Rabbi Jachter's Halacha Files
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Parshat Vayera           15 MarCheshvan 5765              October 30, 2004              Vol.14 No.7


<< Part 1<<

Torah Perspectives on Cloning - Part 2
by Rabbi Chaim Jachter

Introduction
Last week, we introduced the topic of Halachah and cloning. We discussed whether Halachah permits cloning and whether a clone has the Halchic status of a human being. This week, we shall conclude our discussion of this topic by exploring some of the Halachic ramifications of engaging in the process of cloning.

Does a Man Fulfill his Mitzvah of Pru Urvu by Cloning?
A major issue to be discussed is whether a man fulfills his obligation of Pru Urvu by cloning. This issue depends on whether on whether one's clone is defined as his child according to Halacha. We must clarify that Halacha does not define parenthood solely based on biology. For example, if a Jewish man fathers a child with a Nochrit, he is not considered to be the Halachic father of the child. In order to put this question in proper perspective we must first examine the debate whether a child produced either through artificial insemination or in vitro fertilization (IVF) is defined as one's child according to Halacha.
The Chelkat Mechokeik (Even Haezer 1:8) raises the question as to whether one is regarded as the Halachic father if his child is not conceived by a sexual act. The question is whether fatherhood is conferred by donating the semen or is a sexual act also necessary to create a paternal relationship. Rav J. David Bleich (in the Tradition article we cited last week) concludes that the majority of Poskim (including Rav Shlomo Zalman Auerbach and Rav Ovadia Yosef) rule that the semen donor is the Halachic father of the child. For an extensive list of Poskim who address this issue see Rav J. David Bleich, Contemporary Halachic Problems 4:240, footnote nine.
Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 15:40) argues that even those who rule that one who fathers a child by artificial insemination is considered to be the Halachic father, would agree that one who conceives a child by IVF is not considered to be the child's Halachic father. He believes that one is defined as the father only when his semen is introduced directly into the wife's uterus and the fertilization occurs in the uterus. The procedure of IVF, argues Rav Waldenberg, differs too much from natural reproduction for Halacha to regard the man as the father. However, Rav Avigdor Nebenzahl (Sefer Assia 34:5) and Rav J. David Bleich (ad loc. p. 239) disagree with Rav Waldenberg and believe that the man who donates the sperm in the IVF procedure is considered the Halachic father even though fertilization occurs outside the womb. Rav Gedalia Orenstein (Techumin 24:156-159) presents a most convincing rebuttal of Rav Waldenburg's arguments.
Cloning, however, is different according to Rav Bleich. Rav Bleich argues (in the aforementioned Tradition article) that a man who donates body material for cloning is not considered the Halachic father, even if the clone was created from body material of both the husband and wife. Rav Bleich asserts that a man is not defined as the father if he has not donated semen to produce the child. Rav Bleich, though, notes that the Halacha might be different if the child is cloned from a sperm cell.
Rav Yitzchak Sheilat (a leading Rebbe at Yeshivat Maaleh Adumim, a major Yeshivat Hesder), on the other hand, argues (Techumin 18:138-140) that a man who produces a child by cloning is considered the child's Halachic father. He cites the Minchat Chinuch (Mitzvah 1) who argues that the Mitzvah of Pru Urvu is fulfilled when one has children and not specifically by engaging in marital relations. Thus, Rav Sheilat argues that just as one fulfills the Mitzvah of Pru Urva even if he produces children by artificial insemination or IVF, so too he fulfills this Mitzvah by cloning. Rav Sheilat does not believe that Halacha considers whether the child emerges from sperm cells or any other body material. Nonetheless, the basis of Rav Sheilat's approach is debatable as many Acharonim disagree with the Minchat Chinuch's assertion, especially in light of the Rambam's comments in Hilchot Ishut 15:1. On the other hand, the majority ruling that one fulfills Pru Urvu even with artificial insemination seems to accord with the view of the Minchat Chinuch.

Husband - Wife Cloning to Produce a Child
Aside from ramifications regarding Yibbum and Chalitzah, the dispute between Rav Bleich and Rav Sheilat has profound implications. According to Rav Sheilat, it is appropriate for an infertile couple to produce a child by cloning. On the other hand, Rav Bleich argues that it is not appropriate for an infertile couple to produce a child by cloning.
Dr. Avraham Steinberg and Dr. John Loike (in an essay that appears in the aforementioned issue of Tradition) present a fascinating ramification of the dispute between Rav Bleich and Rav Sheilat. Drs. Steinberg and Loike suggest that according to Rav Bleich's approach cloning might be a way for Mamzeirim to produce children in a manner that will not pass the stain of Mamzeirut to the next generation. If a man is not the Halachic father of his clone, his Mamzeir status is not passed to the next generation. This suggestion, Drs. Steinberg and Loike argue, is analogous to Rabi Tarfon's advice to a Mamzeir to marry a Shifcha Kenaanit as he will not be regarded as the Halachic father to their child (Kiddushin 69a). Indeed, Rabi Tarfon's ruling is codified in the Shulchan Aruch as normative Halacha (Shulchan Aruch Even Haezer 4:20).

Cloning of Single Individuals
Rav Sheilat, however, strenuously objects to a single person cloning himself. Indeed, the Sefer HaChinuch (Mitzvah 582) writes "Hashem wishes for people to be born from the union of a male and a female who unite in a kosher manner." The Chinuch clearly implies that Hashem does not want people to be created from a single male or female. Similarly, Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 4:E.H.1:3) strongly objects to a single woman conceiving a child by means of artificial insemination. In addition, Rav Yigal Shafran (an authority in the area of medical Halacha) writes (Techumin 20:351) that retrieving sperm from a recently deceased man in order to artificially inseminate his widow constitutes a severe violation of the spirit of Halacha. The Torah wants a child to be raised by a father and mother and it is offensive to produce a child knowing in advance that it will be raised without the benefit of being raised by both a mother and a father. Accordingly, Rav Sheilat writes that cloning should be placed under government supervision to assure that cloning should be performed only on behalf of infertile married couples and not on behalf of singles wishing to have children asexually.

Conclusion
One of the great wonders of the modern age is the application of the Halacha to modern circumstances, despite the fact that we may not introduce new Halachot after the compilation of the Talmud. Thus, every Halachic issue must be adjudicated on the basis of a precedent in the Gemara and its commentaries or based on an analysis of the principles articulated and implied by the Gemara. It is profoundly wondrous that Poskim consistently find a precedent in the Gemara and its commentaries for every new issue that emerges in modern times. In our case, it is particularly astonishing that the Meiri (that we cited last week) explicitly addresses the possibility of cloning. It appears that Hashem's subtle involvement in the Halachic process facilitates the existence of precedents in the Gemara and its commentaries for every new issue and challenge that arises.

 

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