Responsa

NARR 142-146

CCAR RESPONSA

New American Reform Responsa

91. Financial Responsibility Toward Jewish Homes for the Aged

QUESTION: Many Jewish institutions for the elderly require that all assets be placed into the custody of the institution before placement can take place. This has resulted in a large number of elderly individuals either refusing to use the institutions or giving their assets to their children before placement. The latter method is often used as a way of evading financial responsibility. The individuals then either become wards of the state or place an undue burden upon the Jewish community which supports the institution. What is the Jewish attitude toward this kind of subterfuge? (Howard Fagin, Temple Sinai Atlanta GA)ANSWER: The law as presently constituted intends to view the state as the care provider of last resort. Although this was the intention of the Congress, the rising cost of care for the elderly and the inability of private institutions to provide adequate care has led to the subterfuge mentioned above. lt is, of course, wrong to cheat the government especially a friendly government or helpful institutions to avoid fiscal responsibility (B K 113 a, b; Or Zarua 110; Solomon ben Aderet Responsa III 165; IV 35,111). This should be considered as genevat daat or possibly outright theft (Hulin 94a; Yad Hil Genevah 18.3; Tur and Shulhan Arukh Hoshen Mishpat 228.6). We must see this matter in the light of various aspects of tradition as well as other factors which may ameliorate this initial judgement. Let us begin by reviewing some economic considerations presented by our tradition. We should recall that the Talmud set a poverty level for those eligible to receive the second tithe. The net worth had to be below 200 zuz or 50 zuz if the funds were invested as capital (M Peah 8.8f; Yad Hil Matnat Aniyim 9.14; Tur and Shulhan Arukh Yoreh Deah 253.1 ff). The party may retain his home, essential household goods and clothing. However, if the household goods are made of gold or silver, they are to be sold and replaced with ordinary ones. The assets must be accessible so a person with property in another place (as for example frozen bank accounts in another land) may qualify for assistance as he/she has no assets in his current domicile (See Bet Yosef to above quoting Isaac of Vienna). This approach of the Talmud and codes is appropriate when sufficient public assistance is available; it demands the depletion of assets and guarantees a safety net. We should note that the tradition indicated that we are not obliged to provide luxuriously for the poor (M Ket 6.8; 67b; Yad Hil Matnat Aniyim 7.3), yet if the individual was once wealthy we should provide some luxuries as this will make poverty more bearable (Yad Hil Matnat Aniyim 7.3; Shulhan Arukh and Tur Yoreh Deah 250.1). We must remember that this legislation dealt with poverty in general and not with our specific problem of the aged who have not been poor, but who may be thrust into poverty because of the inadequacy of the pension/welfare system or due to the high costs of providing elderly and nursing care. We must also be concerned about the psychological implications. The expectations of exhausting one’s resources entirely provide a devastating psychological blow to aged individual. The aged individual independent and middle class to this point will now become destitute and helpless. This person sees himselfherself as a ward of the state or completely dependent upon children even for the most minor luxuries. This may well lead to depression and an early death. Furthermore the children see the institution which will care for their parents robbing them of the hard earned savings of their parents in short period of time. They feel that a disproportionate burden has been placed on their shoulders in the semi-socialist society in which we live. The subterfuge is wrong; as the law is not functioning as intended, it needs to be changed. This is especially necessary in this case as the old system has broken down and has led to a general disrespect for the law. However, until that change occurs we must deal with the morality of the present situation and reality as we find it. We should discourage aged parents from committing genevat daat. If they nevertheless leave all assets to their children before placement, an increased financial responsibility falls upon the children especially if major assets were involved. Although no secular law may demand sizable contributions toward the care of their parents Jewish law does make such demands. Rabbi Meir of Rothenburg indicated that charity must begin with close relatives; parents are first, then brothers and sisters; other relatives follow, and the total stranger comes last (Responsa Vol ii p 118 f; Yad Hil Matnat Aniyim 7.13; Seder Elijahu Chap 27 p 135; Tur and Shulhan Arukh Yoreh Deah 251).It was normal in medieval Europe to support family members from the tithe allocated to the poor (Meir of Rothenburg Responsa (ed) Bloch #75 p 10b; Isaac of Vienna Or Zarua Tzedaqah Sec 26). The community could go to considerable length to force a son in this direction. Solomon ben Aderet, for example, suggested that the synagogue be closed to such a son and he be publicly shamed until he supported his father, yet he should not be placed under a ban (Responsa Vol 4 #56). In this case there was some doubt about the economic deprivation of the father. Somewhat similarly, David ben Zimri felt that children could be compelled to support their parents in a manner appropriate to the financial status of the children (Responsa Vol 2 p 664). A decision akin to this was rendered much later by Moses Sofer (Hatam Sofer Yoreh Deah #229). It further indicated that anything which the son possessed must be placed at the disposal of the parents. These situations dealt with a society in which no social services existed and individuals might be left completely helpless. Our situation is somewhat different yet our communities may make reasonable demands of the children. We do not expect them to support their aged parents alone, but we can also not permit financial abandonment. The community may exert both moral and social pressure in order to bring about appropriate support according to the means of the children. This will bring enhanced support for the homes for the aged within our Jewish community and be in the spirit of our tradition.March 1989

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 310-311

CCAR RESPONSA

New American Reform Responsa

195. An Old Israeli Flag

QUESTION: An Israeli flag which has stood on our pulpit for some time is now worn-out. How should we dispose of it? (Morton Kramer, Los Angeles CA)ANSWER: Special honors have been accorded to the various appurtenences of the synagogue which possessed different degrees of sacredness. Sacred texts and the Torah were buried or set aside in a safe place (Rashi to Ket 19b; Shulhan Arukh Orah Hayim 154.5). They were sometimes interred with a scholar. Items which were a little more distant like the cover of a Torah and binder were also sometimes buried with a scholar. Still other synagogue decorations, as for example the cover of the bimah, could be renewed, and the old item discarded. Although the Israeli flag may stand on the bimah, it does not possess any degree of sacredness. It is a symbol of the State of Israel, but has no specific religious connotations, so we need exercise no unusual care for religious reasons. Of course there are the normal reasons for disposing of a flag in an appropriate way. We do so with the American flag in accordance with specific regulations about the flag, and would accord similar respect to the flag of Israel. The attitude toward flags has changed in various periods as we have seen from recent discussions about the burning of the American flag, as well as its use on shirts and jackets, etc. There is no degree of sacredness connected with the Israeli flag despite its place on the pulpit. We should dispose of a worn flag in a dignified manner, but not as a sacred object.December 1989

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5757.1

CCAR RESPONSA

Loyalty to One’s Company Versus Love for Israel

5751.1

She’elah
A congregant works for a company which is developing some technology systems with military applications for Arab countries which do not have peace treaties with Israel. He is torn between loyalty to the company for which he works and his devotion to the Jewish people and the State of Israel. He would like to inform discreetly someone in the Israeli consulate, but he is also concerned about his job security: he has a wife and three children, and he would clearly lose his job were it discovered that he leaked information.

Teshuvah
Our sho’el seeks to draw a proper balance between conflicting loyalties and loves. In his concern for the State of Israel, he expresses a feeling that is central to our religious consciousness as Jews and as Reform Jews. The history of modern Zionism in general and of our own movement’s relation to it has been a complex one, but there is no question of our love for the State of Israel and of our full acceptance of its essential and pivotal role in the life of the Jewish people and in the minds and hearts of its members.[1]The issue is whether this love for Israel enjoys a kind of absolute status in the life of the Jew, taking precedence over other legitimate commitments.

 

Our she’elah suggests at least two of these “other commitments.”

1. Citizenship and The Law of the Land. The sho’el wishes to “inform discreetly someone in the Israeli consulate” about his employer’s business dealings. Since it is not illegal under normal circumstances to do business with countries with which one’s government maintains diplomatic relations, we presume that the company is acting within the limits of American law. On the other hand, it is possible that the sho’el himself would violate the law of the United States or of his local jurisdiction by revealing company secrets. This possibility raises the element of our duty to obey the laws of the land in which we live. Does this duty supersede or give way to our obligation to care for Israel?

Both the Bible (“seek the peace of the city to which I have exiled you”)[2] and the rabbis (“pray for the welfare of the government, since but for the fear of it people would swallow each other alive”)[3] discuss the need to show respect to the state within which we live. Yet these statements do not take us very far. The “city” and the “government” of which they speak refer to the Babylonian and Roman conquerors of the Jewish state, and the attitude they recommend is one of prudence, a recognition of the realities of power, rather than that sense of positive loyalty which the citizen is supposed to feel toward his or her political community. The more appropriate citation for our context is the classic talmudic principle dina demalkhuta dina, “the law of the state is the law,” binding upon us as well as upon its non-Jewish inhabitants.[4] Whatever its specific historical origin,[5] this principle asserts the legal validity, under Jewish law, of a wide range of acts taken by a Gentile government in the field of civil or monetary law (dinim or diney mamonot). At first glance, this notion is somewhat surprising. Jews, after all, have their own legal system, whose integrity and autonomy they are forbidden to undermine by submitting their disputes to Gentile jurisdiction.[6] For this reason, although the Talmud does not offer a legal theory to justify the principle, we find several explanations of it among the medieval authorities. The most important of these are the following:

1. Rashi writes that since Gentiles are obligated, under the doctrine of the “Noachide laws,” to establish courts and to administer justice, our own courts can recognize as valid the legal acts undertaken by non-Jewish authorities in fulfillment of this duty.[7]

2. Several Ashkenazic scholars advance the theory that the land is the personal property of the king or prince, who is therefore empowered to make whatever laws he wishes.[8]

3. Sages of the “Nachmanidean school” in northern Spain, 13th-14th centuries, draw a comparison between Gentile kings and the king of Israel. Just as the latter are bestowed by God with certain powers necessary for the proper functioning of the state, so too do the former exercise all appropriate royal authority.[9]

4. R. Shmuel ben Meir (Rashbam), a grandson of Rashi, holds that the law of the state is valid in our eyes because “all those who dwell in the kingdom willingly accept the king’s laws and statutes.”[10]

This latter explanation accords with the political theory, current in early medieval Europe, that the power of the ruler emanates from the people and is effectively controlled and limited by their agreement to recognize him as ruler.[11] It also corresponds quite closely to our own understanding of our contemporary political situation. Those of us who live in democratic states in the Diaspora[12] regard ourselves as citizens, as fully participating members of the political community. We, together with our fellow citizens, constitute the state; the government is our agent, put in place to give effect to our political will. The law of the state is therefore a law of our own making, because in contracting together with our fellow citizens we imply our acceptance of that law and its binding authority. This does not mean, of course, that we are in agreement with every decision made by our governments or that we believe that every law enacted is a good one. It means rather that the malkhut itself is legitimate and its law is law, not because these have been imposed upon us against our will but because we ourselves, the citizens of the state, are the malkhut and the legislators who make our political decisions through a process upon which we have agreed beforehand. Our consent to the outcome of this process–that is, to the laws duly enacted by the state–is thereby implied in advance.

