In-Vitro Fertilization (IVF),
Insemination and
Egg-Donation[1]
Rabbi Mordechai Halperin, M.D.
Apart from intense public
interest in the rapid developments of research and technology which have made
possible in-vitro fertilization (IVF) and ovum donation, these procedures pose
ethical, legal and halachic problems. Practical questions in these new fields
are being put to experts in Jewish law, who must find answers on the basis of
established halachic principles.
In this essay we shall look into some halachic
principles which respond to modern problems in general, and to IVF,
insemination and ovum donation in particular.
1. The “default”:
Prohibition or Permissibility?
2. Who decides?
3. Issues without clear
precedents.
1. The “default”: Prohibition or
Permissibility?
The Mishna[2] emphasizes that only prohibitive,
strict decisions require juridical substantiation while permissibility
or leniency needs no supportive precedent. The absence of a prohibitive
substantiation is to be equated with halachic permissibility.[3] This implies that any
technological innovation is permissible unless there is a halachic reason for
prohibiting it. If in the broad range of halachic sources no
reason is found for their prohibition, Jewish law permits the use of such
technologies.
We may therefore conclude: The
absence of a prohibitive substantiation is to be equated with halachic
permissibility.
2. Who Decides?
In order to be sure that there
is no halachic prohibition against a new procedure, an accepted halachic
authority must be con- sulted. Jewish law differentiates between the authority
to abrogate a temporary prohibition and the authority to determine permanent
permissibility. Faced with uncertainty or insufficient information, one is entitled
to be strict with oneself; no special authority is needed for prohibition by
the individual. On the other hand, in order to establish
permissibility, there must be unequivocal information.[4] When there is no clear
precedent in halacha to decide the issue at hand, one must be thoroughly versed
in all halachic sources before definitely confirming that no halachic reason
for prohibition exists.
We may therefore conclude: An accepted halachic authority
must be consulted.
3. Issues without Clear Precedents
Step I: An attempt is made to find related precedents in
halachic literature.
A possible result: no precedent.
Step II: Halachic study of conceptually connected rulings.
A possible result: differences of opinion among the
accepted authorities.
If there are no related precedents, halachic study is made of
conceptually connected rulings. In examining these, we attempt to infer the
reasons upon which they are based. If these reasons are confirmed, or at least
not contradicted, by other halachic sources, they could be accepted for drawing
conclusions regarding new issues under consideration. Because of the vast range
of halachic material, there often arises differences of opinion among the
accepted authorities, though these differences are usually of short duration.
Consensus is finally achieved and an unequivocal decision is reached.
Step III: Using special halachic rulings for controversial
issues.
There are well-known halachic
rules for deciding controversial issues. If, for example, there is a doubt in a
matter prohibited by the Torah (ăŕĺřééúŕ – D’orayta),
the ruling is prohibitive; if the doubt is related to a rabbinical ruling (ăřáđď – D’rabbanan), the decision
is usually permissive.[5]
There are three basic principles which, with certain restric- tions,
favor the permissibility of fertility-increasing manipulation:
1. The
commandment “Be fruitful and multiply.”
2. The
mitzvah of loving kindness (âîéěĺú çńăéí –
G’miluth hassadim).
3.
Family integrity
1. The
Commandment “Be fruitful and multiply” (ôřĺ
ĺřáĺ – P’ru urvu)
This commandment, the first in
the Torah, is based on the verse: “Be fruitful and multiply and replenish the
earth.”[6] In halachic literature the
fulfillment of the command is considered of greatest importance[7] because the fulfillment of
all other command- ments depends on it. One of the reasons behind it is “God’s
will that the world be populated,” as Isaiah said: “He did not create it as a
waste, but formed it for habitation.”[8]
Despite the importance of this
commandment, halacha does not permit indiscriminate multiplication of
genetic offspring to enhance the biological efficiency of natural increase. On
the contrary, a system of laws and marital restrictions (laws of incest)[9] limiting sexual activity to a
closed family framework emphasizes not only the dissemination of biological
genes, but also the equally important transmission of cultural and moral
traditions[10]
from generation to generation.[11]
Thus any increase in fertility
is evaluated not only by its capacity to increase the number of offspring, but
also by the effect it may have on the continued existence and adequate
functioning of the family nucleus that hands down cultural content to following
generations.
