The Instruction had rejected the use of artificial fertilization to overcome an infertility problem even if the husband's sperm is used to fertilize the wife's ovum. It argued that
[s]uch fertilization is in itself illicit and in opposition to the dignity of procreation and the conjugal union, even when everything is done to avoid the death of the human embryo.... In this case the medical act is not, as it should be, at the service of the conjugal union, but rather appropriates to itself the procreative function and thus contradicts the dignity and inalienable rights of the spouses and of the child to be born.(However, McCarthy3,4 has argued that it a "solidly probable opinion in Catholic moral theology" that under certain conditions artificial insemination with the husband's sperm might nevertheless be allowed.)
The Ethics Committee rebuffed the Instruction's general conclusion because it saw such interventions
"not as a replacement of sexual intimacy, but as its logical and technical extension.... The Committee believes that the Instruction, in its laudable effort to avoid mechanizing marriage and procreation, has too easily accepted natural procedures as morally normative."But despite the fact that the Ethics Committee unanimously rejected both the Instruction's general disapproval and the majority of its specific objections, it recorded a dissent on the involvement of third party donors which came close to the Instruction's condemnation of heterologous (donor) artificial fertilization.
Five major objections were noted:
(1) The procedure severs procreation from the martial union, violating the exclusive nature of the marriage covenant.
(2) It brings into the world a child with no bond of origin and therefore blurs the child's genealogy and potentially compromises the child's self-identity.
(3) It encourages adultery by creating an environment wherein insemination of a wife by the sperm of another man is considered morally acceptable.
(4) It marks a subtle but unmistakable move toward eugenics.
(5) It tends to absolutize sterility as a disvalue and childbearing as a value, thus distorting and threatening the value of marriage and family.
There is a misperception among some professionals involved in assisted reproduction that all conservative religious systems have identical attitudes on these matters. Thus Mahlstedt and Greenfeld5 reported to the medical community that people considering donor conception -
"are familiar with the Papal Doctrine which prohibits all noncoital means of conception and with the teachings of Orthodox [Halakhic] Judaism which oppose donor conception as evil without reservation."We report here on the position of Halakhah (traditional rabbinic Jewish law and ethics) on the various concerns that relate to heterologous artificial fertilization. Professionals in the field of assisted reproduction are sometimes frustrated when patients who sincerely long for a child decline a commonly accepted medical technique because it conflicts with their religious beliefs. These religious commitments are often at the core of the individuals' life and cannot cavalierly be put aside even to effect a longed-for pregnancy. While professionals cannot in good conscience suggest that their patients simply reject religious values in favor of those accepted by the more general community, they should be aware that often the religious tradition allows for greater elasticity than the patient might imagine.
Reproductive technology raises fundamental questions about the nature of human relationships and what limits, if any, should be placed on human procreation. Physicians, especially obstetricians and gynecologists, must define where they stand personally and professionally on these issues.Like Roman Catholicism, Halakhic Judaism looks to its religious sources rather than public consensus in developing its moral positions. The basic sources for the investigation of the traditional Jewish position on any ethical or legal issue are the Bible, the Mishna and Talmud, and universally accepted codifications such as Maimonides' Mishneh Torah or the later Shulhan Arukh. Many of the issues associated with artificial reproduction have been discussed from Talmudic through contemporary sources, and Steinberg7 and Avraham8,9 have summarized much of the traditional sources. Unlike Catholicism, however, rulings on current issues cannot be promulgated by any central authority, as there is no formal hierarchal structure to the various rabbinic authorities and courts currently functioning. Positions on prevailing issues are developed by circulation of responsa (rabbinic rulings) to questions posed to various rabbinic authorities. Collegial review and community acceptance eventually allow for specific opinions to emerge as dominant. Yet, even when one view surfaces as authoritative, individual rabbis or layman will often defer to their local authority, whose position is considered decisive.
"Men and women of full age, without any limitation due to race, nationality and religion, have the right to marry and form a family."The vocabulary of halakha tends to speak not in terms of "rights," but rather of actions which are obligatory, permitted or forbidden. The Ethics Committee posits that while:
"the moral right to freedom in reproductive decisions may be limited, ... the legal liberty right is virtually unlimited in current United States constitutional law."Halakhah does not recognize this strict separation of moral and legal rights.
Indeed, even in secular society, moral judgments, however formed, clearly influence legislation. It is not at all clear that unlimited legal freedom would be granted if it sanctioned something which violated basic moral community standards. For example, it is doubtful if the courts would at this time strike down a statute prohibiting the incestuous marriage of either two siblings or a parent and child. Nor is it clear that the state could be compelled to recognize the legitimacy of adulterous relationships, the consent of the participating adults notwithstanding.
