Reproductive Technology, New (NRT)
New reproductive technology has provided the solution for problems of infertility for hundreds of thousands of couples. For halakhically observant Jews, especially in the pro-natal state of Israel, and in general in the post-Holocaust era, new reproductive technology has been a blessing but has also created a multitude of halakhic problems. Use of such technology is on the rise due to later age at time of marriage, desire to delay procreation for educational, vocational or economic reasons, decline in fertility with increasing age and decline in male fertility due to growing toxicity in the environment.
Israel has the highest per capita rate of fertility clinics in the world. It has greater socialized medical coverage of new reproductive technologies than any Western country. In addition to the natural desire to reproduce, this is due in part to the murder of six million Jews in the Holocaust, in part to the Jewish male’s obligation to procreate; and for some segments of the population, competition with and the felt need to counter Arab population growth. The pronatalist society has increased the sense of failure in infertile couples, pushing them to find a variety of solutions for infertility. The Pu’ah Institute (an acronym for the Hebrew “fertility and medicine according to halakhah”) in Jerusalem gives halakhic counseling to infertile couples, informs them of reproductive technological opportunities, advises them concerning halakhic issues and directs them to appropriate centers, staffed by doctors willing to relate to halakhic concerns. Many women, particularly in the ultra-Orthodox and Orthodox communities where a very high premium is placed on fertility, are uncritical consumers of new reproductive technology. Unfortunately, the poskim (decisors) are willing to exploit this natural desire and societal pressure by subjecting them to unnecessary techniques in order to maintain halakhic stringencies for the men involved. Although any woman can refuse to undergo any reproductive technological procedure, her infertility puts her at a social disadvantage and may be used as grounds for divorce. As a result, women are often pressured into repeated fertility treatments. Male impotence and infertility can be grounds for divorce if the woman claims that she wants children to lean on in her old age and to bury her (BT Yevamot 65b). The rabbinic courts from Talmudic times have considered impotence and infertility claims to be very delicate and fraught with shame, making such claims unlikely on the part of women. Moreover infertility, unless intentionally used as a divine punishment biblically (e.g. Pharaoh and Avimelekh concerning Sarah), was attributed to women, particularly if the man was not impotent.
Almost none of the responsa relate to the health or safety of the woman undergoing fertility treatments. A few note that the woman is not obligated to undergo any fertility treatment but at the same time do not relate to her vulnerable position in that her husband may divorce her because of her infertility. At least one acknowledged rabbinic authority suggested that the obligation to procreate has been suspended in the post-destruction of the Temple era. Nonetheless a couple may choose to undergo fertility treatment, especially if infertility is painful for the woman.
From the middle of the amoraic period Jewish menstrual laws (niddah) took all women out of the category of normal menstruants (seven days) and put them into the category of women with abnormal uterine bleeding (zavah). This stringency has been one cause of infertility due to halakhic observance (akarut hilkhatit). The necessity of waiting seven clean days after the cessation of menstruation (a minimum of twelve days) had the result that women with short cycles would be in a post-ovulatory stage before resuming sexual relations in a state of ritual purity. In the past this destined women to infertility with the possibility of divorce as a result of the infertility. Some modern attempts to chemically adjust the cycle have been successful. Some halakhic authorities even allowed artificial insemination with the husband’s semen to occur before the completion of the seven clean days in order to allow conception without transgression of the rabbinic norms (Rabbis Ovadiah Yosef and Moses Feinstein). Some require immersion after the seven days of niddah in accordance with biblical and early rabbinic law before artificial insemination (Minhat Yizhak) while others forbid immersion lest the couple come to believe that intercourse itself is permitted prior to the seven clean days in accordance with the rabbinic decree. Maintaining the structure of the stringent niddah laws has been paramount in determining reproductive technology.
