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The Essential Component of Jewish Continuity

In Vitro Fertilization

By TorahLab

Unnatural means of bearing children has been the subject of Rabbinic literature for centuries. As far back as 2500 years ago, in the times of the Mishna there is a discussion of women becoming pregnant from the seed of a man long after it has left its source. This Talmudic material has served as source material for tens of leading respondents.
More than 500 years ago R. Yitzchok of Kurbil discussed aspects of artificial insemination, as did the Maharsham, the Divrei Malkiel, and R. Yaakov Lisa, in the early 19th century. In this article I offer a digest of the relevant issues relating to unnatural childbirth and what seems to be the conclusion of the greatest minds in Jewish history.
The issues from a halachic perspective are as follows.
Yichus or lineage – whose child is it? Obviously, when a child is conceived and born in the natural way lineage is not an issue. But under unnatural circumstances we must question if this child is considered the child of its father or not. For instance, is an IVF child whose father is a kohain considered a kohain? If we determine that the son is not a kohain, does he still deserve the inheritance of his father? And, if he doesn’t, then what if the child is female – can she now turn around and marry her father, given that according to the Torah they don’t seem to be related?!
An answer can be found in the Talmud. The Talmud asks, why does the verse state that “Esther had no father or no mother,” which is redundant, since the Megilla already stated that Esther was an orphan? The Talmud explains that as soon as Esther’s mother conceived, her father died and her mother died giving birth. Rashi comments that the title “father” begins with fertilization. If Esther’s’ father had lived through the pregnancy, the Torah would not say she had no father even though she was an orphan being that he was the father throughout the pregnancy. Whereas the title “mother” begins with birth. This is quite logical, because the father’s physical contribution ends at conception if he dies the child will still be born; the father is already considered the father. The mother, however, receives her title upon making her major contribution, birthing the child.
The meaning of the verse, then, is that not only was Esther an orphan but she never had a father and she never had a mother. This, explains Rashi, is how “she had no father” can be interpreted to mean that her father died at conception.
From this can be extrapolated that if an egg is taken from a woman and planted elsewhere (as in surrogate motherhood), then the motherhood is established at birth and is considered the child of the surrogate mother. Hence, if a father’s seed fertilized a Jewish mother’s egg but the birth takes place within a non-Jewish mother, the child is not considered Jewish.
In short, whatever has to do with patrilineal lineage is established at conception and whatever has to do with matrilineal descent is established at the time of birth.
This applies to our current situation. If the sperm is that of the father’s, then the child is considered the father’s in every way. If however the child of a father’s sperm and a mother’s egg is born in a surrogate mother, the child belongs to the birthing mother.
Status of Child: The Mamzer Issue
It seems clear that the seed of a father fertilizing that of his wife presents no status questions for the child, even if the process takes place in an unnatural way. The questions arise however, with donor sperm. The first issue that comes to mind is that of a mamzer. Let us define the word. A married woman who has an affair with a Jewish man other than her husband is guilty of adultery. Any child from such a union is a mamzer. If a Jewish woman has an affair with a non-Jewish man, even though this is sinful behavior, the child is not considered a mamzer. Likewise, a child born out of wedlock is not a mamzer.
Suppose that a woman is impregnated by a Jewish man other than her husband, but through unnatural means such as A.I.D. (Artificial Insemination Donor). It would appear that we have all the ingredients of a mamzer; with the exception on one – sin. The Smak concludes that the mamzer is a result of the sin of gilui arayoth, uncovering the nakedness of a married woman. This is not an ethical consideration but a halachic one. A sin that carries the punishment of kares, excision, results in a child who is a mamzer. Most halachic experts agree with the Smak that an A.I.D. child is not considered a mamzer.
Although in the case of artificial insemination, a child is not considered a mamzer, other questions do come up. The Rabbis of the Talmud were concerned, that since lineage is determined by the father, and the fathers’ identity becomes unknown a child can have siblings with whose existence, he or she, is unknown. The child could grow up and meet and marry a member of the opposite sec who may be a sibling.
