhabiting the land. He does cite the objection of R. Waldenberg, who prohibits IVF because of seed wastage because only some semen is used for fertilization; seed wastage, because the mitzvah of procreation is not fulfilled outside the uterus; and IVF because it does not create a paternal or maternal relationship with the offspring. R. Moshe Sternbuch prohibits IVF on similar grounds. R. Yehuda Gershuni denies paternal relationship but allows the procedure because it fulfills the mitzvah of inhabiting the land. These poskim are in the minority as most have accepted that there is parental relationship to IVF offspring, that IVF does not constitute seed wastage and that at least the mitzvah of inhabiting the land is fulfilled. The rest of the article rests on these last three assumptions.

Breitowitz reviews the situations in which “extra” pre-embryos come into being and reviews two cases where courts adjudicated custody or disposition. He then suggests five possible models to halakhically arbitrate the issue: 1) halakhic lacuna in which no one is vested with decision-making authority over the pre-embryo because it is potentially human and cannot be owned; 2) paternal authority using compensation to the father for loss of a fetus as the (questionable) basis of his dispositional authority; 3) sperm procured for IVF procedure becomes “property” of the woman as a “gift”; 4) child custody paradigm based on best interests of the child; 5) joint venture model which views the idea of procedure as a partnership of something which cannot be divided. Based on these models Breitowitz suggests that in the event of divorce, either partner has the right to stop the process from going forward, the (former) wife has rights to carry on only until her remarriage, the woman may refuse to go on with implantation and the (former) husband cannot use the pre-embryo with another woman. He further discusses whether in the case of death the IVF procedure could be continued based on carrying out the wishes of the deceased. Breitowitz makes a distinction between the pre-embryo and frozen sperm.

Tirzah Meacham (leBeit Yoreh). “Seminal Issues.” In Jewish Legal Writings by Women, Volume 2, edited by Micah D. Halpern and Chana Safrai, forthcoming.

This is a gender analysis of R. Eliezer Waldenberg’s position on semen procurement for fertility testing. The article demonstrates that rabbinic preference for halakhic stringencies for men are played out on women’s bodies. Issues of modesty, comfort and even physical safety of women are set aside in order to allow men to hold the most stringent positions in reference to masturbation. The critical passage in BT Yevamot 76a deals with the necessity of examining a man while having an ejaculation in order to determine that his penile injury has healed and would not reopen during ejaculation. This is in order to allow him to marry a Jewish-born woman. The two modes mentioned in the Talmud to stimulate the man to ejaculation are showing him women’s colored garments and application of heat to the anal area. Many have interpreted this to mean that only indirect modes of stimulation are allowed, rather than understanding direct masturbation as an obstruction to the necessary visual examination of the penis during ejaculation. R. Ouziel has interpreted this passage to mean that in any situation in which there is a need for ejaculation without coitus, any mode of achieving ejaculation is allowed. The narrow interpretation of R. Waldenberg and others is partially based on a desire to emphasize in every manner possible that masturbation is forbidden based on the extreme statements in mystical texts and BT Niddah. An easy mode to obtain semen, i.e. non-coital stimulation by the woman, is not mentioned by the poskim possibly because of their agenda to limit sexual expression only to coitus (lest fornication in other situations result) and not to engage in a discussion of sexuality. R. Ouziel’s position could be applied to an infertile couple were there a rabbinic will to do so.