Assisted Reproduction and Judaism
by Miryam Z. Wahrman, Ph.D.
"Be fruitful and multiply, fill the earth and subdue It" - Genesis 1:28
Nowadays most rabbis agree that the commandment to populate the world is so important that many modern technological developments for assisting infertile couples may be permitted by Jewish law. They say that in case natural reproduction does not succeed, it gives a tacit approval for assisted reproduction.
The implied flexibility of the Torah regarding assisted reproduction should not surprise us. After all, three out of four biblical matriarchs suffered from infertility. The Torah documents in Genesis the suffering of Sarah, Rebecca and Rachel due to infertility. The narrative provides much of the human drama in the relationships between the matriarchs and their husbands, and the matriarchs and God. The three matriarchs dealt in different ways with their tragic circumstances.
Sarah bitterly resigned herself to not having children, and even laughed a cynical laugh when presented with the possibility of conception at an advanced age. Rebecca was more positive. She asked Isaac to intervene on her behalf and Isaac's prayers were answered. Rachel, used desperate measures. She declared to Jacob: "Give me children, otherwise I am dead." The commentator Rashi explains that this statement signifies that a childless person is accounted as dead.
Rachel's next act was even more desperate. Reuven, the firstborn son of Leah, returned from the field with some plants called "dudaim" (Genesis 30:14). The biblical commentator Nachmanides suggested that these plants were herbs which promoted conception. Reuven presented them to his mother for her use. Rachel observed this and begged her sister for the plants. Then she made a deal: in return for the dudaim she would allow Leah to spend one night with Jacob. Ironically, Leah's fifth son was born as a result of this deal. And because of Rachel's desperation this "assisted reproduction" achieved its goal for her as well. Rachel was finally "remembered" by God, and she conceived and bore Joseph. She then states: "God has taken away my disgrace".
Yesterday and Today
Infertility was not only a painful and tragic experience for the Matriarchs. It continues to afflict many Jewish couples. The biblical notion of infertility was that it was due to the female. Surprisingly, the cause of infertility among Orthodox Jewish couples today is predominantly due to male factors. Dr. Vincent Brandeis, who runs fertility centers in New York State (U.S.A.), has estimated that in 60% of Orthodox patients infertility is due to problems with sperm quality. This compares with close to 50% male factor infertility in the general population. The reason for this difference may have to do with the low incidence of pelvic inflammatory disease among Orthodox women who are generally sexually inactive before marriage. Pelvic inflammatory disease increases the rate of female infertility in the general population so that it slightly exceeds male infertility.
Talmudic ideas of reproduction in many ways reflect the notions of those times. "Our Rabbis taught: There are three partners in man: The Holy One, blessed be he, the father and the mother. The father supplies the semen , the white substance, out of which are formed the child's bones, the sinews, the nails, the brain and the white of the eye. The mother supplies semen, the red substance, out of which are formed the skin, flesh, hair, blood and the black of the eye. God provides the spirit, the soul, the beauty of the features, eyesight, the power of hearing, ability to speak and walk, understanding and intelligence." (Talmud, Tractate Nidda, 30a).
Although the Talmud was unable to explain the scientific mechanisms of inheritance of traits, it was enlightened in assigning a role to the female "semen". Many scholars of that time believed that the female simply provided an incubator for the male seed to grow into a child. Even the Torah recognized the presence of a female seed with the passage: "If a woman emits a seed" (Leviticus 12:2).
Modern Concepts and Practice
Today, of course, we know of the genetic mechanisms of inheritance. There are many thousands of genes inherited by a child which control the physical attributes of the child. For most traits a child inherits two copies of each gene, one from the mother and one from the father. The individual copies of each gene can interact with each other. A copy from one parent may be dominant over the other, and be preferentially expressed in the child. Or the two copies may work together to produce a combination or blended trait.
Assisted reproductive technology which is available today enables many infertile couples to fulfill the biblical commandment to "be fruitful and multiply". Technological advances have led to the development of In Vitro Fertilization, where the sperm from the father and the egg from the mother are mixed together in a petri dish in the laboratory, and the sperm is allowed to fertilize the egg, producing a "test-tube baby." The fertilized egg is then returned to the biological mother's womb where it develops, and nine months later the baby is born. In IVF conception takes place outside of the body. This technique overcomes the problem of scarred, damaged or blocked fallopian tubes (which prevent the sperm from reaching the eggs, and the eggs from reaching the uterus). It also allows men with low sperm counts to conceive, as sperm samples can be concentrated and deposited adjacent to the ripe eggs. Only small numbers of viable sperm are needed for successful fertilization in a petri dish.
A variation on this theme is Intra-Cytoplasmic Sperm Injection, or ICSI. With this technique a man who produces no sperm in his ejaculate can become a father. Pieces of tissue from the testicle can be used. Only a few sperm cells need to be isolated from the testis, and those cells can be mechanically injected, one by one, into individual eggs. Another variation involves a process called Assisted Hatching. In Assisted Hatching a small opening is made in the clear zone, or "shell" around the egg. The process is done to allow the fertilized egg to emerge properly, as this can assist it to implant into the lining of the uterus.
Implications In Jewish Law
How "Kosher" are these techniques in terms of Jewish law (halacha)? It is generally agreed by rabbinic authorities that IVF and related techniques are acceptable for Jewish couples when the husband's sperm and the wife's eggs are used. In husband/wife IVF the problems which need to be addressed include the following:
(1) There is some controversy regarding how semen may be procured for the procedure. Since there is a biblical admonition regarding the "spilling of seed", some rabbis insist that the husband may not ejaculate to provide a specimen. However, since the intention of the procedure is specifically to enhance procreation and the semen is not being wasted, ejaculation to produce the semen may indeed be permissible.