Our sho’el is a citizen of the United States. As such, according to our understanding of the principle dina demalkhuta dina, the laws concerning espionage are laws of his own making; he is bound to obey them because in theory he has enacted them through his participation in the political life of his country. In other words, if by “discreetly informing” the Israeli consulate he would violate American law, he would also transgress against Jewish legal teaching concerning the law of the state.

 

2. Limitations On the Validity of the Law of the State. The principle dina demalkhuta dina does not confer absolute recognition upon any and every “law of the state.” In order to count as legitimate under the halakhah, the “law” must be a legitimate one: that is, it must apply equally to all, drawing no unfair distinctions among the residents of that political community,[13] and it must be accepted as flowing from the established, previously recognized powers of the regime.[14] In addition, Jewish law traditionally limits the application of this principle to monetary law and does not accept as valid state legislation touching upon the realm of ritual practice (issur veheter).[15]

None of these limitations are applicable to our case. Laws which prohibit the unauthorized transfer of confidential information to representatives of foreign governments are not inherently unfair or discriminatory. They are not unjustly and specifically directed against Jews or the state of Israel. They are based upon the desire of a state to protect itself, its people and its institutions from external threat. Since this desire is surely a legitimate one, expressing the “established, previously recognized powers” reserved to all governments, then so long as it has been enacted through the accepted and recognized legislative processes the citizens of the state can be said to acquiesce in the adoption of such laws. To be sure, one might well criticize the wisdom of any particular law or governmental act. It might arguably be better to exempt the government of Israel or of other friendly states from anti-espionage statutes. Yet this is beside the point. The fact that a state might have enacted a better law does not necessarily mean that the law it has enacted is “invalid” from the viewpoint of the Jewish legal tradition. Laws banning espionage, should they be involved in this case, are indeed a legitimate exercise of a state’s authority, and the halakhah would therefore regard them as binding upon Jews as they are upon all other citizens.[16]

3. Concern for Israel vs. Concern for One’s Family. Let us suppose, however, that the sho’el would violate no laws by informing the Israeli consulate of his company’s business activities. At this point, he must draw a balance between his concern for the State of Israel and his duty to provide for his family, since to reveal this information would likely cost him his job.

Clearly, the balance here depends upon a precise measurement of the facts (how threatening are these military applications to Israel’s security? to what degree is one’s job in jeopardy?), a measurement that we are in no position to make. The sho’el can, however, find some guidance in the traditional order of priorities for the distribution of tzedakah, which teach that when one must choose between otherwise equally-deserving recipients, one’s own relatives take precedence over all others.[17] We might observe, too, that while the sho’el‘s failure to transmit this information may or may not pose a significant degree of danger to Israel, the loss of his job and the fear of poverty constitute real and concrete risks to himself and his family. In this instance, we are on solid ground when we grant priority to real danger (vada’i sakanah) over potential or uncertain danger (safek sakanah),[18] thus permitting concern for the family’s welfare to come first.

Conclusion. One’s love for the State of Israel does not necessarily outweigh other vital religious moral responsibilities. As is always the case when our responsibilities conflict, we must arrive at a balance among the priorities they set for us. In this case, the sho’el is under no religious or moral obligation to risk his job and the welfare of his family by informing Israeli government officials of his company’s business activities with Arab states. And, should such informing violate a statute of American law, his action would transgress the principle of dina demalkhuta dina. He is an American citizen, and Jewish tradition permits and expects him to act as such.

Yet nothing we write here should be construed to mean that we hold love for Israel to be a trivial or an insignificant thing. Far from it: the attachment we feel to the State of Israel and its people is one of the most powerful motivating factors in our Jewish religious lives. The Platform on Reform Religious Zionism, adopted by the CCAR on June 24, 1997, is but the latest in a series of official expressions of Reform Judaism’s devotion to Israel,[19] to the security and well-being of its citizens, and to the hope that the building of a just and righteous society in the land of Israel will allow the Jewish state to continue to serves “as the spiritual and cultural focal point of world Jewry.” Because “we stand firm in our love of Zion,” we should seek ways to express that love that are consonant with our other deeply-held religious and moral commitments. The Platform suggests some of these ways:[20]

1. Lending Israel our continued political support and financial assistance.

2. Promoting the knowledge of Hebrew in all our communal institutions.

3. Implementing educational programs and religious practices that reflect and reinforce the bond between Reform Judaism and Zionism.

4. Studying in Israel and visiting there when we can

5. Facilitating aliyah (immigration to Israel).

This is a list, clearly not an exhaustive one, of means by which we can contribute to Israel’s strength and insure that the bonds linking us to the Jewish state will never be broken. We encourage the sho’el, as we would encourage all Jews, to turn his energies and his Jewish devotion to the fulfillment of these goals.

NOTES

1. This is not the proper venue to rehearse the this history, summarized quite well by David Polish, Renew Our Days: The Zionist Issue in Reform Judaism (Jerusalem: World Zionist Organization, 1976). Suffice it here to note the language of the great doctrinal statements of our movement. While the Pittsburgh Platform of 1885 renounced any vestige of Jewish nationhood or desire to restore the Jewish state, the Columbus Platform of 1937 affirmed “the obligation of all Jewry to aid in [Palestine’s] upbuilding as a Jewish homeland…”. The “Centenary Perspective” of 1976 noted that “we are bound to…the newly reborn State of Israel by innumerable religious and ethnic ties…we have both a stake and a responsibility in building the State of Israel, assuring its security and defining its Jewish character.” Finally, the document known as “Reform Judaism and Zionism: A Centenary Platform,” which will be voted upon by the CCAR but which at this writing exists in draft form, declares that “the restoration of Am Yisrael to its ancestral homeland after nearly two thousand years of statelessness and powerlessness represents an historic triumph of the Jewish people, providing a physical refuge, the possibility of religious and cultural renewal on its own soil, and the realization of God’s promise to Abram (Gen. 12:7)…From that distant moment until today, the intense love between Am Yisrael and Eretz Yisrael has never subsided.”

2. Jeremiah29:7.

3. M. Avot 3:2.

4. This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.

5. Shmuel flourished during the rule of the Sassanian King Shapur I (242 C.E.), who relaxed his government’s strictures against the Jews and granted legal and cultural autonomy to the Jewish community. Shmuel was on friendly terms with the king, and his position that dina demalkhuta dina may have been part of his attempt to persuade the Jews to come to terms with the regime. See Jacob Neusner, A History of the Jews in Babylonia (Leiden: Brill, 1965-1967) 2:16, 27, 30; S. Shilo, Dina demalkhuta dina (Jerusalem: Defus Akademi Yerushalayim, 1975), 4-5.

6. BT Gitin 88b, from a midrash upon Ex. 21:1; Yad, Sanhedrin 26:7; SA CM 26:1. On the other hand, Jewish law does not ignore the realities of our political powerlessness. A litigant is permitted to resort to the Gentile authorities when, due to the defendant’s refusal to obey the orders of the beit din, justice cannot be achieved justice in the Jewish court (Yad loc. cit.; SA CM 26:2).

7. Rashi, BT Gitin 9b, s.v. kesherin and chutz migitey nashim. The latter statement makes clear as well that the principle dina demalkhuta dina applies only to dinim and not to the realm of Jewish ritual law; see below, in our discussion of the limitations upon the scope of the principle.

8. R. Eliezer of Metz, cited in Or Zaru`a, Bava Batra, ch. 447; Resp. Maharam Mirotenburg, Prague ed., no. 1001; Lemberg ed., no. 313; Hil. Harosh, Nedarim 3:11; R. Nissim Gerondi to Nedarim 28a, s.v. bemokhes ha`omed me`alav, quoting “Tosafot.

9. See the novellae (chidushim) of Ramban, Rashba, Ritva, and Ran (R. Nissim Gerondi) to Bava Batra 55a; Resp. Rashba 2:134 and 3:109; and Derashot Haran, no. 11. See BT Sanhedrin 20b, where Shmuel declares that “everything mentioned in the description of the king’s powers (parashat melekh; I Samuel 8:11-17) is permitted to him”, and Yad, Melakhim 4:1.

10. Rashbam, Bava Batra 54b, s.v. veha’amar shmuel dina demalkhuta dina. Compare to Rambam (Yad, Gezeilah 5:18), who also attributes the validity of the laws to the fact that the people have willingly accepted (hiskimu alav) the king’s jurisdiction. His language differs from that of Rashbam in that he refers to the people’s agreement that “he will be their master (adoneyhem) and they will be his servants (avadav).”

11. See Walter Ullmann, A History of Political Thought: The Middle Ages (Baltimore: Penguin, 1965), 12-13, who contrasts this conception of law, which he terms the “ascending theory,” with the competing “descending theory” which posits that all political power originates “at the top” and is bestowed by its possessors upon their chosen representatives. The second of the rabbinic explanations, which describes the king as the “owner” of the kingdom, corresponds quite closely to the “descending theory.”

