In August 2001, President Bush presented his position regarding embryonic stem cell research. He adopted a compromise position between the Catholic Church’s complete opposition and liberal exponents’ unbridled support. Interestingly, the President adopted (for the most part) the approach of Orthodox Jewish Poskim to this issue. The Orthodox Union and the Rabbinical Council of America articulated the Halachic position on this topic in a letter they sent to the President in July 2001. In this essay, we will explain the position of Halachic authorities regarding this issue. We will print as a supplement to this article the text of the OU-RCA letter to the President. We should note that the President did not completely follow the Halachic position, which calls for more safeguards than did the President; however, the basic Halachic position has also become the law of the United States.
Chillul Shabbat to Save the Life of a Fetus
The Mishna (Yoma 82a) teaches that we may violate Yom Kippur and Shabbat to save the life of a pregnant woman. The Rosh (Yoma 8:13) presents a dispute among the Geonim and Rishonim whether one may violate Shabbat or Yom Kippur in order to save the life of the fetus. Some rule that only saving the life of the mother justifies violating Shabbat or Yom Kippur. The Behag, however, believes that one may violate Shabbat or Yom Kippur even to save the life of the fetus. The Ramban (Torat Haadam, Inyan Hasakana), Rashba (Shabbat 151b), and Ritva (Niddah 44b s.v. Dichtiv) endorse the Behag’s ruling.
The Shulchan Aruch does not explicitly address this dispute. However, the Tur (Orach Chaim 617) rules in accordance with the Behag. The Mishna Berura (617:1) and Aruch Hashulchan (O.C. 617:1) appear to rule in accordance with the Behag. The Maharsham (cited in Orchot Chaim O.C. 617:1), Teshuvot Tzitz Eliezer 11:43, and Shemirat Shabbat Kehilchata (36:2) explicitly rule in accordance with the Behag.
Chillul Shabbat to Save the Life of a Fetus within Forty Days of Conception
The Korban Netanel (Yoma 8:10) cites the Ramban who rules that according to the Behag, one may violate Shabbat or Yom Kippur to save a fetus within forty days of conception. The Shaar Hatziyun (617:1), however, is uncertain whether this is permissible. This uncertainty stems from the Gemara (Yevamot 69b) and Rambam (Hilchot Terumot 8:3) that state that a fetus within forty days of conception is considered “mere water” because of its lack of development.
The Ramban believes that even though, before forty days, the fetus is not considered a live being, it still has the potential to live and thus one must desecrate Shabbat or Yom Kippur to save it. The aforementioned Maharsham, Tzitz Eliezer, and Shemirat Shabbat Kehilchata rule in accordance with the Ramban’s understanding of the Behag. They note that the Gemara (Yoma 83a) teaches that Safek Nefashot Lehakel, that one should be lenient in case of even possible danger to life. Hence, the uncertainty of the Shaar Hatziyun remains unresolved, and we may rule leniently regarding this question. Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 4:50-51) rules that one may violate Shabbat or Yom Kippur even in case of only possible mortal danger to a fetus that is less than forty days old.
Abortion within Forty Days of Conception
Based on the Gemara’s assertion that a fetus within forty days of conception is viewed as “mere water,” some Poskim permit an abortion at this point in case of great need. These authorities include Teshuvot Torat Chessed (Even Haezer 42:33) and Teshuvot Seridei Eish (3:127). On the other hand, Rav Isser Yehudah Unterman (Teshuvot Shevet Miyehuda 1:9) and Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat 2:69) reject this lenient approach. Rav Moshe argues that since the Ramban sanctions desecration of Shabbat to save a fetus at this stage, we are forbidden to perform an abortion at this point. See Teshuvot Bnei Banim 3:38-39, where Rav Yehuda Henkin offers a compromise position on this question.
Rav Henkin emphasizes that a layman should not decide such a question. Moreover, Rav Aharon Lichtenstein, in a personal conversation with me, once compared a Rabbi rendering a Halachic decision in the area of abortion to a physician conducting a liver transplant. Just as an ordinary physician should not perform a liver transplant, so too an ordinary Rabbi should not render a decision regarding an abortion. Only a Rav of eminent stature may render a decision regarding abortion.
Embryos before Implantation – Chillul Shabbat and Disposal of Excess Embryos
Rav Shmuel Wosner (Teshuvot Shevet Halevi 5:47) rules that even according to the Ramban’s interpretation of the Behag, one may not violate Shabbat in order to save a fertilized egg that has not yet been implanted in a woman. He reasons that the Ramban permits Shabbat desecration even for an entity that is not yet alive, since most fetuses will survive to term. However, no such justification exists for a not yet implanted fertilized egg, since most of them will not be implanted and survive to term. Rav Wosner writes that even if the technology will progress to the point that most eggs will survive to term, he would still be inclined to believe that Shabbat desecration would not be justified.
Rav Zalman Nechemia Goldberg told me that it is permissible to discard fertilized eggs that were created, but will not be utilized, for IVF. The OU-RCA letter states that this is the accepted opinion among contemporary Halachic authorities. It seems that even Rav Moshe Feinstein might concur with this reasoning, as Halacha does not sanction Shabbat desecration for a not yet fertilized egg.
Embryonic Stem Cell Research
Accordingly, the OU-RCA letter states that Halacha sanctions using an embryo for research purposes if it was created for the purpose of IVF but will be discarded. However, Poskim do not permit creation of an embryo for research purposes. This does not constitute sufficient reason to sanction harvesting sperm. Halacha permits this only in the attempt to create a child (see Yevamot 76a, Teshuvot Igrot Moshe Even Haezer 1:71, Teshuvot Tzitz Eliezer 15:45, and Nishmat Avraham 3:8). The OU-RCA letter urges that the government establish rigorous supervisory procedures to insure that the procurement of embryonic stem cells is accomplished in an appropriate manner.