2. The Commandment of Charity (G’milut hasadim)
In the cases of personal
suffering we are duty bound to practice the mitzvah of G’milut
hasadim which originates in the verse “Love thy neighbor as thyself.”[12] Accordingly, one must use
one’s possessions,[13] physical strength[14] and talents[15] in order to lessen the
suffering of one’s fellow man.
Obviously, a childless couple
is within this category and there exists a clear obligation to assist them in
every permissible way, as long as no one else is thereby harmed.[16] Therefore, if manipulation
of fertility brings into the world offspring which may be legally or otherwise
seriously handicapped, such foreseeable harm and suffering of the progeny
stands in contradiction to the G’milut hasadim that may be relevant to
the parents.
3. Family Integrity
Domestic peace and the
integrity of the family are extremely important in Jewish law. In order to
restore good relations and mutual trust in the event of serious marital
difficulties, the Torah sometimes permits the actual erasure of the holy name
of God.[17]
This may tip the scales in
favor of leniency[18] when there is halachic
uncertainty constituting a real obstacle to permissibility. [19]
In the light of the three principles elaborated in the previous section
we shall examine halachic attitudes towards:
1. IVF as a
solution to the problem of infertility in lawfully wedded couples.
2. IVF
with sperm donated by a third party to a married woman. (IVF-Ds)
3. IVF with an oocyte donated from a third party
donor (IVF-Do).
1. IVF for Lawfully Wedded Couples
Jewish law deals with both the
permissibility of the procedure itself and the legal status of the IVF
offspring. Although these are separate issues, there is a close connection
between the legal status of the offspring and the attitude towards the procedure
as such. Artificial insemination using the husband’s semen (AIH), an issue
which has been dealt with at length in recent responsa literature,[20] is also relevant to this
discussion.
Is a child born as a result of
technical manipulation (without normal sexual relations) recognized by Jewish
law as the child of his biological parents? This question is important in many
legal systems, because genetic kinship and legal kinship do not always
correspond.
Although experts in Jewish law
are divided in their attitude toward the paternity of offspring resulting from
AIH, the majority would concede legal paternity to the biological father.[21]
Nevertheless, even among those
who recognize the paternity of AIH offspring, there are some who reject this
legal relationship in the case of an IVF offspring.[22] The lack of recognized
paternity not only affects laws of inheritance, lineage, and support, but also
bears directly on the genetic father’s fulfilling the commandment to be
“fruitful and multiply.” Noncompliance with this command- ment nullifies one of the
important principles which favor IVF. For this reason Rabbi E. Waldenberg
totally forbids IVF, though he approves AIH under certain conditions.
On the other hand, Rabbi
Ovadiah Yosef, as well as the majority of Jewish experts, do permit IVF when
there is no other way of fulfilling the commandment to be “fruitful and
multiply.”[23]
The late Rabbi Shlomo Goren agrees with this statement in an unpublished letter[24] as well as in a published
essay[25], and Rabbi Avigdor Nebenzahl
is of a similar opinion. Domestic happiness and integrity of the family were
weighty factors in favor of this procedure.
Even those who sanction IVF-H
(husband) stress the problem of the trustworthiness of the medical
establishment. Basing themselves on their own experience, some claim that the
medical establishment is not to be trusted, and that the more IVF-H is
performed, the greater the likelihood of IVF-D (foreign donor), as was the case
in artificial insemination, which began as AIH and led to AID. One of the most
outspoken authorities on this subject is Rabbi Eliezer Yehuda Waldenberg[26] who is today held to be one
of the leading halachic experts on issues of modern medicine.
2. IVF using Sperm Donor (IVF-Ds)
In recent years many lengthy
discussions have been devoted to the ethical and legal aspects related to AID
for childless couples. The discussions focus on two issues:
I. Is AID halachically permissible, or is it
adultery?
II. What is the status of AID offspring?
All halachic experts agree that
artificial insemination using the semen of a Jewish donor (other than the
woman’s husband) is for- bidden; it is only the severity of the prohibition
which is debated. Some hold that AID constitutes adultery and is thus strictly
forbidden by the Torah.[27] Most experts, however, hold
that the prohibition is based primarily on legal ramifications relating to the
birth of an AID offspring, when the genetic father is unknown.