12. Although the principle dina demalkhuta dina originally addressed the reality of a Gentile government in the golah, there is some controversy in the literature as to whether that conception can serve as the theoretical basis for the powers of a Jewish government in the land of Israel. For examples of recent rabbinical scholars who answer “yes” to this question, see the journal Hatorah vehamedinah 1 (1949) 20-26, 27-41,42-45; 5-6 (1953-1954) 306-330; and 9-10 (1958-1959), 36-44. In general, see Shilo, 99-108.

13. See Yad, Gezeilah ve’aveidah 5:14: “a law enacted by the king that applies to all and not for one particular person is not to be regarded as theft (i.e., illegal confiscation of property).” See also Or Zaru`a, Bava Batra, ch. 447, in the name of Rabbenu Tam.

14. See Hagahat Mordekhai, Bava Batra, ch. 659 (fol. 57, col. b, bottom), in the name of R. Tam and R. Yitzchak of Dampierre: “anything instituted by the rulers that is in accordance with the accepted law (al pi din kedumim) is valid law (din gamur hu).” The point is not that the act of legislation itself must be old or that the legislator is forbidden to enact new statutes. Rather, the enactment must be generally accepted as a legitimate exercise of powers that already enjoy “constitutional” recognition (as measured by din kedumim) in that political community. Compare to Yad, Gezeilah ve’aveidah 5:14. And see, in general, Shilo, 191ff.

15. See Shilo, 115ff. For this reason, traditional halakhic authorities have not applied the principle dina demalkhuta dina to the area of marital law (one of issur veheter) in order to accept the validity of civil divorce. The Reform movement in the United States has indeed accepted civil divorce, but precisely on the grounds that divorce has always been regarded in the halakhah as a matter of monetary, rather than ritual law. This argument can be contested, but it does show that Reform thinking on the subject of divorce has followed the lines of the traditional halakhic structure. On the history of Reform and the divorce question see ARR, no. 162; Moses Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times (Cincinnati: Bloch, 1884); and R. Solomon Freehof, Reform Jewish Practice I, 99-110.

16. This responsum does not discuss the issue of civil disobedience, the right (as justified by appeal to morality, natural law, “higher” law, etc.) to refuse to obey a particular law enacted by the state. The reason is that in this particular case, there appear to be no grounds for “conscientious objection” to a law that would forbid the revelation of business secrets: such a law would not be unfair or discriminatory; it represents an exercise of legitimate (i.e., recognized and accepted) state power; and as it does not violate a fundamental tenet of Jewish ritual law it does not violate a Jew’s freedom of religion. For this reason, the sho’el as a citizen can be said to have acquiesced in its enactment, thus stipulating his obligation to obey it.

Having said this, we would point out that the subject of civil disobedience in general is worthy of careful consideration. In this context we would note simply that, based on the theory that a Jew is a citizen like all others, there can be no distinctions between Jews and Gentiles in this regard. That is, if civil disobedience is ever justified, it is justified for all citizens. The principle dina demalkhuta dina cannot be interpreted so as to discriminate against the Jewish citizens of the state, denying to them any right, such as that of civil disobedience, that is enjoyed by all other citizens.

17. BT Bava Metzi`a 71a; Yad, Matanot Aniyim 7:13; SA YD 251:3.

18. See R. Yosef Teomim, Peri Megadim, Mishbetzot Hazahav (OC 328, near the beginning): when confronted with two patients, one of whom is in mortal danger (yesh bo sakanah) while the other is not, and we have but enough medicine to treat one of them, we treat first the patient who is in greater danger.

19. “The Platform on Reform Religious Zionism,” along with its Hebrew text (Hayahadut hareformit vehatziyonut) is published in CCAR Yearbook 106 (1997), 49-57. The Preamble to the Platform (Hebrew, p. 49; English, p. 54) notes that this is hardly the first official statement by the Conference on the subject of Zionism and Israel. The rigidly anti-Zionist stance of the Pittsburgh Platform of 1885 was decisively rejected in the Columbus Platform of 1937 and the Centenary Perspective of 1976.

20. “Platform,” p. 51 (Hebrew) and p. 56 (English).

 

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 31-32

CCAR RESPONSA

Contemporary American Reform Responsa

19. In Vitro Fertilization with Cousin’s

Ova*

QUESTION: A couple is unable to have children. The wife’s first

cousin had agreed to donate ova for in vitro fertilization with the husband’s sperm. It will be subsequently implanted into the wife’s womb. Is there a question of incest? (Rabbi H. Silver, West Hartford, CN)

ANSWER: The question of artificial insemination has

been dealt with in two responsa by Solomon B. Freehof and Alexander Guttman in 1952 (W. Jacob, American Reform Responsa, #157, 158). There are, however, two substantial differences between the question raised here and these responsa. In that instance the sperm of a stranger was used to fertilize the ova of the wife; the situation here is reversed as the husband’s sperm will be used and the ova will be that of another person. Secondly, in the previous responsa the donor was not known while here the ova of the cousin will be used. As the source of the ova is known, one of the traditional objections to artificial insemination is removed. Orthodox authorities fear that the youngster produced by such insemination might inadvertently marry incestuously. In this case, as he would know his ancestry, that could not occur.

Now we must ask whether it is possible to use the ova of the wife’s first

cousin. It is clear that in the days of bigamy or other forms of multiple marriage like concubinage, it was possible for a first cousin to marry the same husband. The details of concubinage are discussed in a separate responsum (W. Jacob, American Reform Responsa, # 133). Polygamy has, of course, been prohibited for Ashkenazic Jews since the decree of Rabenu Gershom in the eleventh century. If it were still permitted offsprings of such a marriage would be considered kasher In this instance no marriage will take place; the ovum will be fertilized in vitroand then placed in the womb of the wife.

We must carefully

consider some other potential problems, however. As the source of the ovum will be known to both the parents and possibly the child, this may cause psychological difficulties. In case of normal family strife, will this situation aggravate matters? Are any pressures for donation being applied to the cousin? These and other issues must be carefully discussed with competent experts and a good deal of counseling must occur with the couple and also with the prospective donor. As the current divorce rate is high it would be wise to discuss this possibility and its ramifications also, painful though it may be. The possibility of a defective child should also be discussed.

Peru ur’vu is of course a major mitzvah and children are

mentioned as an essential element of marriage many times by the traditional sources (M. Ye. 6.6; Nidda 13b; Ket. 8a; Yeb 61b; Yad Hil. Ishut 15.6; Tur and Shulhan Arukh Even Haezer 1.5) and lack of children was considered grounds for divorce (Shulhan Arukh Even Haezer 1.3 f, 154.10) although others disagreed. The mitzvah may, of course, be fulfilled through adoption (“Adoption and Adopted Children,” W. Jacob, American Reform Responsa, # 63); this couple has chosen a different route. We would give reluctant permission to use in vitro fertilization in the manner you have described. The potential problems are numerous and should lead to great caution.

November

1986

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5757.2

CCAR RESPONSA

In Vitro Fertilization and the Status of the Embryo

5757.2

She’elah

In the procedure known as in vitro fertilization (IVF; the “test tube baby”), human ova are removed from the womb and placed in a petri dish, where they are fertilized with sperm. The usual procedure is to choose the “best” of these embryos or zygotes for implantation into the womb (of either the ovum donor herself or of a “host mother”) and to discard the rest.

What is the status of the zygote with respect to “humanhood”? May those zygotes not chosen for implantation be used for medical research? May they be offered to another couple, and if so, who are ultimately the parents of the child? Perhaps we should be guided by the ruling of Rav Hisda in BT Yevamot 69b that prior to forty days gestation the human fetus is but “mere water” (maya be`alma) and does not warrant independent status under halakhah. (Rabbi Thomas Louchheim, Tucson, AZ)

Teshuvah

The development of the procedure of in vitro fertilization, which creates and maintains a human embryo outside the womb, raises many difficult religious and moral questions, some of the most important of which are noted in our she’elah. In addressing them, we as rabbis must first of all be guided by the Jewish legal tradition, as we understand it from our own liberal Jewish perspective, although we recognize that our tradition may offer but limited practical guidance on issues of this sort.1 And as liberal rabbis, we shall consider as well the findings of contemporary biological science, medicine and genetics.

1. In Vitro Fertilization as a Medical Procedure.

We begin by considering briefly a basic issue implied by our she’elah: the permissibility or advisability of in vitro fertilization as a medical procedure.2 To answer this question, we must address to IVF the same inquiry we apply to all medical issues: does the medical benefit which might accrue from the procedure justify its risks? Jewish tradition teaches us to regard our lives and our bodies as gifts from God and therefore prohibits us from placing them in needless danger3 or subjecting them to unnecessary physical damage.4 These concerns are set aside, of course, in the case of legitimate medical need,5 since medicine is a mitzvah.6 By “medicine” we mean the wide array of chemical, surgical, and other procedures aimed at the correction or control of disease. And by “disease” we mean a condition in which some aspect of our biological or psychological systems does not function properly.7 Accordingly, we may define human infertility as a disease and the procedures designed to correct it as medicine. We might add that since Jewish tradition and Reform Jewish teaching see the birth of children as a blessing to their parents and to the entire community of Israel,8 the development of technologies which enable the infertile to bring children into the world should be similarly be welcomed as a blessing to humankind. Since current information indicates that IVF is not associated with unacceptable risks to either the health of the woman or of the child, we see no reason no oppose the procedure or to issue any warnings concerning it. On the other hand, those considering IVF must take into account the normal medical risks of any surgical procedure, as well as the psychological stress involved in fertility treatments, before they decide to use it.

