In recent months, a regrettable mishap occurred at Assuta Medical Center in which the wrong embryo was placed in the uterus of a woman undergoing in vitro fertilization. The child has been born but the genetic parents have not been identified, raising interesting dilemmas about this procedure.
Today, most Jewish medical ethicists have taken a generally positive attitude toward new assisted reproductive technologies, even as they impose restrictions and conditions on their use.
This was not always the case.
Jewish views on artificial insemination
When the innovations of artificial insemination (AI) were first developed, many decisors protested for a variety of legal and ideological reasons. Some objected to the method of semen procurement from a husband, which usually involves some form of masturbation that induces ejaculation.
The wasteful emission of seed (hash’hatat zera) is prohibited under Jewish law, as exemplified by the biblical episode or Er and Onan, spurring the name “onanism” for coitus interruptus. Kabbalistic sources further emphasized this prohibition, leading a few decisors to ban this treatment entirely.
The more lenient approach to semen procurement for both testing and insemination asserted that seminal emission toward a goal of procreation was not considered “wasteful.” Decisors taking this approach based their positions, in part, on medieval rabbinic sources that allowed the spillage of seed for some form of overriding purpose.
A heated debate ensued when fertility treatments required the use of a donor’s sperm (AID). Rabbi Immanuel Jakobovits, for example, decried the “mechanical” nature of artificial reproduction outside the marital framework, while others claimed that it was akin to adultery. Jewish law only recognizes natural paternity created by the biological parent, thereby making the (not publicly known) sperm donor the legal father.
As such, some decisors prohibited AID because they feared that the child would accidentally become involved in an incestuous relationship.
Other scholars, however, led by Rabbi Moshe Feinstein, forcefully argued against any claims that AID is the legal equivalent of adultery, contending that physical sexual relations must occur to violate that severe prohibition. To avoid concerns of an accidental incestuous relationship, he added that one should use sperm from a non-Jewish donor, whose paternity is not recognized when his seed produces a Jewish child to a Jewess. Other decisors added that there was nothing abominable about infertile couples utilizing artificial insemination, provided that they were prepared emotionally and psychologically for such a procedure.
This became the dominant position within rabbinic circles, thus enabling the birth of an untold number of Jewish babies.
As opposed to the male contribution to fertility treatments, which is clearly defined, there are several stages of reproductive activity for females – ovulation, conception, pregnancy, and birth – thereby creating complex questions regarding maternity when two women contribute to the process. Because of these complexities, Rabbi Eliezer Waldenberg entirely opposed the use of in vitro fertilization, even when a husband donated the sperm and his wife contributed the egg and carried the baby to term. He opposed the “unnaturalness” of this process and further claimed that children born from such a process lack any legal parents. This position, however, was widely rejected by most decisors, including Rabbi Avigdor Nebenzahl, who argued that we should not outrightly reject technology that helps couples reproduce.
Many suggested that we may determine legal parenthood by using the paradigm of adoption. While many Jewish sources praise couples for adopting children, Jewish law states that the biological parents retain their status as the legal parents, even though the adopting couple gains certain rights and responsibilities. Adoption, therefore, serves as a precedent for determining paternity based on the natural parents. When the genetic mother not only provides the egg but also carries the baby to term, Jewish law recognizes her as the legal mother, even if the baby is immediately adopted.
A more complex case involves scenarios in which one woman donates the egg which undergoes in vitro fertilization and is then implanted into a different woman (the “host” mother). In cases of “egg donation,” the carrier is the wife of the sperm donor with the egg donor playing no continued role. In cases of “gestational surrogacy,” a third-party woman serves to carry the embryo created from the sperm and egg of a couple (or possibly other donors).
Rabbi Shmuel Wosner prohibited any form of egg donation or gestational pregnancy because it causes confusion about personal lineages and leads to multiple health and moral concerns. Yet many scholars countered that it remains permissible when other fertility options have failed, even as they, too, demanded strict regulation over the process. While the recent mixup still requires further investigation, it appears that greater supervision might have prevented this error.
Decisors have disagreed about at what stage of development maternity becomes established. One immediate implication of this question is whether the child requires conversion, since the child’s status as a Jew stems from the Jewishness of its legal mother.
Many initially asserted that maternity is established at parturition, i.e., the woman who gives birth to the child is its legal mother. Later, a growing number of decisors contended that maternity is determined at the point of fertilization, i.e., the genetic mother is the legal mother. In recent years, the pendulum has somewhat swung back to favoring the birth mother. Others have suggested that the child has, for some purposes, two legal parents, thereby prohibiting the person from marrying siblings through the donor mother and the birth mother.
Given this ongoing halachic dispute, Chief Rabbi David Lau wisely ruled in the Assuta case that since we can identify the birth mother but not the genetic mother, maternity should follow the former. This was a wise decision, even as one hopes that the rabbinate may successfully come to some form of agreement on the broader issue so that every child born from egg donation and surrogacy will have a clear status. ■
The writer is the director of the Halachic Organ Donor Society and author of A Guide to the Complex: Contemporary Halakhic Debates. [email protected]