Some authorities would permit
AID if the donor is not anony- mous or where he is a gentile, thereby
eliminating some of the most important legal complications concerning the
personal status of the offspring.[28],[29]
The personal status of the AID
offspring presents a serious problem, even for the majority who hold that AID
does not constitute adultery and that the debatable issue is whether the AID
offspring is a mamzer (îîćř)
according to the criteria of Jewish law.
Jewish law severely restricts
the prospects of marriage of a mamzer.[30] This is a serious functional
handicap from social and judicial points of view. At the root of this debate is
the determin- ation of which of the following two factors created the mamzer
status referred to in the Torah:[31]
1. The
act of prohibited intercourse that leads to the birth of the child.[32]
2. The birth
of a child sired by a genetic father who is other than the mother’s husband,[33] so that the child is a
product of a prohibited[34] genetic union.
According to the first
proposition, the AID offspring is not a mamzer if there was no act of prohibited
intercourse, while on the basis of the second proposition the AID offspring
is a mamzer. This halachic dispute creates a situation of “doubtful mamzer.”[35] Hence the accepted halachic
prohibition of AID in Israel.
Compared with the complex legal
status of AID offspring, the IVF offspring is in a better position. The reason
for this is the clear distinction between donor sperm being injected
into the uterus and an embryo being implanted there (IVF-D). Some
halachists hold that AID is included in the prohibition “Thou shalt not lie
carnally with thy neighbor’s wife to defile thyself with her.”[36] However, IVF-D involves the
implantation of an embryo, which is nowhere cited as forbidden. But there are
still two questions which must be answered:
1. Is
fertilization by the semen of a third-party donor permitted?
2. What
is the personal status of the IVF-D offspring?
Although it is difficult to
equate test-tube fertilization with an act of adultery (even if this involves
IVF-D), there may still be legal prohibition against in-vitro fertilization of
the oocyte of a married woman with a third-party’s sperm.[37] This
implies that even if it be forbidden to perform IVF-D on an oocyte of a married
woman, the same prohibition would not affect an unmarried woman.
Once fertilization has taken
place, there is no reason not to implant the embryo, as long as the possibility
of mamzer status in excluded. Obviously, if the offspring would be a mamzer
(e.g. if the oocyte were fertilized by sperm of an incestuous relative), it
would be morally and legally unjustifiable to perform IVF-D, as the embryo
carried in the womb for nine months would be born an unfortunate creature.
Halacha so far has not reached
definitive conclusions on these fundamental issues. Arguments can be found for
both sides, so that for the time being they still remain open question.
3. IVF with Ovum Donation (IVF-Do)
There is a fundamental
distinction between paternity and mat- ernity. While paternity is based on the
genetic and only on the genetic function, maternity normally has two
functions:
I. A genetic function – ovulating the oocyte.
II. A physiologic function – nine months of
pregnancy and the parturition.
The new technology of IVF and
ovum donation or surrogacy, made it possible to break up and to divide these
two functions between two women.
The donation of an oocyte
raises two problems:
I. The fundamental problem is that of establishing
who, according to halacha, is the mother. Is it the genetic mother or the
nutritional physiological (surrogate) mother? Or, perhaps, there is no legal
mother in such cases. Or, perhaps, both are considered to be legal mothers.
(The possibility of two legal mothers for one child need not be related to the
halachic rules of IVF-Do. There can even be two genetic mothers if two
fertilized oocytes of two different women are joined, and the resulting chimera
combines the genetic components of both.)
II. If the donor is a married woman (which is more
practical for the gynecologist, because when a married woman is treated with
drugs to stimulate ovulation preceding IVF-H, there is usually a surplus of
oocytes available for fertilization, without the need for further operative
procedure), is it permitted to fertilize her oocyte with sperm other
than that of her husband, as discussed in the previous chapter?
The Babylonian Talmud[38] discussed the firstborn of a
kosher animal: “Two wombs were combined and [the embryo] left one and entered
another.” The question whether the offspring is consid- ered the firstborn only
of its genetic mother, or whether it is also considered the firstborn of the
host mother, remains unsolved in the Talmud. This might mean that the genetic
mother is surely to be considered the legal mother and that the Talmud
expresses doubt only concerning the status of the host mother. On the other
hand, the talmudic discussion could be dealing with a specific issue of bechorot
(firstborn) without relation to the issue of motherhood that concerns us
here.