2. The Status of the Embryo at Less than Forty Days.

Our sho’el is correct that the sources regard a human embryo of less than forty days gestation as maya be`alma, “mere water”, and therefore not a “fetus” (ubar) at all.9 On this basis, a number of authorities are willing to rule more leniently on the question of abortion: that is to say, if we presume a prima facie halakhic prohibition against abortion,10 that prohibition either does not apply or is much less stringent with regard to a fetus at less than forty days following conception.11 By extension, we would expect an even more permissive attitude concerning an embryo which, because it exists outside the womb, is not defined as a “fetus.” This is indeed the case. One leading contemporary halakhist rules that it is forbidden to set aside the laws of Shabbat in order to save the life of an embryo in a petri dish, even though we are permitted to violate Shabbat on behalf of a fetus.12 In a ruling which touches directly upon our own she’elah, R. Chaim David Halevy permits a hospital or clinic to discard “excess” embryos created for purposes of IVF, explaining that the prohibition against abortion relates only to the fetus and not to an embryo maintained outside the womb.13 A similar decision is rendered by R. Mordekhai Eliyahu.14

3. In Vitro Fertilization as Healing (Refu’ah).

We agree with these decisions, but we think it vital to expand their rationale. The absence of an explicit prohibition against destroying an embryo does not in and of itself justify the act of destruction, any more than the definition of an early-stage fetus as “mere water” automatically permits an abortion. Like the fetus, the zygote is not a legal person.15 Yet it most definitely is a person “in becoming,” possessing all the necessary genetic information; it lacks only gestation, development in utero, to realize its biological potential. Rather, just as we require some warrant, however “slim,”16 to abort the fetus, so too we should seek some positive reason to argue on behalf of the destruction of this microcosm of the human being.

We find this reason in the nature of IVF as a form of refu’ah, of healing, a medical response to the disease of infertility. As we have already written, actions which might under other circumstances be forbidden may be undertaken if they constitute a proper element of a therapeutic regimen: in other words, if they are defined as medicine and contribute to the treatment of disease. Thus, although we would certainly oppose the wanton destruction of human embryos, we can permit the discarding of excess embryos as a necessary part of the IVF procedure. We say “necessary” because 1) multiple embryos must be created in order for the procedure to be feasible and effective; and 2) to require that each and every zygote be preserved would likely place a cumbersome burden upon hospitals and laboratories. Under such conditions, many of these institutions would likely refuse to perform IVF, thus rendering the procedure intolerably expensive or simply unavailable to many of those who seek it. Given that our tradition does not expressly forbid the destruction of the embryo, the positive value of IVF as a medical therapy clearly justifies the necessary discarding of excess zygotes.

Moreover, since IVF is a means by which Jews can fulfill the mitzvah of childbearing, for whose sake a number of important ritual prohibitions can be waived,17 we think that our tradition would permit us to discard the excess embryos as a necessary means of enabling Jewish people to build families and bring children into the world.

4. Medical Experimentation.

If in the name of “medicine” it is permitted to discard the excess embryos created during IVF, then it is certainly permitted to utilize these embryos for research intended to increase our life-saving scientific knowledge. We would add the proviso that whether it be discarded or used for research, the embryo be treated and handled with an attitude of respect and reverence that is befitting of that which, after all, a potential person, a nefesh in becoming.18

5. Parenthood.

Who are “ultimately” the parents of a child created by IVF? This question has been considered by several Orthodox halakhists, whose arguments–and our difficulties with them–we summarize here.

R. Eliezer Yehudah Waldenberg rules that a child conceived outside the womb has no parents: it bears no halakhic relationship either to its biological parents or to the “host mother,” the woman who carries the child to term.19 He cites as support a statement by Maimonides in the Moreh Nevuchim that “human organs cannot exist separately from the body and still be regarded as fully human.”20 Thus, an ovum detached from its “natural” place ceases to be a human ovum. He quotes as well the talmudic dictum that “a fetus in the womb of a Canaanite slave is like the fetus of a beast.”21 He interprets this to mean that “no yichus (familial relationship) is possible outside the womb of a Jewish woman”; hence, the embryo created in a petri dish enjoys no yichus or familial relationship at all. Both of these proofs, however, are clearly flawed. In mentioning Maimonides’ philosophical treatise, Waldenberg relies upon the latter’s scientific judgment, the truth of which depends upon its accuracy as a description of physical reality. That judgment, while it may have corresponded to the best available scientific knowledge in the twelfth century, is now outdated; today, it is possible to establish that an organ is “human” by means of chemical and genetic testing. If we wish to base our religious decisions upon scientific information, it is incumbent upon us to use the best science available, as did Maimonides himself, rather than enslave our scientific judgments to standards which science itself has long since abandoned. Waldenberg’s talmudic evidence, meanwhile, does not prove that yichus is created exclusively within a Jewish womb.22 The text speaks instead to the “matrilineal” principle of Jewish descent: traditional halakhah does not recognize the legal bond between a father and his child by a non-Jewish woman. This says nothing at all about the case in which the donors of the biological materials for IVF are both Jews.

Other authorities hold that a child created by IVF is the offspring of the woman who bears it, whether or not she conceived it.23 They base this conclusion upon an analogy to the talmudic passage concerning a woman who converts to Judaism during pregnancy.24 Since “one who converts is like a newborn child,”25 these authors reason that both the woman and her fetus become “newborn”: i.e., all prior families ties (yuchasin) are cancelled, including the relationship between this mother and her fetus. Yet once the child is born the halakhah, for purposes of the law of incest, recognizes it as this woman’s child. The authors infer therefore that it is birth, rather than conception, which in all cases establishes the mother-child bond, so that the child conceived by IVF is the legal offspring of the “host mother.” While this conclusion is open to halakhic criticism (since the sources in question can be interpreted in several different ways),26 we would question the aptness of the analogy itself. Jewish law defines the Jew-by-choice as a “newborn child” for religious rather than for biological reasons. The ger or giyoret who enters our community and embarks upon a life of Torah and mitzvot most definitely becomes a “new person.” In the eyes of the talmudic sages, conversion marked a sharp and irrevocable break with one’s past and with one’s connections to the non-Jewish world. However we understand this concept today, it has nothing to do with the case of an embryo conceived through IVF. This fetus may experience a change of place, but unlike the proselyte it undergoes no transformation of religious status.

We learn two things from these observations. First, rabbinic scholars ought to acknowledge that traditional techniques of halakhic analysis, in particular the case method of reasoning by analogy, are of limited usefulness in an area dominated by technological novelty and innovation. The tortuous logic of the arguments we have just cited demonstrates that there may simply be no precedents or source materials in talmudic literature that offer plausible guidance to us in making decisions about these contemporary scientific and medical issues.27 Second, given our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments. To ask “who are this person’s biological parents?” is to ask a scientific question whose answer is determined according to accepted scientific indicators; i.e., genetic testing. Hence, the biological parents of the child are those who donated the sperm and the egg from which he or she was fertilized.

In the event that a child is born to or raised by parents other than those who donated the sperm and the egg, he or she becomes the adoptive child of those parents. This does not present inordinate difficulties under Jewish law. As we have written elsewhere,28 adoptive parents are a child’s ultimate parents; those who raise, care for, educate and love the child during his or her life assume full parental status. It is to them that the child owes the duty of honor and reverence.29 The child adopted by another couple has no legal or religious relationship to the donors of the egg and sperm, although for personal, medical, and genetic reasons the child or his/her guardian should be permitted to discover the identity of the biological parents at an appropriate time.

Conclusion.

To summarize:

1. A human embryo or zygote is, like the fetus, a potential but not a legal person, and there is no explicit Jewish legal prohibition against its destruction.

2. In vitro fertilization is a legitimate medical therapy, offering realistic hope to many who seek to build families. Since the creation of multiple embryos is a necessary element of IVF, and since the preservation of “excess” embryos may constitute a serious impediment to the availability of this procedure, it is permissible to discard those embryos.

3. The embryo may be used for medical research, provided that it is handled with the proper respect and reverence.

4. The embryo may be offered to another couple. The child will be the biological offspring of the man and woman who donated the sperm and the egg. Those who raise the child are his or her “ultimate” and “real” parents.

NOTES

1 See the article by our colleague David Ellenson, “Artificial Fertilization (Hafrayyah Melakhotit) and Procreative Autonomy,” in W. Jacob and M. Zemer, eds., The Fetus and Fertility in Jewish Law (Pittsburgh and Tel Aviv: Freehof Institute of Progressive Halakhah, 1995), 19-38.

2 This fundamental question has never been addressed to or by the Responsa Committee. Therefore, while our she’elah proceeds on the assumption that the answer is affirmative, we find it necessary to fill this lacuna in our existing literature.

3 See Deut. 4:15, Lev. 18:5 and BT Yoma 85b; Isserles, YD 116:5.

4 M. Baba Kama 8:8; BT Baba Kama 91a-b; Yad Chovel 5:1l SA CM 426:31. An instance of unnecessary physical damage would be purely surgery undertaken for purely cosmetic reasons; see Teshuvot for the Nineties, no. 5752.7.

5 See the following responsa in Teshuvot for the Nineties: treatment for severe pain in terminally-ill patients (responsum 5754.14); medical experimentation under carefully controlled conditions (5755.11); on cosmetic surgery (5752.7); and abortion performed for the mother’s “healing” (refu’at imo; 5755.13).

6 The mitzvah is pikuach nefesh, the saving of human life. See Nachmanides, Torat Ha’adam (Chavel ed.), 41-42, and SA YD 336:1.

7 This suggests that the definition of “disease” is largely a matter of social construction: that part of our biological or psychological systems is functioning “improperly” is a judgment we make based upon a conception of what “proper” functioning is.

8 Gen. 1:28; M. Yevamot 6:6; Yad, Ishut 15:1, and SA EHE 1:1. For Reform Jewish teachings concerning the mitzvah of having children, see Gates of Mitzvah, 11, and American Reform Responsa, no. 132.