If after a year of unprotected regular intercourse the woman has not conceived, the diagnosis of infertility is made. In a normal fertility work-up the man is asked for a semen sample because it is the cheapest and least invasive fertility test and the one with the fastest results determining whether the root cause of the infertility is primarily due to the man. Many poskim forbid masturbation to obtain the semen sample as this is considered needless spilling of his seed (hashhatat zera), preferring instead post-coital semen collection from the woman (e.g. Rabbis Abraham Kook, Moses Feinstein and Eliezer Waldenberg). Ignoring modesty issues for the woman who must be in the doctor’s office within one to two hours after coitus for a pelvic procedure, usually performed by a male doctor, is less bothersome for most poskim than allowing the man to masturbate to produce the semen for the fertility test. Some poskim allow use of a medical condom or coitus interruptus or non-coital sexual relations by the couple in which the ejaculate is collected. Rabbi Ben Zion Ouziel interpreted BT Yevamot 76a, the same source used by the other poskim to forbid masturbation, to allow masturbation in case of need. His statements, made concerning a man with damaged genitalia who could ejaculate properly and thereby marry a Jewish woman, could easily be applied for semen testing. Semen analysis often determines whether surgical intervention is necessary, for example there is a high correlation between varicoceles (which can easily be repaired surgically) and male infertility.
Fertility work-up on the woman is much more complicated and expensive than for man because a woman’s reproductive organs are internal; thus some of the tests are invasive, with the risk of injury or infection. Hence in secular society male fertility is always examined before checking for female related causes for infertility. The percentages of infertility are roughly the same for both sexes: forty percent attributed to male causes, forty percent attributed to female causes and twenty percent with unknown causes or a combination of sub-fertility in both.
Disease and malformation of the fallopian tubes are factors in a significant percentage of female related infertility. The two standard tests to evaluate the tubal factor, hysterosalpingography (HSG) and laparoscopy, require anesthesia. HSG requires the insertion of a cannula through the cervix into the uterus through which radiopaque contrast medium is injected and followed by radiographs or fluoroscopy in order to determine that the fallopian tubes are open. Use of oil-based contrast mediums have sometimes resulted in lipid embolization (fats clotting together) and the penetration of the clot into the venous or lymphatic system. This procedure may be considered dangerous as it carries some risks; a small number of deaths and a large number of injuries and illnesses have resulted. Laparoscopy with lavage is a similar process with the insertion of a dye through a cannula and a camera inserted through an abdominal opening to visualize the movement of the dye through the fallopian tubes. The insertion of the cannula itself is considered to cause a state of niddah impurity because the concept “The grave [= uterus] cannot be opened without blood” goes into effect even in the absence of overt uterine bleeding.
Ovarian factors are generally tested by taking the basal temperature each day for a number of cycles, following follicular development by ultrasound, or a series of blood tests to determine hormonal levels. Endometrial biopsies give indirect evidence for ovulation. Despite the added cost factors and invasive methods, most poskim require a fertility work-up on the woman before allowing semen testing but generally do not require HSG prior to male testing because of the pain and danger to the woman involved in that procedure.
After a diagnosis is made there are several possible treatments. Artificial insemination (AI) is the oldest method, widely used since the mid-twentieth century. Halakhic questions associated with AI include the legitimacy of non-coital ejaculation even for the purpose of procreation; the status of a child conceived by AI both in regard to illegitimacy (mamzerut) and family status (Kohen, Levi or Israel); status of the mother in reference to adultery and halizah; status of the child as heir to the husband of the mother; fulfillment of the biblical commandment to procreate incumbent on the man and the rabbinic commandments to inhabit the land and not to cease procreating; future potential for incest in the case of an anonymous donor; permissibility if the man has already produced children; genealogical issues; the unnaturalness of technology denigrating normative sexuality; the potential for resentment on the part of the husband when donor semen is used; stress on the marriage due to the rigors of fertility treatments, and other health issues.