Lest one think that the chance so f this happening are unlikely, consider that an average male is capable of producing 20,000 children a year. A very generous donor can father thousands of children. A recent court case in the United States found that a certain fertility doctor used his own sperm while deceiving the recipients who thought sperm from other donors was being used. The Supreme Court of the United States accepted evidence that this doctor could be the father of over 2,000 children! If so, the possibility that one will marry a sibling is not as remote as we may think.
A simple solution is to exclusively use a non-Jewish donor. Half brothers and half sisters from a non-Jewish father are not considered brothers and sisters by halacha and may marry. Rav Moshe Feinstein in his Igro Moshe suggested that, where donor sperm must be used, this was the only way to go.
This suggestion by Rav Moshe Feinstein led to a great controversy, and the pressure nearly led him to issue a retraction. The Satmar Rebbe, of blessed memory, call Rav Feinstein’s decision a “great and exceedingly evil abomination”, and posters were hung all over Jerusalem. Reb Moshe never retracted his decision, as it was clear that the criticism was not halachically based but philosophically. The Satmar Rebbe and others were offended by the thought of the donor process. Reb Moshe explained that he was ruling strictly from a legal point of view, conceding the validity of the opposition. Off the record, he once commented that he didn’t know any other source for what is right or wrong except for Jewish law. Judaism, he claimed, is not about personal taste or distaste, it is about Torah. Nevertheless, he placed strict conditions on using his decision as a heter or permission.
The Status of the Fetus and Embryo
According to the Talmud, the initial formation of a person lasts 40 days, at which time the neshama, soul, enters. The Christian Church refers to this as the animation of the body. The Maharal comments that when the Torah gives the command for a punishment of 39 lashes, it refers to them as 40 lashes. The Mishna explains that it means 40 minus one or 39. The explanation: when a person sins, it is a violation and abuse of the process used to create him or her. Thirty-nine days for the creation of the body, after which the body receives a soul. Since the soul did not participate in the sin process, the sinner receives forty lashes minus one, for the soul.
At 40 days after conception, the fetus is considered a living thing. At forty days, the Talmud states, a metaphysical torch is placed on the head of the fetus that grants a vision of the entire world and God teaches the newly created person the entire Torah.
Suppose that this process of formation takes place in a laboratory and not in a mothers womb. Could we assume that the same mystical secrets of life are taking place? I believe the answer is no. the gift of neshama is given only in the environment of the mother’s womb. Although some preliminary fertilization can occur outside the mother, the ultimate gift of life that only God can accomplish will only take place within the mother.
Since a neshama does not result from a laboratory conception, the product is not life. From a Torah point of view, there is not prohibition against tampering with or even disposing of this formation.
Interventions
One last consideration. The opinion of the Christian Church, generally, is that we shouldn’t play God. Life and death is the domain of the Almighty, they say, and mere humans should keep their hands off. What is the Jewish point of view?
The Torah deals with this directly. There is a verse that states that a doctor has permission to heal. Why does a doctor require permission to heal? The Tosafists answer this in HaChovel; One would think that illness is a punishment from God. Why should we interfere with God’s will? To this, the Torah says explicitly that a doctor has permission to heal.
The commentaries on Tosafos ask why a doctor needs more permission than, say, a businessman to do his job. If God deems me to be poor, shouldn’t I also need a verse in the Torah telling me I may improve my condition? The answer: medical help is internal, apparently more the domain of God than financial help. Nevertheless, the Torah says we should use all technology to heal ourselves and to improve our state of being. Even the Ramban, who considers using a doctor a leniency agrees that, in our case, a case of forming a family, which is a mitzvah, there is an obligation to seek medical help.
The Torah gives us a clear directive to do whatever is needed, within the parameters of halacha, to sustain and perpetuate life.

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