Richard V. Grazi and Joel B. Wolowelsky
Dr. Grazi is the Director of Genesis Fertility and Reproductive Medicine and the Editor of Be Fruitful and Multiply: Jewish Tradition and Infertility.
Dr. Wolowelsky is Chairman of Advanced Placement Studies at the Yeshivah of Flatbush and, most recently, Associate Editor of the MeOtsar HoRav Series: Selected Writings of Rabbi Joseph B. Soloveitchik.
The Jewish Spectator, 65:4, Spring 2001, Aviv 5761

The scene is a sad one. A young man is killed in a motorcycle accident, brain dead but sustained on life support until his widow can be convinced to donate his organs to waiting patients. He is dead, says the doctor, but he can live on in another way. His heart, lungs, kidneys, and other organs will all continue to live in the bodies of others who would otherwise have succumbed to their own illnesses.

His young widow agrees, but also has another "donation" in mind. The organs can save others, she says, but she wants a vial of his semen so that he will indeed live on through the child they will yet have. Harvesting sperm from a recently deceased man allows for the possibility of inseminating a woman --his wife, girlfriend, or an anonymous "surrogate mother"-- to carry his child. The medical technique is not at all complicated. Yet little thought has been given to the ethical considerations involved. Between 1980 and 1995, eighty-two requests for postmortem sperm procurement were reported at 40 facilities in 22 different states. That more than half of the reported requests were made between 1994 and 1995 pointed to the fact that this was even then a growing issue. At the time of that report, there were no explicit ethical guidelines, legislation or relevant case law available to guide fertility specialists. That situation has not improved much over these last five years or so, even as requests for postmortem sperm procurement and use to initiate pregnancies continue to grow.

When the Israeli Supreme Court issued a decision in the Nachmani case (concerning whether a man could prevent his estranged wife from implanting, against his wishes, a preembryo they had previously been created and frozen), it quoted the Australian Supreme Court's observation that the new reproductive technologies may often create a situation of "law, marching with medicine but in the rear and limping a little." Indeed, the startling innovative possibilities that help in the creation of life often bring along with them ethical problems never before considered by the secular or halakhic legal communities. Such is the case with postmortem sperm procurement, which allows fatherhood from the grave, so to speak.

Halakha --Jewish law and ethics-- has its own concerns regarding this procedure. Before taking them up, however, let us backtrack to consider its attitudes towards related issues regarding the new reproductive technologies. In general, Halakha has embraced these technologies as a welcome opportunity to alleviate the pain of infertility. Halakha considers natural marital relations to be morally normative but, unlike the Roman Catholic Church, it does not regard them as morally absolute. According to most halakhists, the biblical command to "be fruitful and multiply" encompasses no more than natural marital relations and does not demand any artificial intervention. Thus, abandoning the normative approach to procreation must be weighed against other moral imperatives. In Halakhic Judaism, this judgment is relegated primarily to rabbinic authorities, not the individual conscience.

"A sensitive posek [halakhic authority],"
wrote Rav Aharon Lichtenstein, head of Yeshivat Har Etzion in Israel,
"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."

Artificial Insemination and IVF
While there is no unanimity on the issue, the vast majority of poskim views artificial insemination with the husband's sperm (AIH) and in vitro fertilization (IVF) with the couple's gametes as appropriate methods for overcoming a married couple's infertility problem. Some halakhists have argued that physical intercourse is a sine qua non for establishing halakhic filial relationships, suggesting that a child born through either artificial insemination or IF has no legal relationship to its genetic father. However, the current consensus is that such a child has the same relationship to its genetic father as if the conception had been effected through natural intercourse. Generally, all halakhists have strong reservations about any use of donor gametes, although some are willing to consider allowing it under certain circumstances.

(Parenthetically, we should note that unfortunately, some halakhists have expressed distrust of the medical establishment's integrity and therefore fear that professional standards might not be adhered to and that foreign gametes will be added to or substituted for those of one the partners in order to insure a successful pregnancy. This distrust can usually be overcome by establishing a good relationship between the doctor and the patient's halakhic authority. Some embryology labs have wisely introduced elective rabbinical supervision in order to dispel any doubts the couple or their religious authorities might have about the integrity of the procedures.)