Semen collected for insemination sometimes undergoes treatment prior to insemination. Sperm are sometimes washed in such a way as to separate them from the seminal fluid to increase their motility when this is suspected or diagnosed as a problem for fertility. Alternatively, a swim-up technique is applied to fresh semen by which only the most motile sperm are collected. A culture medium is placed over the semen allowing healthy motile sperm to swim up to it. Sperm may also be frozen and stored for future procedures. Careful identification on the containers and the use of new or newly sterilized laboratory equipment are absolute requirements lest mislabeled semen samples get mixed up with each other. Some fertility clinics have specially appointed overseers (mashgihot) to see that only the designated semen and ova are combined in vitro fertilization and only new or sterilized equipment is used for semen collection and transfer.
Most poskim allow artificial insemination with the husband’s semen (AIH), tending towards leniency in reference to non-coital ejaculation for this purpose. Most poskim consider the husband to have fulfilled at least the mitzvah to inhabit (lashevet) if not the mitzvah of procreation (R. Eliyahu Bakshi Doron permits semen collection only for this mitzvah). For others the issue is undecided (R. Shlomo Zalman Auerbach). Some poskim consider that AIH exempts the woman from the need for halizah upon her husband’s demise should he have no other children and have a paternal brother. Transferal of his family status to the child without natural conception is questioned by some poskim and some have suggested transferring the status of the mother’s father to the child. Most consider the child as legitimate heir. Some, however, require the physical act of intercourse to establish halakhically recognized paternity.
AIH solves a relatively low percentage of fertility problems, for example, if the husband is impotent but has sufficient quantities of normal motile sperm; if the number is low but can be concentrated by combining extracts of his different ejaculates; if he has retrograde ejaculation into the bladder; if he has hypospadias where the opening to the urethra is not at the tip of the penis, preventing the semen from being ejaculated into the vagina; or if the vaginal chemistry is too hostile to the husband’s sperm. During AIH semen is generally injected directly into the uterus. The greatest halakhic concern in this technique is that the husband’s semen could inadvertently be confused with someone else’s semen in the laboratory of the fertility clinic, thereby confusing the genealogy and according to some poskim creating a mamzer. In general, seed wastage for semen testing is a primary concern in the diagnostic stage but not in the insemination stage.
Artificial insemination using semen from a donor (AID) is far more halakhically controversial. Some poskim, including R. Joel Teitelbaum, interpret Lev. 18:20—“Do not give your lying (shekhovtekha) for seed (zera) to the wife of your fellow”—to include not only actual physical sexual intercourse but also semen from a donor. For these poskim AID constitutes adultery and results in the illegitimacy of the offspring. Those who permit AID interpret this verse to mean that only sexual intercourse (“your lying”) yields adultery and bastardy. Even those poskim who permit AID, for example R. Moshe Feinstein, do so only because of extreme distress of the childless woman married to an infertile man. R. Feinstein requires the consent of the husband for AID. The absence of consent on his part can be used as grounds for divorce. Other poskim agree that AID is not adultery but consider it an abomination. Those who allow AID require non-Jewish donors. The most significant halakhic issue is that a Jewish donor (who by civil law remains anonymous) could be a donor for several different women, creating a sibling relationship among such offspring. Because of the anonymity, these siblings may inadvertently marry each other, transgressing the biblical incest laws and resulting in offspring who are bastards. Only if the donor were identified, causing potential social and legal disruption, could such a situation be avoided. AID is not problematic in terms of the Jewishness of the child because Jewishness is universally accepted when transmitted through the mother. The husband, however, does not fulfill his obligation to procreate through AID and if he dies without naturally conceived children and has paternal brothers, halizah must still be performed before his wife can remarry, despite the fact that she has had children. Children produced through AID are not considered legitimate heirs but the husband could make a will in which he gives them (or others) all his property so that they are not guilty of robbing the biblically established heirs of a childless man.