It further noted that thirty-one states have adopted statutes that provide that the offspring of AID is the legal child of the sperm recipient and her consenting husband, and that eighteen of the states explicitly provide that the man who donates sperm to a woman who is not his wife is not the legal father of the child. Even in states without such statutes, the sperm recipient's husband will be presumed under the law to be the legal father; however, the legal assumption will not be operative if it can be shown that the husband was incapable of fathering a child, or if human leukocyte antigen typing were introduced to establish paternity.
In Roman Catholic law, the genetic parent remains the only parent -
...regardless of civil law granting legal fatherhood to the non-genetic father.... This is a question of nature, not nurture; genetic rather than gestational generation. Thus, if known, the Church would not (because she can not) solemnize the marriage of children born to different families but of a common genetic father or a common genetic mother. Regardless of relevant or parallel civil law determinations, any marriage attempted in any degree of consanguinity or in the collateral line to the second degree is contrary to divine law and therefore invalid.10Halakhah, too, knows of no legal procedure by which a genetically unrelated person can be considered the full legal father of a child. The sperm recipient's husband, by virtue of his consent to the donation, might have assumed those legal obligations to support and educate the child that usually evolve only on the natural parent. However, when the husband dies, he is assumed to be halakhically childless with regard to inheritance and other religious issues. Couples sensitive to halakhic values should be made aware of this in the physician's counselling session.
Halakhah does recognize paradigms in which the genetic reality is considered irrelevant. For example, halakhah rules that conversion involves such a personal transformation that all previous genetic bonds are severed and, therefore, a brother and sister who convert to Judaism could theoretically marry each other, as their sibling relationship no longer exists. (This was forbidden rabbinically as it violated the sense of public propriety.)
Bleich11 recently summarized the halakhic discussion as it relates to artificial reproduction. Some halakhists maintain that it is the physical acts of intercourse and birth that establish the legal bonds of parenthood, and therefore the genetic father of a child conceived through artificial insemination has no legal relationship to the child, even if he is the legal husband of the mother. However, the majority consensus is that whether fertilization is achieved through artificial insemination or in vitro fertilization, the genetic father maintains the same relationship to the child as if the insemination had been accomplished through natural intercourse.
The issue is more complicated with regard to egg donation. Bleich concludes that while there is general agreement that the birth mother is to be regarded as halakhic mother, one cannot yet dismiss the possibility that the genetic mother might also have to be considered the mother (thereby giving the child two halakhic mothers). If the donor and birth mother are not of the same religion, there is debate on the religious identity of the child. (The religion of the father is immaterial, as halakhic religious identity is determined only by the mother.)
The Ethics Committee report noted that under American law the legal assumption is that the woman who gives birth is the legal mother. However, in the case of the first child born to a surrogate gestational mother, a court granted the genetic parents the right to have their names put on the birth certificate and to be recognized as the legal parents.
Because halakhah places great emphasis on establishing paternity, it requires that a divorced or widowed woman wait three months before remarrying (so that the father of a future child not be in doubt). Such a period of sexual abstinence, before and after the insemination, might be required for a couple undergoing donor insemination, especially if a testicular biopsy showed that a husband with zero sperm count had some sperm.
Jewish law posits a dual legal structure. It asserts a universal human morality, which it sees as binding on all people, and a specifically Jewish system, which is generally more stringent but which is applicable only to Jews. A sexual relationship between paternal half-siblings all of whose parents are Jewish is considered halakhically incestuous. However, in contrast to most contemporary secular societies, halakhah sees no incestuous relationship between half-siblings who have a common non-Jewish father (irrespective of the religion of the mothers). On the other hand, a relationship between half-siblings who have a common mother (Jewish or not) would be incestuous irrespective of the religion of the fathers.
In the United States, where the overwhelming majority of sperm donors is not Jewish, halakhah has no real fear of possible future incestuous marriages among the non-Jewish population. Even under the Church's definition, the relatively large donor pool renders statistically insignificant the probability of such an incestuous marriage occurring. Still, sensitivity to this issue would suggest that physicians should vary the sperm banks from which they order anonymous sperm, and consideration should be given to limiting the number of donations an individual could make to any single sperm bank.