(2) When more than one fertilized egg is implanted into the woman, this may result in a multiple pregnancy. When there are three or more fetuses growing in the womb, this results in a high risk pregnancy, and fetal reduction, or selectively eliminating one or more of the fetuses, may be recommended. Is this halachically permissible? Ending the life of a fetus is not considered murder by halachic definition, but it is not permissible either. This would only be permitted if the doctor has determined that some fetuses must be eliminated or they will all die. Even then, the decision is a very sensitive one and must be made by the doctor.
(3) When IVF is performed the woman is stimulated by hormone treatment so her ovaries can produce up to 20 eggs per cycle. The eggs are harvested and fertilized, but only three or four can be used in that cycle. The rest can be preserved by freezing. How does Jewish law address the issue of extra embryos? The fate of extra embryos could include: (A) Use of them by the original couple to establish future pregnancies (rabbis affirm this use). (B) Destruction of the extra embryos (permissible halachically if this is done passively, by letting them thaw out and die on their own). (C) The use of these extra embryos for research. Since this is an active process and results, ultimately, in their destruction, this is not generally acceptable by Orthodox rabbis. (D) Donation of the extra embryos to another infertile couple. This option is not approved by many Orthodox rabbis because the "adopted" child may inadvertently marry his/her genetic sibling, resulting in incest.
(4) Although most IVF labs are reputable and try to be meticulous in keeping track of the sperm, eggs and embryos of each couple, over the years some mistakes have been made. Even worse than inadvertent errors, are the cases of deliberate tampering with sperm, eggs and embryos which have been discovered in unscrupulous fertility labs! Since parentage is of vital concern, some Orthodox rabbis would like to see trained supervisors present during IVF of Jewish couples. One such arrangement has been made between the Star-K Kosher Certification and a New York clinic. The supervisors will reportedly be present during the entire procedure to ensure that halachic protocol is followed, and that meticulous attention to the accuracy in the process is maintained.
Donor Sperm and Eggs
The issues involved in using donor sperm or eggs can create halachic problems. Artificial insemination has been performed for many years, and the question of the halachic validity of this procedure has been discussed by many sources. It is clear that more rabbinical authorities approve of artificial insemination if the husband's sperm is used (as long as it is not wasted in the process; there are special devices recommended by rabbis for collecting the sperm in as natural a way as possible). However, the idea of using donor sperm has not been accepted by many rabbis. While the use of donor sperm is not considered adultery per se (since sexual relations are not involved), it is still considered an abomination by many, and is strongly discouraged. Rabbinic sources generally agree that paternity is determined by who provides the sperm, so that a baby conceived from donor sperm would not, halachically, be considered the child of the infertile husband.
When an egg donor provides an egg for an infertile couple, the recipient, usually a sterile woman who cannot produce eggs, serves as the gestational and birth mother and she gives birth to and raises the baby as her own. In this case there are two categories of motherhood: a genetic mother, and a gestational/birth mother. These -- now separate -- functions can be performed by two different people, who may or may not be related to each other and may or may not have any connection with each other (other than their individual contributions to producing and raising the child).
There are rabbinical authorities who reject outright the idea of using donor eggs. Others believe that a woman may receive donor eggs as long as her husband has consented. The question of who is the mother is extremely complicated to answer. This is certainly a critical question as it impacts on the status and identity of the baby. According to traditional Judaism, the status of "who is a Jew" is determined by whether or not the mother is Jewish. In the case where the genetic mother and the gestational mother are the same person, then the issue is clear. What happens when the genetic mother is a different person from the gestational mother? Which mother is considered the mother for the halachic decision on religious status? If the genetic mother is not Jewish and the gestational mother is, what is the status of that infant? Rabbi Moshe Heinemann, Rabbinic administrator of Star-K Kosher Certification states unequivocally that if the egg is from a Nonjewish woman, then the baby is not Jewish. In this very stringent ruling, when a donor egg is used, the birth mother is not considered the halachic mother.
Other rabbinic authorities have also addressed this question and have concluded that there is halachic uncertainty regarding who is the mother. Rabbi Moshe Tendler writes: "the contributions of the gestational mother are quite consequential" (Pardes Rimonim, 1988). In fact, many halachic authorities regard the birth mother, rather than the egg donor, as having maternal status. The halacha on many issues relies on what can be readily observed with the naked eye. For instance, microscopic or small amounts of nonkosher contaminants in kosher foods, do not necessarily render the food nonkosher. Thus, the decision on maternity may be based on which mother gives birth (an action which is incontrovertible, and readily proven), rather than which mother provided the egg (a microscopic contribution, albeit a critical one) . On the other hand, considering the important role Yichus, or inherited status, plays in some Jewish circles, genetic status could be of paramount importance, and perhaps the mother who provided the egg should determine Jewish status.
Men and Women Must Procreate
The biblical commandment to have children is the first commandment given to Adam after he was created. A similar directive is given in Isaiah 45:18, which reads: "He did not create the world to be desolate, but rather inhabited." Since Adam was specifically charged with "Be fruitful and multiply" that positive commandment has been interpreted as an obligation on the part of the man to reproduce. The quote from Isaiah, commentators have explained, pertains both to men and women: thus women are included in the obligation to fill the world.
It is clear that the scriptures have directed Jews to procreate, and this directive is so critical that torah scholars agree it could be accomplished by natural or artificial means. The challenge of assisted reproductive technologies will be to sort out the complex relationships created by artificial reproductive processes, and to determine where to draw the line in terms of what techniques are ethical and permissible, which advances are questionable, and which are unacceptable.
Dr. Miryam Z. Wahrman is a Professor of Biology at William Paterson College in Wayne, New Jersey. She set up and ran the first In Vitro Fertilization laboratory in New York City.
Source: JCN, reprinted by permission of the author.