In addition to the halakhic issues concerning AIH/AID, new issues arise for in vitro fertilization (IVF). A few poskim forbid IVF (e.g. Rabbis Eliezer Waldenberg, Yehuda Gershuni and Moshe Sternbuch). R. Waldenberg justifies his position on the basis of seed wastage, that no procreation can take place outside of the uterus and that there are no paternal/maternal relationships established by IVF. The majority of poskim, however, permit IVF and accept the child born of the Jewish mother as a kosher Jewish child with both maternal and paternal relationships. Halakhically, IVF is more complicated than AI but avoids some of its problems and creates leniencies with reference to genetic screening and disposal of defective pre-embryos and unneeded fertilized ova. The procedure is generally used for women with damaged fallopian tubes, unexplained infertility or male infertility. Certain rabbis have used this method to get around the halakhic difficulties mentioned above connected with AID because in IVF male seed is not inserted into the woman’s uterus but rather fertilized ova, thereby removing issues of bastardy. Unfortunately, IVF involves treating the woman with injections to halt ovarian function, followed by about ten days of fertility drug injections to induce superovulation. There are sometimes very severe side effects, such as fluid retention, swelling of the ovaries and abdominal pain. More rarely there is formation of blood clots, kidney failure, fluid buildup in the lungs and shock, which very rarely create a life-threatening situation. The ova are generally harvested through a needle in a probe inserted vaginally and guided by ultrasound. A mild sedative is required. Some or all of the ova are combined with the husband’s or donor’s semen in a petri dish. A variation of IVF, called gamete intrafallopian transfer (GIFT) consists of the immediate injection of the ova into the fallopian tube after combination with semen without determining whether they have been successfully fertilized. Laparoscopy is employed in this procedure, usually requiring anesthesia. Another variation of IVF is the zygote intrafallopian transfer (ZIFT) in which the ova are checked to determine that they have been fertilized before implantation in the fallopian tube. Blastocyst transfer involves allowing the fertilized ova to develop for five days as opposed to the 48–72 hour fertilized ova normally transferred in IVF. There may be stimulation of the fertilized ova to initiate cell division before transfer to the woman’s fallopian tubes or uterus. Any procedure which involves genetic material remaining in the laboratory is susceptible to confusion of samples. Halakhic overseers are employed to prevent such potential confusion.
Sometimes the husband produces only a few viable sperm instead of the normal twenty million or so per ejaculation. Some poskim permit testicular sperm extraction through which a small amount of testicular tissue is surgically removed to harvest sperm found in it. If a man has undergone a vasectomy, surgery to attempt reversal of the procedure may be performed. If such surgery is unsuccessful, the following techniques which are less controversial because no testicular tissue is damaged or removed may be utilized: percutaneous, microepididymal or vasal sperm aspiration. Through the use of micro-techniques, a single sperm can actually be inserted into the ovum in a process called intracytoplasmic sperm injection (ICSI). The fertilized ovum is then injected in the fallopian tube or uterus. There has been some critique concerning ICSI usage because of the potential transmission of diseases including the tendency to infertility. Nonetheless this has become a commonplace procedure in Israel because it avoids the halakhic problems associated with AID and male infertility is on the rise. It should be noted that success rates for IVF procedures are less than thirty percent and decrease as maternal age increases.
Sperm banking in anticipation of radiation or surgically or chemically induced infertility has been forbidden by some poskim because it is considered by them to be seed wastage and the potential for confusion of samples in the laboratory exists. Surprisingly, some poskim have prohibited the practice even though it doomed a man who had not yet procreated to infertility. It should be noted that the mitzvah to procreate for the man does not obligate him to make use of new reproductive technology. His physical inability to procreate may have repercussions on his marriage but he is not therefore considered a sinner.
