Custody disputes between a divorcing couple have occurred from time immemorial. Modern technology, however, has introduced a new variation on this theme – disputes as to which parent has control of frozen preembryos produced in the process of in vitro fertilization (IVF).
In the process of IVF the husband and wife each contribute their material to create a fertilized egg in a laboratory (referred to as a preembryo) which is subsequently implanted into the wife. Sometimes, though, the preembryos are not implanted immediately (for a variety of reasons) and are frozen for implantation at a later time. In the past number of years courts throughout the world have adjudicated disputes between divorcing couples as to who controls the frozen preembryos.
Two important articles written in English have been written on this topic and have outlined Halachic perspectives on this issue (Rav Yitzchak Breitowitz, Tradition Fall 1996 and Rav Ronald Warburg, Tradition Summer 2002). In this essay I shall outline a ruling of the Israeli Rabbinical Court of Appeals on this topic and seek to demonstrate that a mainstream view has emerged regarding this issue.
A man who had been previously married and fathered three children remarried a woman who was not previously married. This Israeli couple was not able to produce children naturally and began the process of IVF. After a difficult process where the eggs were harvested from the wife, the husband contributed his material and a number of preembryos were created. Two attempts to implant the preembryos were not successful. Two years passed and a major crisis emerged in the relationship which led to the husband to file for divorce, which the wife contested. The district Beit Din ruled in favor of the wife and rejected the request for divorce and did not even issue a recommendation to divorce.
The husband, however, requested an injunction on the preembryos being implanted in the wife, which the Beit Din granted. The Beit Din recommended, however, that the husband should, as an act of Gemilut Chassadim (kindness), permit the wife to implant the preembryo and afford her the opportunity to have a child that she so deeply desires. The Beit Din noted, though, that such Gemilut Chassadim cannot be compelled since it is a Mitzvah whose reward is outlined in the Torah, and whose performance therefore cannot be compelled (Chullin 110b and see Tosafot Bava Batra 8b s.v Achpei).
This ruling was appealed to the Israeli Rabbinic Court of Appeals (see Gray Matter 3 pages 246-248 for a discussion of this fascinating institution) and each of the Dayyanim (rabbinical judges) published the reasoning for his opinion in volume 22 of Techumin. We shall begin with the approach of Rav Avraham Sherman who divides this question into four issues.
The wife’s attorney argued that the couple by virtue of its creating preembryos has created a partnership. He cited Shulchan Aruch (Choshen Mishpat 176:15) which rules that a partner may be compelled to complete the project begun by the partnership. For instance, if two individuals entered a partnership to build a home, a partner who wishes to abandon the project may be compelled by Beit Din to complete it.
The husband’s attorney on the other hand, cited a ruling by Rav Shaul Yisraeli (Teshuvot Chavat Binyamin 3:108) who rules that in case the couple has divorced, the man may object to implanting the preembryo into his former wife. In such a case, argues Rav Yisraeli, the situation is one of Oness (circumstances beyond one’s control) in which a partner would not be compelled to complete the project. In our case, the husband’s attorney argued that since it was inevitable that the couple will divorce (the wife even agreed to divorce in exchange for the husband’s consent to the preembryo implantation) one could argue that the situation is classified as Oness.
However, the right to claim Oness to excuse one from his partnership obligations based on an issue that emerged after the partnership was created, is disputed by quite a number of authorities. Rav Yoezer Ariel (in an essay published in Assia 5761), Rav Warburg (ad. loc.) and Rav Itamar Warhaftig (Techumin 16:181) all note that Halacha does not allow for unilateral withdrawal from a bilateral agreement based on Oness. For example, one cannot retroactively void the sale of an automobile if the motor failed after the transaction was completed (if the failure was not due to a preexisting condition). One cannot claim that I would have never purchased the car had I known its motor would fail (see Tosafot Ketubot 47b s.v. Shlo Katav for a full explanation of this fundamental matter).
Rav Sherman argues, however, that the partnership has fundamentally changed for a couple whose marriage failed after it began the process of IVF. The original agreement was to create a family. However after the failure of the marriage (when the husband no longer wants to have a child with his wife), the partnership would be characterized as one to facilitate the wife having a child. Rav Sherman asserts that the husband agreed to create a family but did not consent to simply facilitate the wife having a child.
A Husband’s Obligation to Provide his Wife with Children
Even though a woman is not obligated to have children, Halacha endows a wife with a right to demand the husband provide her with children. The Gemara (Yevamot 65b, codified by Shulchan Aruch Even Haezer 154:6) states that the wife may claim she needs “a staff to lean on [when she ages] and a shovel to bury her”. On this basis the wife’s attorney claimed that since the couple is still married (and the Beit Din did not even issue a recommendation for divorce) the Beit Din should compel the husband to permit the preembryo implantation as part of his obligation to provide her with children.
Rav Sherman counters that Halacha only compels a husband to attempt to provide his wife with children in a natural manner. He cites a ruling of Rav Shlomo Zalman Auerbach (Noam 1:158; also see his ruling cited in Nishmat Avraham 5:113) that a couple cannot be compelled to have children using artificial means such as intrauterine insemination. Rav Sherman notes that the highly regarded Dayan, Rav Chaim Zimbalist (cited in the Encyclopedia Refu’it Hilchatit entry of artificial insemination) agrees to this approach. Rav J. David Bleich and Rav Eliyahu Bakshi Doron have also adopted this approach.