9 Rav Chisda’s position in the Talmud is cited as halakhah in Yad, Terumot 8:3.

10 Most halakhic authorities hold that there exists a prohibition (isur) against destroying a human fetus without sufficient cause, although there is a good deal of dispute as to the precise definition and legal basis of this prohibition; see R. A.S. Avraham, Nishmat Avraham, CM 425:2, sec. 1, for discussion. As to the debate over what counts as “sufficient cause” or warrant for abortion, see our responsum 5755.13.

11 R. Ya`akov Emden, Resp. Chavat Ya’ir, no. 31; R. Yechiel Ya`akov Weinberg, Resp. Seridey Esh 3:127 (p. 341); R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 7:48, ch. 1 (pp. 190-191).

12 R. Shmuel Halevy Wasner, Resp. Shevet Halevy 5:47. The permit to perform otherwise forbidden work (melakhah) on Shabbat or Yom Kippur in order to save a fetus is found in Halakhot Gedolot (Laws of Yom Kippur; Warsaw ed., 31c; ed. Hildesheimer pp. 319-320) and cited by Nachmanides (Torat Ha’adam, ed. Chavel, pp. 28-29), who applies it even to a fetus less than forty days old. This would seem to be a contradiction: if it is not forbidden to destroy a fetus at this early stage, on the grounds that it is not a “fetus” at all, how can it be allowed to transgress the laws of Shabbat, an otherwise capital offense, in order to save it? Yet this problem can be resolved, for even at less than forty days the fetus is still a life in becoming, and we are taught that the duty of pikuach nefesh, the saving of life, applies even to cases of safek, when we are uncertain that “life” can be saved by our action (BT Yoma 85b; see Resp. Seridey Esh loc. cit.). Moreover, we might also remove the difficulty by saying that the permit to violate Shabbat and Yom Kippur applies in fact to saving the life of the mother, not that of the fetus (Hil. Harosh, Yoma 8:13; R. Nissim Gerondi to Alfasi, Yoma, fol. 3b).

13 See Sefer Assia 8 (1995), 3-4. Halevy, it should be noted, does not express a clear opinion as to whether the procedure of IVF is itself permitted; he explicitly notes that his ruling applies only to individuals or institutions who “adopt the opinion of those who permit (the procedure).”

14 Techumin 11 (1991), 272-273.

15 “The fetus is not a legal person” (lav nefesh hu); see Rashi, BT Sanhedrin 72b, s.v. yatza rosho, and Sefer Me’irat Eynayim, CM 425, no. 8.

16 The language is purposefully reminiscent of that utilized by R. Ben Zion Meir Hai Ouziel (Resp. Mishpetey Ouziel 3, Choshen Mishpat, no. 47), who permits abortion when there is a “slim pretext” (sibah kelushah) on which to argue that the procedure is necessary to safeguard the mother’s health.

17 Although this remains somewhat controversial; see the discussion on artificial insemination in A.S. Avraham, Nishmat Avraham, EHE 1, pp. 5ff.

18 On medical experimentation in general, see our responsum 5755.11 and R. Walter Jacob, Questions and Reform Jewish Answers, no. 152.

19 Resp. Tzitz Eliezer 15:45.

20 Moreh Nevuchim 1:72.

21 BT Kiddushin 69a.

22 The child of two gentiles is their legal offspring; see Encyclopedia Talmudit 5:289-295. Indeed, the passage in BT Kiddushin says only that the child is not related to the Jewish father (see Rashi, s.v. kevelad bema`ey behemah damey); this does not affect the existence of yichus between the mother and the child.

23 See the articles by R. Zalman N. Goldberg and R. Avraham Kilav in Techumin 5 (1984), 248-267.

24 BT Yevamot 97b.

25 BT Yevamot 22a and parallels.

26 See R. Yehoshua Ben-Meir in Assia 8 (1995), 73-81 and 153-168: the texts support various conclusions: the child is the offspring of the biological mother; the child is the offspring of the birth mother; the child is the offspring of both; the child is the offspring of neither. Not surprisingly, he concludes that “this question requires careful analysis and decision by the leading authorities” (81).

27 See Ellenson (note 1, above).

28 Teshuvot for the Nineties, no. 5753.12.

29 See Ex. 20:12 and Lev. 19:3. A parent may waive the honor and reverence owed him or her by a child. The decision to allow one’s biological child to be raised by others, though made for good and noble reasons, constitutes such a waiver.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.3

CCAR RESPONSA

In Vitro Fertilization and the Mitzvah of Childbearing

5758.3

She’elah
A couple in my congregation have been trying without success to conceive a child. They have consulted a specialist about the possibility of in vitro fertilization (IVF). They have been told that this procedure will likely involve extensive and uncomfortable testing and great financial expense. They wish to know whether Jewish tradition would require or urge them to undertake the personal, physical and monetary burdens of IVF in order that they may fulfill the mitzvah of procreation. (Rabbi Mark Glickman, Tacoma, WA)

Teshuvah
I. Childbearing, Jewish Tradition, and Reform Judaism. Our tradition indeed considers procreation to be a mitzvah, and Reform Judaism affirms this mitzvah as one of the highest values of Jewish life.

In biblical literature, children are a palpable sign of God’s blessing (Psalm 128). Infertility, by contrast, is viewed as a tragedy. Children signify hope; childlessness is a synonym for despair; and the birth of a longed-for and prayed-for child is grounds for great exultation and joy.[1] The very Hebrew word which denotes the infertile person-`a-q-r/h, “the barren one”[2]-suggests the sadness and emptiness of a life without children. Infertility is the occasion of profound sorrow, a grief so vividly expressed by Rachel, who cries “give me children, or I shall die” (Genesis 30:1), and by Abraham, who declares that in the absence of children all other blessings are worthless (Genesis 15:2).[3] It is with these sentiments in mind that the prophet utilizes the language of infertility to depict the sacred history of Israel. Jerusalem, lifeless in exile, is portrayed as a childless woman, while God’s redemption is heralded in the call: “rejoice, O barren one, who has not given birth…for the children of the desolate one will outnumber those of the one who is married” (Isaiah 54:1). Fertility, among the rewards we are promised for observing God’s commandments (Exodus 23:26; Deuteronomy 7:14), will insure the future of Israel; barrenness is the end of the chain which links generation to generation in the transmission of Torah.[4] It is little wonder that our sages, reading these texts, could declare that “one who is without children is considered as though dead.”[5]

It is understandable, then, that procreation (periyah ureviyah) becomes a mitzvah, a religious obligation for the Jew, derived from Genesis 1:28: “God blessed (the man and the woman) and said to them: Be fertile and increase, fill the earth and master it.”[6] Technically, this obligation is fulfilled when one has produced a son and a daughter;[7] nonetheless, “a man who has already fulfilled this mitzvah is forbidden by way of rabbinic ordinance to desist from procreation so long as he has the power to engage in it.”[8] Traditional halakhah, based upon a contentious interpretation of the language of the verse, regards procreation as a mitzvah for the man and not for the woman.[9] This distinction may seem a curious one; after all, both a male and a female are needed to procreate. Still, since childbirth has always involved significant medical risks for women, the predominant halakhic view may have been motivated by the desire to protect those women for whom pregnancy might pose an unacceptable danger to life and health.[10] Whatever its medical origins, this distinction is simply a way of saying that it is the man and not the woman who bears the legal responsibility imposed by the commandment. Thus, a man who has not yet become a father must marry a woman capable of bearing children, and the court (beit din) is empowered to compel him to do so.[11] In addition, a husband whose wife cannot conceive is entitled-and may even be required–to divorce her in order to marry a woman who can.[12] A woman is exempt from these requirements. This imbalance is remedied, however, by three factors. First, by long-standing custom, communities do not exert their coercive legal powers to force men to meet their procreative duties.[13] Second, although women are not considered exempt from the terms of Genesis 1:28, some authorities hold that they do partake in the related requirement, derived from Isaiah 45:18 (lashevet yetzarah And third, even if women are not technically “commanded” to bear children, the rabbis acknowledge that they, no less than men, are entitled to the blessings of parenthood. For this reason, the halakhah permits a childless woman whose husband is infertile to demand a divorce in order to marry a man who can give her children.[15]

Reform Jewish teaching is in substantial accord with that of our sacred texts. Though many cultural differences separate our world view from that of our ancestors, we still hold that “it is a mitzvah for a man and a woman, recognizing the sanctity of life and the sanctity of the marriage partnership, to bring children into the world.”[16] Indeed, given our commitment to gender equality in the realm of religious observance, we would apply the terms of this mitzvah to women and to men alike.[17] And just as our tradition understands periyah ureviyah as an essentially Jewish obligation,[18] Reform Judaism admonishes us to bear in mind the Jewish dimensions of this subject. We may be rightly concerned about the problem of world overpopulation. And human beings in any case have the right to determine the number of children they should have. On the other hand, “Jews have seen their progeny…as an assurance of the continued existence of the Jewish people.”[19] “In considering family size…parents should be aware of the tragic decimation of our people during the Holocaust and of the threats of annihilation that have pursued the Jewish people throughout history.” Therefore, “couples are encouraged to consider the matter of family size carefully and with due regard to the problem of Jewish survival.”[20]

None of this implies that procreation is an absolute requirement for every person. As Reform Jews, we place a high value upon personal freedom in the realm of religious observance. Phrases such as “absolute requirement” are conspicuous by their absence from typical Reform Jewish religious discourse. With respect to this particular observance, there have always been those who could not and did not have children; similarly, “there are people who, for a variety of reasons, will be unable to fulfill this mitzvah.” Like other mitzvot, this one is incumbent only upon “those who are physically and emotionally capable of fulfilling it. Those who cannot are considered no less observant and no less Jewish.”[21] Yet this understanding attitude should not be taken to mean that we are somehow neutral as to the decision of a Jewish couple to have children. To say that “procreation is a mitzvah” is to say that it is a positive good and that, barring truly extenuating circumstances, it is the choice that Jews ought to make for their households and families.