In treating a Jewish couple who is sensitive to halakhic concerns, the physician should note in his or her counselling session that, halakhicly, it is preferable to choose a non-Jew as the sperm donor. The child is fully Jewish (because the mother is), the child has no halakhic relationship to the donor, and there is no danger of possible future incest.
All halakhists prohibit a Jewish man from donating sperm to inseminate a woman other than his wife. There is a general reluctance to allow egg donation based on the unsettled questions of religion and maternity (including the problem of future incest), the prohibition for the husband to masterbate to provide semen, and the pervading distaste for violating the exclusive nature of the marriage relationship.
"the egg must come from the wife's own ovaries, and that the sperm must be the husband's own; for a donor, whether male or female, would constitute the intrusion of a third party into the marriage tantamount to adultery."12With regard to AID, there is some indication that this perception is maintained even by many of those couples who have opted for the procedure. For example, Klock and Maier13 reported that while 69% of the surveyed couples who had undergone AID expressed no preference about the gender of the person performing the insemination, of those with a preference, all 31% preferred a female inseminator. One of the explanations they offer for this phenomenon is that "both men and women may prefer a female doing the insemination to decrease the connotations of another man and adultery."
The two ends of the halakhic spectrum regarding adultery as a component of AID are defined by the respective opinions of Rabbis Joel Teitelbaum14 and Moshe Feinstein,15,16 two late leading American halakhists. Teitelbaum argues that the halakhic definition of adultery is the deliberate introduction of a third party's semen into the vaginal tract of a married women. He therefore condemns heterologous insemination as morally repugnant and concludes that a wife who undergoes such a procedure is an adulteress. The concurrence of the husband is no more relevant than it would be in the case of sexual relations between a married woman and a man not her husband. Teitelbaum also insists that the medical professionals involved are moral agents, not mere technicians. Following through on the logic of his definition, he argues that the person who mechanically introduces the semen is also guilty of adultery. (Interestingly, under this rubric, one might argue that in vitro fertilization could escape any censure of adultery, as it is a human embryo and not a man's semen which is being introduced.)
Teitelbaum's position is summarily rejected by Feinstein. Rabbinic authorities cite two classic sources in refuting the charge of adultery. The first is the case of Ben Sira, the grandson of Jeremiah the Prophet, whose daughter, according to tradition, was impregnated by her father's semen while bathing in a pool into which her father had previously ejaculated. Ben Sira is considered legitimate. The second is a ruling by the medievalist Rabbi Peretz ben Elijah of Corbeil which sets out what has become the dominant current rabbinic view:
A woman may lie on her husband's sheets but should be careful not to lie on sheets upon which another man slept lest she become impregnated from his sperm.... Since there is no forbidden intercourse, the child is completely legitimate even from the sperm of another... However, we are concerned about the sperm of another man because the child may [unknowingly] eventually marry his [half-] sister.Feinstein argues from this source that adultery is not the basis of the concern that a woman be impregnated accidentally. In his view, physical sexual contact is part of the definition of adultery, and absent such contact the wife cannot be charged with promiscuity (nor can the child be branded illegitimate). He cautions, however, that the fidelity required in marriage commands that donor insemination be prohibited without the husband's consent.
Others, however, have argued that even if the charge of adultery cannot be sustained, the source's ruling cannot be extended to permit donor insemination. A woman may not lie on the sheets upon which another man slept despite the far-fetched and unintended possibility that she be impregnated; a fortiori she may not allow insemination by a person other than her husband even if she cannot technically be charged with adultery. Rabbi Eliezer Yehuda Waldenberg,17 a member of Israel's High Rabbinic Court, argues that even if technical halakhic objections cannot be marshalled to oppose AID, the procedure runs counter to basic halakhic values which stress genealogy and family integrity. He concedes that if AID is effected with non-Jewish sperm the child suffers no stigma, but cautions that whether or not the charge of adultery is technically sustainable, AID without the husband's consent is grounds for divorce.
It is also interesting to note the report by Sauer et al.19 that although similar in concept, disparity exists regarding the use of male or female siblings for gamete donation. Most ovum transfer patients surveyed had not only considered using a sister, but 61% had secured such an agreement. On the contrary, only 11% of the couples undergoing AID would agree to using a brother as their donor, and none had actually asked one to participate. The authors do not suggest a reason for this disparity; perhaps an explanation lies in the fact that sperm donation requires sexual arousal, while egg donation is clearly clinical and devoid of any sexual element.