Artificial insemination with a donor's sperm, as we noted, is not universally accepted. In fact, it was one of the issues that generated a most heated debate between two of the major poskim of the previous generation. Rabbi Yoel Teitelbaum (the Satmar Rav) considered donor insemination (DI) to be adultery pure and simple, while Rabbi Moshe Feinstein argued that a charge of adultery could not be sustained in a case where there was no physical intercourse. While Rabbi Feinstein argued that DI involved no technical halakhic violation, he too had serious reservations about it because it violated the exclusivity of relationships that should characterize a marriage. He was willing to allow it only in the case of a distraught woman who could not be reconciled to a childless marriage.

On a practical level few poskim are willing to actually endorse the procedure outright, if only because they see it as offensive to the notion of exclusivity which should characterize a marriage. De facto, Rabbi Feinstein's position has prevailed in that most poskim agree that charges of adultery cannot be sustained, that there is no stigma of illegitimacy attached to the child, and that, while the woman's husband is not the child's halakhic father, if he agreed to the procedure he is responsible for supporting the child as if it were his own. (On the other hand, a woman's use of DI without her husband's consent is grounds for divorce.) Halakhically, a child born to a Jewish mother and a non-Jewish father is considered fatherless and has no familial relationship with his father's relatives. For this reason many poskim who allow DI prefer that the donor be a non-Jew, as there is thereby no necessity to keep records to assure that the child not marry another child of the donor. Some, however, maintain that the father's brother is the preferred donor, as the family can assure that a consanguineous marriage will not take place and there is full knowledge that the genetic integrity of the family is maintained.

Poskim have not been willing to forthrightly allow artificial insemination of a single woman. Logically, anyone who allows DI for a married woman should find it much easier to allow artificial insemination of an unmarried woman, as there can be no charge of adultery or illegitimacy in her case. Poskim may allow themselves to react sympathetically if DI is the only option in a childless marriage, as the traditional view of a family includes children, and a childless marriage calls out for a solution. But a child in a deliberately husband-less family runs counter to traditional notions of family. Hence, most poskim will not say that artificial insemination of a single women is prohibited, as technically it may well not be. But they cannot bring themselves to say explicitly that it is allowed, because that runs counter to their intuitive notions of what a Jewish family should be.

We do not wish to debate this issue here, except to note that in these cases there is much more involved than the technical halakhic judgment. From a traditional halakhic perspective, there is a difference between, on the one hand, a woman who longs for a traditional family life but who must confront the fact that her biological clock is running out, and, on the other hand, a lesbian who, whatever, the sincerity of her personal beliefs, rejects halakhic definitions of family and marriage. A widow who wishes to carry her deceased husband's child, certainly wishes to extend the notion of her family as long as possible.

The use of donor eggs has generated a different halakhic discussion. Here the major debate has been whether the genetic or gestational mother is the halakhic mother. It is a most interesting discussion, not simply because there are no ancient sources upon which to draw, but because the concept of motherhood developed by the Sages of old could not have included the notion of an egg, given that it was scientifically unknown until recently. As expected, the arguments from analogy point in different directions, with poskim arguing for each possibility. (The issue is further complicated when only one of the donor and recipient of the egg is Jewish and the question of whether or not the child must be converted is addressed.) Indeed, even our "gut reaction," so to speak, points in two directions. On the one hand, in the case of a woman whose ovaries are not functioning and who obtains an egg from a donor, most would tend to say that the child which she carried and delivered is "hers." On the other hand, in the case of a fertile woman who must obtain the services of a surrogate to carry her baby, many would see the baby as hers and the surrogate as a hired "fetus-sitter" of sorts. But law cannot rely on gut reactions, and the question of who is the halakhic mother is yet to be fully resolved.

In allowing a Jewish couple to arrange for an unmarried Jewish surrogate to carry their fetus, Rabbi Zalam Nehemia Goldberg, one of Jerusalem's senior poskim, sets out two major principles. First, every effort must be made to insure that the legitimacy of the resulting child is not compromised. (Thus, for example, even though some poskim might find no problem if the surrogate mother were married, others have serious reservations about the legitimacy of a child born to a married woman who was impregnated with the embryo of a man not her husband. Therefore we should insist that the surrogate be unmarried.) Second, forbidding something requires a specific prohibition; the "natural" situation is to permit something if there are no serious objections.

