In Vitro Fertilization by Rabbi Howard Jachter

1996/5756

            The twentieth century has seen life thoroughly transformed in almost every area of human activity.  In turn, Rabannim and Poskim have been confronted with a seemingly endless list of new issues to apply Halacha.  As we approach the close of the twentieth century, Rabannim are challenged by a world that is growing more and more sophisticated and complicated at a pace unparalleled in all of history.  New Sheilot arise virtually every day and Poskim are posed with new and great challenges in applying Divine law to new phenomena (see the excellent essay written by Rabbi Feitel Levin "Cheker HaHalacha Be'Idah HaTechnologia HaChadish," Techumin 7:454-584).

            In Vitro Fertilization (IVF) is one of these issues in which Poskim have been grappling for the past decade.  The connection to Parshat וארא is that we find in this Parsha the genealogy of Moshe and Aharon (as well as the שבטים of ראובן, שמעון, and לוי).  Since IVF involves issues of genealogy, it is appropriate to Parshat וארא.  In addition, since the New York Times has recently printed a number of full-length articles on this topic, it is important to present the Halachic issues that are involved. 

            One great contemporary authority, Rabbi Eliezer Waldenburg (Tzitz Eliezer XV:54) writes that the entire procedure is forbidden because it is unnatural.  However, Rabbi Waldenburg's position has gathered little support among Poskim.  This is hardly surprising because the Torah believes that humanity has the right, or perhaps, the obligation to develop the world (see the Ramban's comments to Bereishit 1:82).  Therefore, it is rather surprising for a Posek to forbid an activity because it is natural.  However, major questions are involved in IVF procedures.  These include procuring the husband's sperm in a Halachically acceptable manner, the permissibility of paying a women to donate an ovum, concern for possible mamzerut status of the donor (Rabbi Zalman Nechamia Goldberg, Rabbi David Feinstein, and Rabbi J. David Bleich all told this author that this is not a relevant concern - see Techumin 01:182), and the credibility of a non-observant or non-Jewish doctor's assertion that he used the sperm and/or ovum of a particular person (The involvement of an observant fertility doctor in the procedure is exceedingly helpful).  The major issue of halachic concern is the question of the definition of motherhood.  Many IVF procedures involve one women donating an ovum and after the egg is fertilized in a laboratory procedure with the husband's sperm, the fertilized egg is implanted into the uterus of the wife.  She, in turn, carries the baby and gives birth to the child.  Poskim debate who is considered the mother - the woman who donated the ovum or the woman who gave birth to the child.  We will examine some of the proofs marshalled by contemporary Poskim.

            Targum Yonatan Ben Uzziel, commenting on Bereishit 03:12, records that Rachel conceived and was carrying Dinah, and Leah conceived and was carrying Yosef.  Leah prayed on Rachel's behalf and God effected an interuterine transfer of Dinah to Leah's womb and Yosef to Rachel's womb.  Since the Torah records Leah as Dinah's mother and Rachel as Yosef's mother, one could conclude that, according to Targum Yonatan Ben Uzziel, giving birth confers the status of motherhood.  This proof, nevertheless, is not conclusive as Aggadic passages have limited weights in halachic discussions (see Jerusalem Talmud Peah 2:6 which states אין למידין מן האגדות and Encyclopedia Talmudit 1:26).

            The Talmud, in מגילה יג., interprets the pasuk which mentions that Esther's parents died and also that she had no mother or father.  The Talmud resolves the apparent redundancy by explaining that the Pasuk is seeking to teach that Esther never had a parent.  When she was conceived, her father died and her mother died in childbirth.  Rashi explains that at the moment at which she could be defined as a mother she died.  This seems to indicate that the act of giving birth confers the status of motherhood.  One is reminded, of course, that this is an Aggadic passage.