Among present day halachists,
too, there is a bitter contro- versy. Some tends to regard the genetic mother
as the only legal mother for all intents and purposes, but most Jewish scholars
tend to accept the physiologic mother as the only legal mother.[39] This creates serious
problems, especially if the genetic mother and host mother are of different
religions. Since halacha must prohibit IVF-Do in cases of doubt, no oocyte may
be donated when the physiologic and genetic mothers belong to different
religions,[40]
even if the oocyte donor is an unmarried woman.
A detailed discussion of the
outcome of IVF-Do by a donor of another religion would require the analysis of
talmudic texts beyond the scope of this article.
Jewish law contains much material directly related to the
newer gynecologic technologies of AIH, AID, IVF-H, IVF-Ds, and IVF-Do. Some of
these issues are still being debated by various halachic experts.
Mutual trust between
gynecologists and halachic experts is of utmost importance in order to carry
out procedures which are permissible to the religious. Mistrust not only
impedes the research but may even result in demands for major
histocompatibility complex (HLA)
tests to ascertain paternity prior to sanctioning marriage. The halachic
validity of this test is dealt with elsewhere.[41],[42]
Source: ASSIA – Jewish Medical Ethics,
Vol. I, No. 1, May 1988, pp. 25-30
1. Presented at the International Congress on Medicine Ethics & Jewish
Law, Copenhagen Denmark, January 1996.
10. Genesis 18:19,
Deuteronomy 6:7. 11:19. This principle is repeated many times in
biblical and halachic literature.
20. A.
Steinberg, “Artificial Insemination in the Light of Halacha” Sefer Assia
1 (Jerusalem: Schlesinger Institute, 1982), pp. 128-141.
22. Rabbi E.
Waldenberg, “In-Vitro Fertilization: a Medical-Halachic Discussion,” Assia
33 (1982), pp. 5-13.
23. Unpublished
responsum. Parts of this responsum are cited in M. Drori, “Genetic Engineering
– Preliminary Discussion of Its Legal and Halachic Aspects,” Techumim 1
(1980), p. 287; the halachic conclusion was published in Abraham S. Abraham, Lev
Avraham 1 3rd ed. (Jerusalem, 1977), chapter 30, section C, note 8.
24. Rabbi Shlomo
Goren, in an unpublished response to S. Mashiah dated 10th November 1982.25. Ha-Tsofe,
Adar A 14, 1984.
27. Rabbi Y. L.
Zirelson, Responsa Ma’arche Lev, Even Ha’ezer 73 (Kishinev,
1932), p. 138. Further sources in Steinberg (cf. note 21 above), note 39 and Tzitz
Eli’ezer 13:97.
34. According to
the Talmud the Hebrew term mamzer (bastard) is derived from two words:
mum (defect) and zar (foreign) (cf. Yevamot 76b).
37. M. Drori,
“Artificial Insemination and the Law of Adultery: Halachic Viewpoints,” Torah
u-Madda 10 (1984), pp. 28-36, note 50.
39. Rabbi E.
Waldenberg, Tzitz Eli’ezer, 20, 49; R. Y. Sh. Elyashiv, in Nishmat
Avraham 4, (Even Haezer), 2, 2; R. Z. N. Goldberg, “Fetal Implant,” Techumim
5 (1984), pp. 248-259; 269-274; R. A. Kilav, “Test-tube Babies,” ibid.
pp. 260-267; R. Y. M. Ben-Meir, “In-Vitro Fertilization: the Legal
Relationships of the Embryo and the Surrogate Mother,” Assia 41 (1986),
pp.25-40.
41. D. Frimer,
“Establishing Paternity by Means of Blood Type Testing in Jewish Law and
Israeli Legislation,” Sefer Assia 5 (1986), pp. 209-185; M. Halperin, C.
Brautbar and D. Nelken, “The Basis for Halachic Discussion on Determination of
Paternity by means of MHC (HLA),” Torah u-Madda 10 (1984), pp. 6-27.