Status of the Child
We noted that the current consensus among poskim is that a child born through artificial insemination or IVF has the same relationship to its genetic father as if the conception had been effected through natural intercourse. Yet this is not necessarily the case with regard to posthumous insemination. Thus, for example, the United Kingdom's Human Fertilisation and Embryology Act legislates that
"Where the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not to be treated as the father of the child."
This provision was inserted in the HFEA act to ensure that estates can be administered with some degree of finality, and the act itself extends this ruling to questions of incest and prohibited degrees of marriage. The United States Uniform Status of Children of Assisted Conception Act proposes the same position. The late Rabbi Shaul Yisraeli similarly ruled that a child conceived through posthumous insemination or implantation has no halakhic father. (Presumably, a similar consideration applies in the case of post-mortem egg procurement. Those who hold that it is the genetic --as opposed to gestational-- mother who is the halakhic mother might conclude that a child conceived from an egg procured post-mortemly and carried by a surrogate mother after being fertilized has no halakhic mother.)

It is true that if a woman were pregnant at the time of her husband's death, the child which is eventually born is considered the child of the deceased. However, frozen preembyos maintained outside of the mother's body have no standing in halakha (and may be discarded). Even if they are implanted subsequent to the man's death, there was no pregnancy at the time of the genetic father's death and the child born therefore has no halakhic father. This notion of a child unrelated to its genetic father has precedent in halakha. A child born to a Jewish woman and gentile man has no halakhic father, as is the case with a person who converts to Judaism and thereby severs all previous halakhic familial ties.

While this ruling would mean that the child would not inherit the estate or personal status as a Kohen or Levi from his genetic father, there is reason to suggest that on a practical matter he or she would be prohibited from marrying his genetic half-sibling for reasons of public policy. The precedent for this is the situation of two gentile siblings who convert to Judaism. Conversion severs all previous familial ties, and theoretically they are now halakhically unrelated and could marry. Nonetheless, the rabbis prohibited it as lacking propriety.

Permissibility of Cryropreservation of Sperm
Before discussing the acceptability of posthumous insemination, we might comment on the permissibility of cryropreservation (freezing) itself. There is general agreement that cryropreservation of semen and fertilized preembryos is certainly allowed in the context of a married couple's infertility therapy, if for no other reason than it decreases the number of times semen must be procured and eggs harvested. However, its permissibility in other contexts is a matter of some controversy. For example, Israeli Chief Rabbi Eliyahu Bakshi-Doron prohibits an unmarried man from cryopreserving his semen in anticipation of chemotherapy that might leave him sterile. Such a procedure is allowed, he argues, only to fulfill the halakhic obligation to procreate. Inasmuch as an unmarried man cannot yet be considered bound by this obligation, he argues, he cannot be permitted to secure the semen by masturbation.

Others reject Rabbi Bakshi-Doron's argument, noting that while the obligation to procreate should optimally be fulfilled with one's wife, post factum it can be fulfilled outside of a marriage. An unmarried man is clearly under the obligation to procreate and therefore should be allowed to procure and cryopreserve his sperm towards that end. Moreover, some simply dispute the existence of any prohibition, arguing that masturbation is allowed for any legitimate and compelling reason, a criterion clearly met by a bachelor facing chemotherapy that might leave him infertile. Rabbi Zalam Nehemia Goldberg permits it without question.

The late Rabbi Shelomo Zalman Auerbach is quoted as seeing no basis for a halakhic distinction between married and unmarried men in this matter, but felt that in either case such a procedure runs counter to general halakhic ethics, although he did not prohibit it. His position can be understood in light of the opinion that the halakhic obligation to "be fruitful and multiply" requires only that the couple engage in regular sexual relations and not that they persue "heroic" actions to assure a pregnancy. While there is no unanimity on the issue, it is clearly within the bounds of halakhic ethics to extend to unmarried men facing chemotherapy the permissibility of storing their semen for future use.