For this reason, our she’elah is an especially profound one. The couple who submit it clearly take their Judaism seriously. As such, they regard children not only as the fulfilment of a personal desire but also as the realization of a mitzvah, an act by which we Jews constitute ourselves as a people and as a religious community. The procedure of in vitro fertilization (IVF) may offer the only hope for them to conceive a child. They wish to know whether Jewish tradition and Reform Jewish tradition, both of which stress the importance of having children, teach that they ought to undergo this procedure despite their aversions to it. It is to this issue that we now turn.

II. Artificial Techniques of Human Reproduction: A Reform Jewish View. In ancient times, the accepted response to barrenness was prayer. Since it was natural to regard infertility as a divine punishment, an “act of God,”[22] the proper course of action was to turn to God in supplication, as did Abraham (Genesis 20:17), Isaac and Rebecca (Genesis 25:21)[23] and Hannah (I Samuel 1-2). Indeed, a refusal to pray on behalf of the infertile was considered an act of grave moral insensitivity. Thus, the rabbis criticize Jacob’s angry response to Rachel (“Can I take the place of God, who has denied you fruit of the womb?” Genesis 30:2) with a question of their own: “is this how one responds to those who suffer?”[24] Significantly, these episodes are cast in a therapeutic context. Infertility is a disease, an ailment that can be “cured” by the correct remedy. And as is generally the case in biblical and much rabbinic literature, the best available “therapy,” for childlessness as with all other diseases,[25] is prayer.

Since then, much has changed. Where healing was once effected primarily by means of prayer, Jewish tradition has for many centuries accepted the practice of medicine (refu’ah) as the correct therapy, the right response to disease. Medicine, our sources tell us, is a mitzvah; it is the way in which we most often fulfill our obligation to save life (pikuach nefesh). While it is surely a good thing to ask God’s blessings upon those who are ill–and we do so in our liturgy–prayer is no longer sufficient therapy. As the talmudic saying puts it, “one who is in pain should go to the doctor”:[26] when we are ill, we must avail ourselves of the remedies devised through human wisdom and scientific knowledge and not place our exclusive reliance upon the hope that God will intervene into the workings of nature.[27]

From all of this, it follows that the various technologies which enable the infertile to conceive ought to be understood as medicine. Our Committee has indeed taken this position with respect to artificial reproductive techniques in general[28] and IVF in particular.[29] Human infertility is a disease, not because it threatens the life and health of the infertile but because it frustrates our attainment of the goal–the mitzvah–of bringing children into the world.[30] The scientific tools developed to cure this disease are therefore advances in medicine and should be welcomed, as we welcome other medical advances, as a positive good. The question we must answer at this juncture is the extent to which this particular kind of medicine ought to be regarded as obligatory. Medical treatment, after all, is a mitzvah, understood in our tradition as a religious duty. And in cases where the medical procedure indicated for a specific condition is a tested and proven one (refu’ah bedukah or refu’ah vada’it), offering a reasonably certain prospect of successful treatment, the tradition holds that a patient is obligated to accept the treatment and can even be compelled to do so.[31] Does IVF, which we clearly regard as medical treatment for disease, fall into this category of “tested remedy”? If it does, then we would have strong grounds on which to urge the couple who bring this she’elah to undertake the procedure despite its discomfort and its cost.

III. IVF as a Medical Procedure. The technology of in vitro fertilization, first developed over fifty years ago, led to a live human birth in 1978.[32] It is a “medically indicated” treatment for infertility resulting from blockage of a woman’s fallopian tubes, male infertility, endometriosis, and “other multiple causes.”[33] The procedure may be summarized as follows.[34] The woman’s ovaries are stimulated with fertility drugs to produce multiple eggs.[35] The woman’s response is monitored by means of urinalysis, blood samples, and ultrasound. Once the eggs are released, the physician may retrieve them through laparoscopy, done under general anesthesia, in which a surgeon inserts a hollow needle, guided by an optical instrument called a laparoscope, into the woman’s abdomen. Alternately, the needle may be inserted into the vagina, guided by ultrasound. This latter method requires only a local anesthetic. Upon retrieval, the eggs are placed in glass dishes and combined with semen collected from the woman’s partner or a donor. The dishes are placed into an incubator for twelve to eighteen hours. If an egg is fertilized and develops into an embryo, it is transferred into the uterus by means of a catheter inserted into the vagina. Should the embryo become implanted in the uterine wall, pregnancy will be detected about two weeks later.

The medical effectiveness of this complicated procedure might be measured in one of two ways. First, given that “tens of thousands of embryo transfers are carried out each year internationally, and thousands of babies have been born” as a result of this therapy,[36] we might well say that in vitro fertilization works, that it has been tested and found to be a “successful” response to the disease of infertility. Yet if we consider the figures from the standpoint of IVF’s rate of success, we find much less ground for encouragement. Estimates range from a rate of 16.9% to 27.9% live births for each group of eggs collected in fertility clinics in the United States, a number which “remains lower than one would like and has not improved much during the last five years.”[37] This rate, moreover, declines further when it is calculated from the beginning of the IVF process, from the point of hormonal stimulation rather than from the collection of the eggs.[38] Such numbers do not suggest a therapy which offers “a reasonably certain prospect of successful treatment.” We might well expect them to improve as IVF techniques are refined in coming years. At present, however, this less-than-heartening success rate virtually begs us to conclude that, while in vitro fertilization offers much hope to those who seek children, it cannot be considered a “cure” for the disease of infertility.

IV. IVF–An Obligation? Given these facts, we are in a better position to address the question: does Jewish tradition require an infertile couple to undergo in vitro fertilization if that procedure is seen as the only means by which they might conceive a child?

We cannot deny, first of all, that in vitro fertilization counts as one of the “miracles” of modern medicine. We would be ungrateful indeed should we fail to acknowledge our good fortune to live in an age which has devised such a means for overcoming a condition that for many centuries has brought great sadness to women and men. Rabbis who counsel infertile couples should not fail to emphasize this blessing offered us by science, the wonderful possibilities it opens for those who yearn to fulfill the mitzvah of procreation. Still, there is a crucial difference between possibility and reality, and the reality of IVF’s success rate suggests that the procedure does not qualify as a “tested and proven” treatment (refu’ah bedukah) for infertility. We have written in connection with other medical conditions that, if a particular treatment cannot be considered a refu’ah bedukah, “if its therapeutic effect upon the disease is uncertain at best, then the patient is not required to accept it.”[39] That reasoning, we think, most certainly applies to this case.

To say that a person is “required” or “obligated” to accept a particular medical treatment means as well that, as best as medical opinion can determine, the therapeutic benefits of the treatment significantly outweigh its potential risks and side-effects. To be sure, the benefits of IVF are obvious, in the form of the “thousands of babies” it has brought into the world, and its untoward side-effects are not as clear. Physicians, for example, report that the general risks of surgery to the infertile woman “have been minimized with careful medical practice… (and) the birth defects that have been observed (in children born of IVF) occur in frequencies and types not significantly different from that found in the general population.” On the other hand, “these comforting results are… all short term.” There is some evidence that the use of fertility drugs for ovarian stimulation may significantly increase the risk of contracting ovarian cancer later in life. In addition, little is known about the long-term potential for introducing genetic defects that become manifest later in the child’s life. The increased frequency of multiple births, resulting from implantation of several embryos in the uterus at a time, is another source of health risk, as is the use of cryopreservation (freezing of embryos for later implantation.[40] It is understandable that some women do not wish to accept these potential health risks for themselves or for the children they might conceive.[41] And however we ourselves might draw that fateful balance between the possible blessings and the potential risks of IVF, the dubious success of this procedure makes it difficult in the extreme for us to assert that a particular woman is somehow “required” to undertake the procedure.

Then, too, we cannot ignore the matter of cost. As of a few years ago, the estimated expenditure for a couple in the United States achieving a successful delivery by IVF ranged from $44,000 to $211,940, the costs rising (and chances of success diminishing) with each failed cycle of treatment.[43] True, we might say that “money is no object” and that successful medical treatment ought to be regarded as a “priceless” commodity. But how “successful” is this treatment? Given that failure is the probable outcome of each IVF treatment cycle, it is again difficult to justify an “obligation” to undertake its extraordinary expense.

Finally, let us not lose sight of what our she’elah terms the “personal” burdens associated with IVF. Any surgery is an invasive procedure which by its nature inflicts physical discomfort and psychological distress upon the patient. This particular form of surgery, an arduous process which offers uncertain prospects of success and which touches upon some of the most sensitive aspects of personality and marital life, may well cause even greater suffering. Infertile women and couples who have reached the point of considering IVF have already travelled a difficult and painful road in their lives. To tell them that they are “required” to submit to this procedure–especially when it does not offer them a prospect of probable success–is but to increase to no good purpose the anguish they have already suffered. In cases such as this, we think it better to follow instead the counsel of compassion, of rachmanut; let us listen to the voice of those who suffer rather than insist they hearken to ours.

Conclusion. Jewish tradition regards the bringing of children into the world as a mitzvah, a religious duty. At the same time, it does not require or oblige this couple to undertake in vitro fertilization. How can an act be both a mitzvah and yet not obligatory? One way of thinking about this question is to remind ourselves that the word “mitzvah” can indicate a general religious requirement, one that applies to most of us, even the preponderant majority of us, most of the time, but which exempts particular individuals depending upon the circumstances of their lives. For example, Jewish law recognizes that, in general, we all bear the duty to save human life, to rescue those who are in danger, but this obligation does not apply to the individual who for some reason is “unable” to perform the rescue.[44] With respect to our issue as well, while it is true that as a species and as a people we are “required” to bring children into the world, it is also true that Jewish law accepts that there are exceptions to the general rule. Thus, it neither compels individuals to marry nor infertile couples to divorce.[45] And, significantly, it does not demand that a woman sacrifice her health for the sake of this mitzvah; as one emiment authority has put it, “one is not required to lay waste to one’s life in order to ‘settle the world.'”[46]

We might also keep in mind that our tradition draws a distinction between mitzvot which are defined as chovah and those which are not. A chovah, or “obligation,” is a religious duty that one is required to perform, regardless of the expense or inconvenience involved. At the same time, there are a number of mitzvot which do not impose absolute requirements; “one who performs this act receives a heavenly reward for doing so, but the one who does not perform it is not punished thereby.”[47] We might say that the decision to undertake IVF falls into this latter category. Reform Jewish teaching would endorse this distinction. It is certainly a mitzvah to have children, and couples considering IVF or similar procedures deserve our full encouragement and support. Still, if this couple decides against IVF, we must pay the highest deference to their freedom, human dignity, and unique experience.