For some poskim, two new halakhic issues arise with the various IVF techniques. 1) Genetic screening of the fertilized ova before insertion into the uterus, aimed at preventing chromosomally or congenitally malformed pre-embryos from developing, is potentially problematic. Nearly all poskim, however, even those who forbid genetic testing via amniocentesis or chorionic villi testing, lest the parents opt to abort a congenitally malformed fetus, allow pre-embryo screening. It is well before there is even a “suspicion” of pregnancy (Mishnah Niddah 3:7). More importantly, as long as the pre-embryo is outside the woman’s body it has no fetal status. Several poskim even allow sex selection if it is done in order to avoid a sex-linked disease such as hemophilia (R. Auerbach). At least one rabbi has permitted sex selection to avoid the production of sons to a kohen so that the couple’s use of IVF which may not confer family status would not become public knowledge. This is a major reason why IVF has become so popular in Israel: it avoids all questions of bastardy because no semen is transferred and it allows genetic testing without dealing with the problem of abortion.
2) Generally three or more fertilized ova are inserted into the uterus. As even triplet pregnancies complicate the health/welfare of the developing fetuses and the mother, multifetal pregnancy reduction (MPR) is often employed in IVF multiple pregnancies. MPR, the removal of one or more of the embryos, maximizes the potential development of the remaining embryos and increases the protection of the woman from the risks of a multiple pregnancy. This procedure has generated a great deal of halakhic discussion as to its permissibility, since—according to some authorities—the procedure falls into the category of abortion. There are those who permit such a procedure when done at a very early stage of pregnancy using transvaginal aspiration, sometimes before there is a halakhic “suspicion” of pregnancy. To some extent this circumvents halakhically prohibited abortion issues. Medically, very early MPR does not allow time for the “vanishing twin” phenomenon in which one or more of the fetuses in a multiple pregnancy ceases to develop. As a result, all the fetuses may be lost. Some poskim redefine MPR to involve a fetal lifesaving process rather than a fetal reduction process. As all of the fetuses are considered pursuers (rodfim) of one another, no one has a preferred status halakhically and cannot be chosen to be saved. Based on the possibility that all the fetuses may be lost without MPR, some poskim allow the procedure. Others concentrate on the lifesaving aspects to the remaining fetuses without the assumption that all would be lost. Those who allow MPR leave the decision to the doctors as to which fetuses to remove. Physicians’ decisions are generally based on implantation locations and the relative size and development of the fetuses. If the mother is endangered, for example by gestational diabetes, premature delivery or eclampsia, all poskim allow MPR.
Because the woman’s task in pregnancy is two-fold, conception and gestation/birth, halakhic issues can arise at each stage. If the Jewish woman receives an ovum donation from a non-Jewish woman, does the gestation and birth convert the genetically non-Jewish fetus into a Jewish child? One Israeli rabbi suggested ignoring scientific knowledge and assumed that the Sages did not have an idea of female seed but rather held the Aristotelian position that women contributed the uterine environment only. As a result, non-Jewish ova donations would not be halakhically problematic because the Jewish uterine environment and parturition by a Jewish woman would confer Jewishness. (It should be noted that certain rabbinic sources provide strong evidence for a belief in female seed, as also seems to be the case in Leviticus 12:2, making this position questionable.) Some infertile couples prefer their children to be both genetically and gestationally Jewish. To that end, they advertise for Jewish women to donate ova, even specifying family characteristics such as height, build, coloring and IQ from the potential donor. Large sums are offered and the advertisements in America can be found in Ivy League and other East Coast university student newspapers. Most poskim have accepted gestation as sufficient to determine the Jewishness of the child. R. David Bleich and others suggested that halakhically there may be two mothers, the genetic mother and the gestational mother. This necessitates the conversion of the genetically Jewish child gestated and birthed by a non-Jewish woman. Moreover, if the surrogate mother were Jewish, incest prohibitions would go into effect with the relatives of both mothers.