Postmortem Sperm and Egg Procurement
The question of postmortem sperm procurement is further complicated by the debate on whether brain death constitutes halakhic death. The new medical definition of "brain death" has not been universally accepted in the halakhic community, as the individual's heart is still beating. Generally, the Israeli Chief Rabbinate has accepted brain death as the halakhic definition of death, while others have maintained that such people are still halakhically alive.

If the brain-dead person is halakhically dead, there is a problem of nivul hamet and hana'at hamet, desecrating a corpse and deriving benefit from it. Halakha maintains that the sanctity of the body --the "ark" which held a holy soul-- transcends one's death. The deceased's dignity may be put aside only in a case of pikuah nefesh--danger to human life. In such a case, an autopsy might be allowed. But here the compelling reason is fulfilling the wishes of the deceased's widow, and as noble as those wishes might be, they might not reach the mark of allowing making use of the corpse. Rabbi Yigal Shafran, Director of the Jerusalem Rabbinate's Department of Medicine and Halakha, prohibits postmortem sperm procurement on these grounds. Those who would allow it note that a lower standard than pikuah nefesh is used to permit harvesting corneas, for example, and that such a procedure could be allowed only when it is reasonable to assume that it is the deceased own wishes which are being carried out. Currently, procuring eggs posthumously might be more problematic. The science of maturing eggs in vitro has not yet been reliably established; therefore harvesting eggs from a brain-dead individual would require subjecting her to ovarian stimulation, a medical procedure which would necessitate delaying burial for a potentially extended period. However, it is fully expected that within a decade or two scientists will be able to reliably freeze and subsequently mature eggs from extirpated overies for use in IVF, something that analogous to current sperm procurement. In addition, the question of whether her biological progeny is her halakhic child complicates the ethical considerations to some degree.

On the other hand, if the person is halakhically alive, the procedure of obtaining the semen or eggs might be considered an assault on a live person. Indeed, all the considerations of taking sperm or eggs from an incompetent person come into play. In addition, for those who accept the ruling that the child born through posthumous insemination has no halakhic father, the issue of whether the individual is dead or alive at the time of the insemination has serious implications regarding the "pedigree" of the child.

Postmortem Insemination and Pregnancy
Let us return to the emergency room scene, where it now a young pregnant woman who is brain dead. She is too early on in the pregnancy to deliver, and the fetus might survive if she is left on life-support for an extended period. Should her body be kept "alive" so that the baby might be delivered? (It is interesting to note that according to halakhah, if a woman condemned to death is pregnant, the fetus is killed and she is executed immediately without waiting for the pregnancy to come to term.) Should it be done even against the wishes of her husband? Is there any significance to the amount of time she must be maintained? What if she is not pregnant and her husband insists that she be inseminated with his sperm and kept on life-support so that she might yet have a child? Such questions have not yet emerged in the halakhic literature because the medical technology is not yet sufficiently developed to allow for these as practical problems. But it is only a matter of time before we shall be faced with issues of postmortem insemination and pregnancy as motherhod from the grae becomes a real possibility.

Rights of the Deceased
Whatever the technical parameters of nivul hamet and hana'at hamet (desecrating a corpse and deriving benefit from it), one ethical imperative informs our whole discussion: the deceased does not forfeit all of his or her human status upon death. On the contrary, the corpse is never considered simply an object to be disposed of with efficiency and economy.

A religious obligation devolves on the community and the family to insure that the corpse is not exploited. The fact that family members have the authority to donate organs does not represent their ownership of the corpse; they cannot act arbitrarily, but are restricted to conforming to halakha's ethical judgment. The right to donate an organ does not in and of itself extend to the right to authorize procurement of sperm or eggs. Thus all halakhist who have addressed the question assume that there is reasonable assurance that the deceased's wish would be to create progeny posthumously. Parenthood cannot be imposed on a person, living or dead, whether the gametes have been obtained before death or after. It certainly precludes imposing parenthood on a minor or incompetant individual

Halakhah sets the parameters for our actions, but it is far from clear that everything that is permitted is wise. Posthumous parenthood can be viewed as the inability to confront the finality of death, on the one hand, or the determination to allow the family unit to transcend death, on the other. Its ethical permissibility requires community discussion and personal counseling.

back to home page