It is the legal bonds of marriage that underlie a possibility of adultery; legally severing those bonds would make the relationship ethically and legally permissible. Incest, however, is determined by the natural (as opposed to legal) relationship between the individuals. Thus Rabbi Yigal Shafran20 opines that donor gametes might be permissible if technical arguments obviated the problem of adultery. However, no legal technical argument could be used to justify donor gametes if it involves a relationship which would have been incestuous if carried out naturally.
Given the negative societal judgment that seems to still evolve on adultery and incest, it is important that the physician have a clear understanding of his or her own personal position on this issue. This matter should be addressed directly in the preliminary counselling session.
The secrecy that often evolves on donor assisted production poses some other technical problems that impact specifically on a halakhicly concerned Jewish couple. The mother's husband is not the halakhic father of the child; hence if the husband dies intestate, the child may not legally inherit --and if he or she does, in effect the legitimate heirs are being robbed. This problem can be solved by the husband writing a legal will.
The second problem concerns the requrement for halitzah, the religious ceremony the brother of a childless deceased man must perform before the widow can remarry. (No ceremony is required if the deceased had no brothers.) If the donor insemination were kept secret, the widow will not want to disclose the fact after her husband's death and would marry without the ceremony in contrast to Jewish law. Fear of creating such a situation is quoted by opponents of donor insemination. Feinstein dismisses this as a false concern, arguing that there is no reason to conclude that the widow would violate halakhah to maintain the secret.
The situation is further complicated if the husband is a Kohen (descendant of the priestly class) or a Levi (descendant of the levites). Such status is inherited from the father and obviously the husband's status does not evolve on a child fathered through donor insemination. Rabbi Shelom Zalman Auerbach22 maintains that in the case of insemination from a non-Jewish donor, the child takes on the status of the mother, becoming a Kohen or Levi if his maternal grandfather has that status.
To some extent, the issues of secrecy are similar to those involved in an adoption; with donor insemination, however, there is much less likelihood that the secret would emerge unwittingly.
Donor insemination is not curative in that it does not overcome the husband's inability to impregnate his wife. The wife is not suffering from any physical ailment; rather, she and her husband are frustrated in the desire for her to deliver a child. Fulfillment of a person's desire is not, in and of itself, properly designated as therapy, especially if it involves otherwise objectionable means. For example, most people would hesitate to call adultery therapeutic if it were the medium adopted to overcome the husband's infertility, even if it were carried out with the husband's consent (and called NID: natural insemination --donor). Thus, Rabbi Yitzhak Yaakov Weis23 condemns AID for nothing more than the "promiscuous" activity wherein the woman lies unclothed before the physician who, in turn, manipulates her reproductive organs simply to satisfy her desires. Use of the term TID would mask, to some extent, the moral and ethical problems associated with AID.
The above notwithstanding, the psychological state of the people involved is a legitimate halakhic consideration, and it may in some cases be weighed against the more general halakhic values. As Rabbi Aharon Lichtenstein24 notes:
A sensitive posek [halakhic decisor] recognizes both the gravity of the personal circumstances and the seriousness of the halakhic factors.... He might stretch the halakhic limits of leniency where serious domestic tragedy looms, or hold firm to the strict interpretation of the law when, as he reads the situation, the pressure for leniency stems from frivolous attitudes and reflects a debased moral compass.Thus, for example, when Shelomo Goren,25 former Chief Rabbi of Israel, rules on the permissibility of aborting a fetus diagnosed by amniocentesis as having Downs Syndrome, he first states the principle that aborting such a fetus is not countenanced by halakhic medical ethics. He then adds that if continuing the pregnancy will have severe negative psychological impact on the mother or other family members, he would consider a one-time permissive ruling for an abortion after appropriate psychological and genetic counselling.
Likewise, in insisting that his permissive ruling on AID (using sperm from a gentile donor) could not be faulted, Feinstein was resolute in stating that such a procedure was only a course of last resort. He was careful to caution that he would permit the procedure only in the extreme instance where the wife was under severe mental stress and the individual circumstances have been reviewed by a competent halakhic authority. There is no promiscuity involved, he rules, as there is no such intent or sexual arousal. AID, otherwise ethically questionable as a general procedure, might be allowed as therapy for a distraught woman suffering psychologically from her husband's infertility, there being no technical problem of adultery or possible future incest. But it becomes acceptable only when she (and her husband) cannot be reconciled to either a childless marriage or adoption. While he does not address the question of egg donations directly, it seems logical to presume that a similar position would apply to that procedure.