Finally, we should note that IVF and other artificial techniques of reproduction are not the only means whereby this couple might hope to fulfill the mitzvah of bringing children into the world. They may create their family by way of adoption, for as we have noted elsewhere, the relationship created by adoption is equivalent in every respect to that between parents and their biological children.[48] Should the couple choose to take this path to parenthood, they are entitled to all the assistance and encouragement which our community can offer them as they continue to build their Jewish household.

NOTES

 

  • Such as Hannah’s prayer of thanksgiving (I Samuel 2) and Sarah’s happiness (Gen. 21:6-7).
  • While the Bible refers more often to female than to male sterility, the latter is not unknown; see Deut. 7:14 and Rashi ad loc.
  • Other examples include Sarah (Gen. 16:2; see Rashi ad loc., from Bereshit Rabah 45:2), Isaac and Rebecca (Gen. 25:21); Hannah (I Samuel 1-2), and the Shunamite woman (II Kings 4).
  • See the comment of Sforno to Ex. 23:26.
  • BT Nedarim 64b; Rashi to Gen. 30:1. The Torah Temimah comments upon that verse: “the Talmud teaches here that the course of life is a thread that stretches from parents to children. When one has no children, the life-thread of that individual has been severed, and he is as though dead.” See also Bereshit Rabah 45:2, cited in note 3: one who is without children lines in a state of “ruin” (harus; a play on the biblical term ibaneh in Gen. 16:2).
  • The midrash which derives the law from Gen. 1:28 is found in M. Yevamot 6:6. On the law itself, see Yad, Ishut 15:1 and SA EHE 1:1. It is interesting that although this verse is addressed to Adam and Eve and therefore to all humankind (and compare Gen. 9:1), the halakhah does not count procreation as one of the “Noachide” mitzvot: it is an obligation for Jews alone (BT Sanhedrin 59b). For this reason, a Gentile who has children and then converts to Judaism has fulfilled the obligation to procreate provided that the children convert as well (Yad, Ishut 15:6; SA EHE 1:7). Although some poskim disagree, holding that a proselyte’s Gentile children do “count” toward fulfilment of the mitzvah (Resp. Maharil, no. 223), others note that this has to do with the issue of relationship (yichus: Jewish law recognizes the legal relationship between members of Gentile families), and we should not infer from this dispute that either side holds procreation to be a mitzvah for Gentiles as well as for Jews (Tosafot, Yev. 62a, s.v. beney.
  • M. Yevamot 6:6, according to the position of Beit Hillel, who derive the “male and female” standard from the precedent of Adam and Eve, as opposed to Beit Shamai, who rely on the precedent of Moses, who fathered two sons. Yad, Ishut 15:4; SA EHE 1:5.
  • Yad, Ishut 15:16, from the statement of R. Yehoshua, BT Yevamot 62b.
  • See M. Yevamot 6:6 and BT Yevamot 65b. The setam mishnah assigns the mitzvah of procreation to the man, while R. Yochanan b. Beroka, noting that the language of the verse is in the plural voice, holds that both the male and the female are obligated under the commandment’s terms. The Talmud explains the setam position by the text’s word vekhivshuhah, “and master it”, literally, “and conquer it”: just as it is the way of the male, and not the female, to “conquer,” so does the rest of the verse, including the words peru urevu (“be fruitful and increase”) apply exclusively to the male. The meaning of “conquest” here is ambiguous: while the term may well refer to warfare, a traditionally male pursuit, some sources suggest that it deals with the husband’s mastery or dominance in the marital home; see Bereshit Rabah 8:12 and Bartenura to the mishnah. The Talmud, continuing the debate, replies on behalf of R. Yochanan b. Beroka that the word vekhivshuhah, like the rest of the verse, is written in the Hebrew plural; thus, it applies equally to the woman and to the man. The response to this is that while the word is vocalized in the plural, it is written chaser, “defectively,” as though it is a singular word, indicating that the Torah limits the obligation of this verse to the male alone. The later halakhah, beginning with the talmudic sugya at BT Yevamot 65b, accepts the setam position as authoritative (Halakhot Gedolot, ed. Hildesheimer, 2:240-241; Yad, Ishut 15:2; SA EHE 1:13).
  • The talmudic discussion does not mention these medical considerations. Later authorities, however, might well take them into account in their understanding of a woman’s religious obligation with respect to childbearing. See Resp. Chatam Sofer, EHE 20, discussed below at note 45: a woman is not obligated to conceive under the terms of Isaiah 45:18 when the pregnancy poses more than the usual health risk.
  • BT Yevamot 64b; Hilkhot HaRosh, Yevamot 6:16; SA EHE 1:3.
  • BT Yevamot 65a-b and Ketubot 77a; Yad, Ishut 15:7-8; SA EHE 154:6.
  • Resp. R. Yitzchak b. Sheshet, no. 15, and Isserles to EHE 1:3.
  • This theory is developed by the Tosafot (Gitin 41b, s.v. lo; Bava Batra 13a, s.v. shene’emar). The requirement of leshevet yetzarah, because it is derived from a prophetic source (divrey kabalah), is considered less stringent than that of periyah ureviyah, which is based upon a verse in the Torah. Nonetheless, the fact that women may be subject to this requirement makes a difference in traditional halakhic thought. Thus, the permit to sell a sefer torah in order to raise the funds needed to marry applies to women as well as to men, since women, though they are not obligated under Genesis 1:28, are nonetheless “covered” by Isaiah 45:18. See Magen Avraham to SA Orach Chayim 153, no. 9; Beit Shmuel to SA Even Ha`ezer 1, no. 2; and Resp. Tzitz Eliezer 10:42.
  • BT Yevamot 65b; Yad, Ishut 15:10; SA EHE 154:6. Should the husband refuse this demand, the court may compel him to issue a get.
  • Gates of Mitzvah, A-1, 11.
  • In this, we would follow the position enunciated by R. Yochanan b. Beroka in M. Yevamot 6:6 and BT Yevamot 65b; see note 8. His midrash, that the biblical verse speaks in the plural, is surely more compelling than that which supports the opposing view. We would categorically reject any attempt to determine religious obligation based upon some “tendency” of males toward conquest or domination.
  • See note 6.
  • Gates of Mitzvah, 9.
  • Ibid., A-2, 11.
  • Ibid., note. See also the sources cited in note 12: the “long-standing custom” in traditional Jewish practice “is not to coerce on this matter.” The community, that is to say, does not intervene into the lives of couples who for any reason do not have children.
  • See Genesis 20:18 (“for God had closed fast every womb of the household of Avimelekh”; Genesis 29:31 and 30:3 (“Can I take the place of God, who has denied you fruit of the womb?”); I Samuel 1:5-6 (“for God had closed her womb”).
  • While according to the literal sense of the verse Isaac prayed alone, the rabbis understand the words lenokhach ishto to mean that both husband and wife offered prayers; Rashi ad loc, from Bereshit Rabah 63:5.
  • Bereshit Rabah 71:7. The midrash continues: “by your life, your (Jacob’s) sons will one day pay fealty to her son” (i.e., Joseph; see Gen. 50:18-19, especially Joseph’s repetition of his father’s words: “can I take the place of God?”).
  • The idea of disease as a divine recompense for our misdeeds and of healing as a sign of God’s favor appears throughout our texts. See, for example, Ex. 23:25; Lev. 26:16; Deut. 7:15; BT Berakhot 60a (bottom, the prayer which suggests that human beings have no business engaging in medicine in response to illness); and especially the comment of Nachmanides (Ramban) to Lev. 26:11.
  • BT Bava Kama 46b.
  • As Ramban writes (to Lev. 26:11), once Israel chose to live its life in accordance with the laws of nature, rather than according to God’s special providence, “the Torah will not make its laws depend upon miracles.” That is to say, if pikuach nefesh is a mitzvah (see BT Yoma 85b to Lev. 18:5), then the correct way to fulfill that obligation is through the practice of medicine, which unlike prayer does not require a special intervention by Heaven. For a more detailed discussion see Teshuvot for the Nineties (TFN), no. 5754.18, 373-375.
  • See American Reform Responsa (ARR), nos. 157-159.
  • See our responsum no. 5757.2, “In Vitro Fertilization and the Status of the Embryo.”
  • On this, see responsum 5757.2 at note 7: “by ‘disease’ we mean a condition in which some aspect of our biological or psychological systems does not function properly.” And in the note itself: “This suggests that the definition of ‘disease’ is largely a matter of social construction: that part of our biological or psychological systems is functioning ‘improperly’ is a judgment we make based upon a conception of what ‘proper’ functioning is. Accordingly, we may define human infertility as a disease and the procedures designed to correct it as ‘medicine’.”
  • See our discussion in TFN, no. 5754.14, 348-349, at notes 38-40.
  • J. Rock and M. F. Menkin, “In vitro fertilization and Cleavage of Human Ovarian Eggs,” Science 100:105 (1944); P. C. Steptoe and R. C. Edwards, “Birth After Reimplantation of a Human Embryo,” Lancet 2:336 (1978).
  • Joseph Schenker, M.D., “Medically Assisted Conception: The State of the Art in Clinical Practice,” in Patricia Stephenson and Marsden G. Wagner, eds., Tough Choices: In Vitro Fertilization and the Reproductive Technologies (Philadelphia: Temple U. Press, 1993), 25-36. The citation is at p. 26. Dr. Schenker is Professor of Obstetrics and Gynecology at Hadassah Medical Organization, Jerusalem. At the time of this writing, he was chair of the department and president of the Israeli Society of Obstetrics and Gynecology.
  • This description is taken from Andrea L. Bonnicksen, “In Vitro Fertilization and Embryo Transfer,” Encyclopaedia of Bioethics (New York: Simon and Schuster MacMillan, 1995), 2221ff.
  • Schenker, loc. cit., adds that the current trend is away from drug-stimulated menstrual cycles and toward “natural cycle IVF”, which poses fewer risks to woman and child.
  • Bonnicksen, 2222.
  • See Michael E. McClure, M.D., “The ‘ART’ of Medically-Assisted Reproduction: An Embryo is an Embryo is an Embryo,” in David C. Thomasma and Thomasine Kushner, eds., Birth to Death: Science and Bioethics (Cambridge: Cambridge U. Press, 1996), 35-49. Dr. McClure is the Chief of the Reproductive Sciences Branch, Center for Population Research, National Institute of Child Health at the National Institutes of Health, Bethesda, Maryland. The citation is at p. 42.
  • One such estimate, taken from a survey of several national registries, is a success rate of 9% to 13%. See Jean Cohen, “The Efficiency and Efficacy of IVF and GIFT,” Human Reproduction 6 (1991), 5:613-618.
  • It could be argued that 16.9% to 27.9% success rate ought to be accepted as a “proven treatment” because it raises the chances of conception to roughly equivalent with natural conception. But this is not what we think refu’ah bedukah means. The infertile couple do not measure medical success by the degree to which their attempts to conceive enjoy the same rate of success as that of other couples. For them, “success” means a successful conception leading to a live birth. Such is a reasonable definition, as it is the prospect of actually having a baby that brings them to IVF in the first place. And until the rates of conception and live birth significantly improve, we do not think the procedure currently qualifies as refu’ah bedukah.
  • TFN, no. 5754.14, at pp. 348-349.
  • McClure, 43-46.
  • See Cynthia B. Cohen, “‘Give Me Children or I Shall Die!’ New Reproductive Technologies and Harm to Children,” Hastings Center Report 26:2 (March-April 1996), 19-27, arguing that a decision not to have children is certainly ethical if we know we are subjecting them to significant risk by conceiving them through artificial technologies.
  • McClure, 43.
  • See BT Sanhedrin 74a, from Lev. 19:16 (“do not stand idly by the blood of your fellow”), which declares that whoever sees his fellow in danger is “obliged” (chayav) to save him, and Yad, Rotzeach 1:14, where this obligation is formulated thusly: “whoever is able [emphasis added] to save (another) and does not do so violates the commandment ‘do not stand idly by the blood of your fellow.'”
  • And, again, see the sources at note 12: it has long been customary not to coerce over this very matter.
  • Resp. Chatam Sofer, EHE, no. 20.
  • The quotation, taken from Mishnah Berurah 260, no. 1, is found as well in Isserles, Darkei Moshe to Tur OC 260; he in turn derived it from the 13th-century work Or Zaru`a, Hil. Erev Shabbat, par. 7. The talmudic source is BT Shabbat 25b: “the kindling of the Shabbat lamp is an obligation (chovah), while washing one’s hands and feet in warm water on Friday afternoon (see Rashi ad loc.) is a voluntary act (reshut); but I [the transmitter of this statement] say that the latter is a mitzvah,” meaning neither obligatory not entirely “optional”. On this subject in general, see the article “Chovah, mitzvah, ureshut,” Encyclopaedia Talmudit, vol. 12: 645-679.
  • The quotation, taken from Mishnah Berurah 260, no. 1, is found as well in Isserles, Darkei Moshe to Tur OC 260; he in turn derived it from the 13th-century work Or Zaru`a, Hil. Erev Shabbat, par. 7. The talmudic source is BT Shabbat 25b: “the kindling of the Shabbat lamp is an obligation (chovah), while washing one’s hands and feet in warm water on Friday afternoon (see Rashi ad loc.) is a voluntary act (reshut); but I [the transmitter of this statement] say that the latter is a mitzvah,” meaning neither obligatory not entirely “optional”. On this subject in general, see the article “Chovah, mitzvah, ureshut,” Encyclopaedia Talmudit, vol. 12: 645-679.
  • If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5761.1