Chessed and Halachic Public Policy Concerns
Rav Sherman rejects the district Beit Din’s recommendation to the husband to permit the implantation as an act of Chessed. He notes the celebrated Gemara (Eiruvin 13b) which cites the conclusion of a debate that raged between Beit Shamai and Beit Hillel for two and a half years as to whether it is better for man to have been created or not. They concluded that “it is better (see Taz Orach Chaim 46:4 for this translation as well as a Halachic application of this passage in the Gemara) for one to have not been created than to have been created”. Rav Sherman argues that a child is certainly better off not being born into a situation of conflict in which his father does not even want him to be created.
Moreover, Rav Sherman cites a ruling of Rav Yosef Shalom Eliashiv that IVF is permitted only for couples who have not fulfilled the Mitzvah to have children. Rav Sherman explains that Rav Eliashiv permits IVF to help a couple create a family and not merely for a woman to have a child. Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 4:186) and Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 15:45 and see Gray Matter 2 page 105 footnote 5) subscribe to this approach as well. Rav Sherman argues that since it seems inevitable that this couple will divorce, producing a child in this circumstance violates Halachic values and policy.
These rulings seem to emerge from a comment made by the Sefer HaChinuch (Mitzvah 582) that Hashem wants children produced by males and females who unite in a Kosher manner. Hashem does not want children produced by single women simply to satisfy their need to have children. For example, Rav Yigal Shafran (Techumin 20:347-352) on this basis objects to harvesting sperm from a husband who died childless in order to provide his widow with children. Rav Elazar Meyer Teitz similarly told me to advise a single woman who asked me if it is permissible for her to conceive a child through artificial insemination, that the Torah objects to having children in such a manner. Rav Teitz stated that regarding that it is better in such a case for the child not to be born.
Rav Shlomo Dichovsky’s Opinion
Rav Dichovsky, on the other hand, rules that the implantation should be permitted even absent the husband’s consent. He argues that once the egg has been fertilized it attains a life of its own and neither husband nor wife retains any ownership rights in the fertilized eggs. Rav Dichovsky asserts that therefore neither the husband nor the wife enjoys the right to destroy the preembryo.
Furthermore, Rav Dichovsky argues that since the couple is still married and a Beit Din has not even recommended divorce, the husband’s obligations to his wife remain in full effect. Moreover, he believes that infertile couples are obligated to undergo any viable method to have children and that either husband or wife can demand that the other spouse expend whatever financial resources and anything else that is necessary in order to have children.
Regarding the argument that it is better for such a child not to be born, Rav Dichovsky writes “just as no one would justify an abortion in such circumstances, so too no one should prevent the continued development of a fertilized egg”. Rav Dichovsky concludes “in my opinion, also from a moral perspective, we do not enjoy the right to destroy a kernel of life, for whatever reason”.
Response to Rav Dichovsky’s Opinion
Rav Dichovsky’s opinion appears to lie beyond mainstream opinion of Halachic authorities in this matter. He appears to be the lone authority who actually requires couples to undergo IVF in order to have children. In addition, most Halachic authorities permit the disposal of unwanted preembryos. These authorities include Rav Mordechai Eliyahu, Rav Zalman Goldberg, Rav Chaim David Halevy, Rav Moshe Shternbuch, Rav Aharon Soloveitchik, Rav Shmuel Wosner and Rav Shaul Yisraeli (these views are cited in Gray Matter 2 pages 11-112, Rav Warburg’s aforementioned essay and Rav J. David Bleich essay in Tradition Fall 1996).
Although Rav Bleich does not permit discarding unwanted preembryos, the mainstream Halachic opinion seems to support doing so. In fact, both the Orthodox Union and the Rabbinical Council of America in 2001 encouraged President Bush to permit stem cell research on unwanted preembryos and recently applauded President Obama’s decision to allow stem cell research under these circumstances.
The third Dayan on the appeals Beit Din, Rav Shlomo Ben Shimon agreed with Rav Sherman that the Beit Din should not compel and not even recommend the completion of the IVF process in this circumstance. He notes yet another reason to discourage the implantation is that Halacha frowns upon couples engaging in a cooperative venture after their divorce (Shulchan Aruch E.H. 119:7-9). If a couple already have children, Rav Ben Shmon observes, then we have no choice other than the divorced couple continuing to interact. However, in our situation this Halacha provides another reason to discourage this couple from completing the IVF process and having a child.
It is indeed painful to be unable to satisfy the wife’s emotional needs in this and other similar situations. Nonetheless, there is a bigger picture to be considered that favors not bringing children into the world in such circumstances. We should note that the appeals Beit Din did not permit the implantation for a couple that, technically speaking, is still married, how much more so would they forbid such an implantation if the couple was already divorced. It certainly would forbid the husband after divorce from taking the fertilized eggs and having them implanted in his new wife (see Nishmat Avraham 4:186, where Rav Shlomo Zalman is cited as objecting to IVF when the egg was not harvested from the wife).