            The strongest proof to those who argue that giving birth confers the status is formulated by Rabbi Zalman Nechemia Goldberg (תחומין ה:רנב).  He cites יבמות צז:, which states that twins who were conceived when their mother was not Jewish, but their mother converted during the pregnancy, are considered to be Halakhic half-brothers from their mother's side.  The question is when was the maternal relationship established.  It cannot have been established at the time of conception, as conversion eliminates any previous familial relationship (גר שנתגייר כקטן שנולד דמי).  We must conclude, then that the maternal relationship was established at birth.

            Rabbi Ezra Bick (Techumin 7:762) disputes these two proofs.  He argues that birth establishes or completes a maternal relationship only if the woman who gave birth to the child donated the maternal genetic material.  The Gemarot in Megilla and Yevamot are speaking of such a case.  Rabbi Bick, in turn, cites חולין ע. where the Talmud discusses the question of a fetus transferred from one animal to a second animal.  The Talmud states that the fetus is not the offspring of the second animal (לאו דידיה), despite the fact that the second animal gave birth to the fetus.  One concludes, Rabbi Bick reasons, that birth does not confer the status of motherhood upon a woman who has not provided the maternal genetic material to the child.  A counter-argument could be that in the case of חולין ע., removal of the fetus from the first animal constitutes an act of birth and that the second animal acted merely as an incubator.  One could hardly say, however, that the harvesting of an ovum from a woman is considered to be an act of birth (also see Rabbi Bick's fascinating essay that was published in the Fall 3991 issue of Tradition where he offers a novel approach to argue that the woman who gave birth is the halachic mother).  Rabbi Aharon Lichtenstein and Rabbi Mordechai Willig both told this author that they believe that the woman who donates the ovum is the halakhic mother.  Rabbi J. David Bleich points out that the Yevamot passage merely proves that birth can establish a maternal relationship.  It does not prove that birth is the only way to establish a maternal relationship.  Accordingly, Rabbi Bleich suggests that perhaps both birth and conception can establish a maternal relationship.  Hence, it is possible that in the case of IVF, the child has two mothers!

            An Aggadic source, נדה לא., is cited to show that the woman who donates the  ovum is considered the mother.  The Talmud, in a well known passage, describes the physical attributes that each of the "three partners" - God, mother and father provide for the child.  The Talmud takes it for granted that the mother is the one who contributes to the genetic makeup of the child.  Of course, since the passage is Aggadic, its halakhic impact is limited.  One can conclude from our brief survey of some of the proofs cited by Poskim, that neither side has demonstrated its position in a conclusive manner.  Hence, absent a consensus of opinion at this point, Rabbi Zalman Nechemia Goldberg (Techumin 01:182), Rabbi David Feinstein (personal communication), and Rabbi J. David Bleich (personal communication), rule that one must be strict according to both opinions.  Accordingly, if the donor of the ovum is not Jewish, the child must be converted.  If it is a girl that is converted, the possibility must be raised that a Kohen may not marry her (see Rabbi Zalman Nechemia Goldberg, Techumin 01:082).  On the other hand, if donor is Jewish, then records must be kept to avoid consanguinity (see Rabbi Z. N. Goldberg, Techumin 01:372-182).

           A number of major issues emerge from process of IVF. The Poskim discuss the propriety of discarding extra fertilized eggs. Rabbi Z.N. Goldberg told his author that he believes that a fertilized egg does not have the status of human life. He reasons that since an act is required to occur (implantation in a woman's womb) in order for the fertilized egg to develop, its status is not analogous to fertilized ovum in the mother's womb which develops independently.

            Another complex issue that arises when, as often occurs in the process of IVF, the woman carries many fetuses at once. In many cases, if some of the fetuses will not be eliminated, they will all die. A survey of Rabbinic opinion on the permissibility of reducing the amount of fetuses in such a situation can be found in the Spring 4991 issue of The Journal of Halacha and Contemporary Society in an essay written by Yitzchak Mehlman. The Spring 5991 issue of Tradition contains an essay by Rabbi J. David Bleich on this issue. As is evident from our discussion, IVF constitutes an extremely sensitive area of both halacha and human emotions. Only close cooperation between one's Rav and a leading Posek  can help a couple through this difficult procedure with competent and sensitive halachic guidance.

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