Alternatively, if a Jewish woman donates her ova to a gentile woman, does her Jewishness inhere to her genetic material or are the gentile gestation and birth definitive? If Jewishness inheres to the genetic material, a Jewish ova donor to a gentile may be guilty of turning a Jewish child over to non-Jews. This, however, is a fairly uncommon scenario because of the complicated procedure and potential danger in ova donation. Sometimes ova, even fertilized ova, are preserved by freezing. A woman who has undergone successful IVF treatment and who has left-over ova or a woman who has decided not to carry on with IVF after ova harvest, may donate or sell the ova to other infertile women or to the clinic for experimentation. Thus this scenario is more likely than it may initially appear. Civil law in Israel requires the consent of both of the parents on the disposition of fertilized ova. In the event of a disagreement a court decision for “custody” of the ova is made. Some poskim require destruction of unused fertilized ova to prevent inadvertent incest. Others do not relate to ova as female seed and as a result, no maternity inheres in ova. While this use of contradictory sources concerning female seed alleviates potential problems, it ignores women’s proven genetic contribution to procreation.
There is significant halakhic concern for the fate of unused fertilized ova (and, of course, semen) lest there be seed wastage. Passive treatment of such material which allows it to “die” by itself as opposed to its active destruction is required. Ova which have not been transferred into the uterus after twelve to fourteen days from fertilization are no longer physically capable of implantation. Since these ova are already considered to be nonviable, halakhah is more lenient concerning their use in embryonic experimentation.
Halakhic authorities must decide whether to treat women as donors of Jewish genetic material (hence upholding a concept of female seed) or whether to determine Jewishness by gestation. Thus far, gestation has won the day.
Surrogacy is another new reproductive technology replete with halakhic problems. This is an area where all the problems in all the other technologies can come into play. Surrogacy is employed when the wife is unable or unwilling to carry a pregnancy. She may be able to donate ova fertilized through IVF by her husband to the surrogate mother, in which case she and her husband are the genetic parents. Alternatively, she may not have ova to donate, and the surrogate is impregnated through artificial insemination by the adoptive husband. In this case, the surrogate mother is the genetic and gestational mother, thereby having a larger “claim” on the child. The most complicated and least likely situation would be one where the ova were donated by another party, creating two adoptive parents (who have no genetic connection with the child), the surrogate who is the gestational but not the genetic mother and the ovum and sperm donors. Even in civil law it is obvious how complicated the situation can become. The main additional halakhic objections concern the obligation of the Jewish father to the child even if the surrogate changes her mind and demands custody. His legal rights to the child could be countered by the surrogate mother’s rights, particularly if she were also the genetic mother. It is particularly difficult if the gestational mother is not Jewish and decides to renege on the contract. Since 1996 surrogacy arrangements are legal in Israel. Great care is taken in drawing up surrogacy contracts but the claim of the surrogate mother, especially if she is also the genetic mother, is very strong halakhically and civilly.
Cloning remains illegal from a civil point of view but the halakhic problems of the procedure have already been discussed. Cloning is a process whereby the nucleus of an ovum is removed and replaced with a full complement of a single person’s DNA. It is then stimulated artificially to initiate cell duplication and transferred to the uterus. Some rabbis have welcomed this technique both for the chronically infertile and for its potential to produce organs, tissue and stem cells for therapeutic purposes. Among the halakhic problems involved in cloning are: determining genealogy; determining whether the mitochondrial DNA of the ovum have any influence on the character or development of the clone, thereby creating more than one mother; determining whether cloning constitutes procreation as opposed to replication of an existing individual; determining whether such a technique is permitted halakhically; determining the status of a clonee in terms of Jewishness, family status, inheritance and the possibility of exempting the “mother” from halizah.
New reproductive technology has solved the problem of infertility for many people. Nevertheless, there remains a great deal of halakhic dispute on many of the topics. Many of the halakhic decisions were made to maintain the most stringent practices of avoiding ejaculation in vain. As a result, unnecessary medical procedures are routinely performed on women, sometimes endangering them. These procedures (such as IVF) are constantly being reinforced because they avoid other controversial procedures such as genetic screening and abortion.
Kahn, Susan Martha. Reproducing
Jews: A Cultural Account of Assisted Conception in Israel. Durham,
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.
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
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.
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.