Of course, this assumes that donor gamete procedures will actually heal the woman and not do harm to the family. Halakhists opposed to donor insemination despite the fact that it may not violate technical prohibitions often maintain that, in the final analysis, the procedure will lead to divisiveness, jealousy on the part of the husband, mental anguish, and so on. (There would be less fear of this in the case of egg donation, where both the husband and wife are the halakhic parents.) For these reasons, even Feinstein warns that donor insemination should be discouraged.
As with any proposed medical therapy, proper research is required to deterine the long-term psychological impact donor gamete procedures have on the family as a whole and the individual members in particular. Certainly a couple considering the procedure must undergo serious counselling beforehand to insure to the greatest extent possible that the donor insemination will have a therapeutic rather than damaging impact on the family.
1. Ethics Committee of the American Fertility Society, Ethical Considerations of the New Reproductive Technologies, Fertil Steril. 53:6 Suppl 2 (1990).
2. Congregation for the Doctrine of the Faith, Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation, Vatican Press, 1987.
3. McCarthy DG. Infertility Bypassed. Ethics and Medics. March 1986, 11(3), p. 4.
4. McCarthy DG. TOTS is for Kids. Ethics and Medics. December 1988, 13(12), p. 2.
5. Mahlstedt PP and Greenfeld DA. Assisted reproductive technology with donor gametes: the need for patient preparation. Fertil Steril 52:908-914, 1989.
6. Dans PE. Reproductive technology: drawing the line. Obstet Gynecol 79:191-5, 1992.
7. Steinberg A. Harrzra-a Melakutit le-or hahalakhah, in Steinberg A, ed., Sefer Assiya (Jerusalem: Reuben Mass, 5742 ), vol. 1, 3rd edition, pp. 128-141.
8. Avraham AS. Nishmat Avraham: Even HaEzer (Jerusalem, 5743 ), pp. 5-17.
9. Avraham AS. Nishmat Avraham, vol. 4 (Jerusalem, 5751 ), pp. 181-187.
10. Smith WB. Opinion to Joel B. Wolowelsky. Chancery Office of the Archdiocese of New York. July 2, 1991.
11. Bleich JD. In vitro fertilization: questions of maternal identity and conversion. Tradition 25(4): 82-102 (1991).
12. Harakas SS. Contemporary moral issues facing the orthodox christian (Minneapolis, Minnesota: Light and Life, 1982), p. 90.
13. Klock SC, Maier D. Psychological factors related to donor insemination. Fertil Steril 56:489-495, 1991.
14. Teitelbaum J. Responsum on donor artificial insemination. HaMa-or 15(9):3-13, 1954.
15. Feinstein M. Responsum to Mordecai Yaakov Berish (5725 ). Published in Berish MY. Helkat Yaakov (Benai Brak, 5735 ), volume 3, sections 47-52.
16. Feinstein M. Responsa Iggerot Moshe. Part One (Brooklyn, NY: Moriah, 1961), responsum 71, pp. 169-171. Part Two (Brooklyn, NY: Moriah, 1963), responsum 11, pp. 322-324. Part Three (Brooklyn, NY: Moriah, 1973), responsum 14, pp. 436f. Part Four (Brooklyn, NY: Moria, 1985), responsum 32 (5), pp 75f.
17. Waldenberg EY. Responsa Tsits Eliezer (Jerusalem: 5745 (1985)], vol. 9, no. 51, section 4, pp. 240-259.
18. Robertson JA. Ethical and legal issues in human egg donation. Fertil Steril 52:353, 1989.
19. Sauer MV et al. Survey of attitudes regarding the use of siblings for gamete donation. Fertil Steril 49:721-722, 1988.
20. Shafran YB. Opinion to Joel B. Wolowelsky. Office of Halakhah and Medicine of the Jerusalem Chief Rabbinate. April 1, 1991.
21. Frydman R, Letur-Konirsch H, de Ziegler D, Bydlowski M, Raoul-Duval A, Selva J. A protocol for satisfying ethical issues raised by oocyte donation: the free, anonymous, and fertile donors. Fertil Steril 53:666, 1990.
22. Rabbi Shelom Zalman Auerbach, "Hazra-a Melakhutit," Noam, Vol. 1 (Jerusalem: Mosad Harav Kook, 5718 ), p. 166.
23. Weis YY. Minhat Yitzhak (London, 5727 ), vol. 4, responsum 6.
122 Lichtenstein A. Abortion: a halakhic perspective. Tradition 25(4):11, 1991.
24. Goren Sh. Interrupting a pregnancy after amniocentesis has determined that the fetus is a Mongoloid. Me-orot 2:26-27, 1980.