CCAR RESPONSA

5761.1

Copyright and the Internet

She’elah

According to Jewish law, is it right to download files (music, games, etc.) from the Internet without the creator’s consent or monetary compensation? (Rabbi Eric Gurvis and the ninth grade religious school class, Temple Shalom, Newton, Massachusetts)

Teshuvah

The easiest way to answer this question is to refer it to the civil authorities. Jewish law contains the principle of dina demalkhuta dina,[1] which recognizes the validity of the law of the state or the general government. This law is valid and binding upon us because the citizens of the commonwealth have agreed in advance to abide by the laws that pertain to the government’s accepted legislative power.[2] Our question is one of property rights, specifically the issue of ownership of what we call “intellectual property,” and this clearly falls into the category of those matters that the state may properly regulate through its legal system. Jewish law would recognize as valid the decision reached on this question by the legal system under which we live, whatever that decision might be.

Yet this “easy”answer does not really address the question we have been asked. Our sho’el wants to know how Jewish law would resolve the issue, were it not a matter to be adjudicated by the civil courts. That is, according to the tradition of legal and religious thought known as the halakhah, what is our ethical duty with respect to materials we download from the Internet? Are we permitted to access these materials freely? Or do we violate the rights of their creators and owners if we download them without their permission or do not pay them compensation? If we were dealing with a question of tangible property (real estate or chattel), our response would be obvious. Taking or borrowing the property of another person without that person’s consent is tantamount to theft. But we are dealing instead with the ownership of intellectual property, a set of rights called “copyright.” Does Jewish law recognize copyright? And if so, does copyright protection extend to material available over the Internet?

“Copyright”[3] as a legal principle does not enter the halakhic literature, or the law in general, until the invention of printing. Prior to that time, there were no mechanical means to make multiple copies of written texts. The advent of the printing press led to the creation of a new industry in which many workers were employed and in which considerable money was spent in the production of books and other printed materials. Since it was now relatively easy to make copies of these texts and to distribute them on a mass scale, authors and publishers sought to protect their investments from encroachment by competitors.[4]

The first case we encounter in Jewish law concerns the printing of an edition of the Mishneh Torah, the law code of Maimonides, by R. Meir of Padua and a Gentile printer in Venice in 1550. A competitor thereupon published the same work, pricing it somewhat lower than the first edition. R. Moshe Isserles, one of the authors of the Shulchan Arukh, issued a ban against the competitor’s edition, on the grounds that its publication wrongfully injured the livelihood of R. Meir and the first printer.[5] This ruling was controversial, since the relevant Talmudic passage seems to allow free economic competition.[6] Isserles apparently reads the passage to say that, while competition is permitted, the competitor may not destroy the livelihood of the established business.[7] The printer has a copyright upon the book, therefore, because free competition in this case would drive him from the market and deprive him of any chance to recoup his investment. Some later authorities were reluctant to accept this view. The Torah, they argued, belongs to all of us, and the study of the Torah is a central religious duty. How can anyone claim property rights over sacred texts, literature produced in fulfillment of a mitzvah?[8] This objection, however, was countered by the very practical concern that, without some sort of protection allowing him to realize a profit, no printer would undertake the financial risks necessary to publish works of Torah learning. Our devotion to the mitzvah of Torah study therefore requires that we recognize the property rights of the publishers of sacred literature.[9] In addition, those who expressed doubts about copyright did so with respect to printers who published works written by others. These authorities were much more willing to recognize that the author of a work of Torah scholarship had a right to profit from his own book.[10]

Jewish law, in other words, accepts that the author of a text enjoys a copyright over his or her work, as a matter either of principle (the creator of a text is its rightful owner)[11] or of pragmatism (without copyright protection, few would venture to publish such works). If this is true of sacred literature, where one could object that there should be no such thing as a copyright over words of Torah, it is certainly true of other written works, where that objection does not apply. And if the authors of written texts deserve copyright protection, there is no reason why we should not extend that protection to other forms of intellectual property, which like written texts are created by authors who invest time and resources into their creation in the hope of earning a livelihood and of achieving a return on their investment. These works should not be copied or reproduced without the consent of their authors, the authors’ legal representatives, or of those to whom the authors have transferred legal title.[12]

Does the new technology change these conclusions in any substantial way? The development of the Internet and the World Wide Web has dramatically transformed the publishing marketplace during the past decade, making it possible to reproduce literary and artistic materials and to distribute them instantaneously to an audience that circles the globe. Some contend that this new technology has radically altered the notion of copyright as well. Since it is so easy to download files and to share texts, the argument runs, the authors of these materials cannot reasonably expect to control their sale and distribution. Some go further, claiming that in this new “information age,” where the rapid sharing of data has become the norm, it is wrong as well as impractical to try to impede the free distribution of knowledge and information.[13]

It seems to us, however, that while information technology has become more sophisticated, the ethical issues that led to the creation of copyright laws remain the same. If it is wrong to print a book or to copy a painting without obtaining the permission of its creator, it is just as wrong to download literary and artistic creations as files without the consent of those who authored them or who own the rights to them. It is true that the “Internet age” confronts us with fundamentally new realities. It may also be true that existing copyright laws are insufficient to respond to these new realities. But it is certainly true that we continue to shoulder a duty, under Jewish tradition as well as under the law of the state, to honor, protect and safeguard the rights of authors and publishers to the works they create.

It is therefore wrong, from the standpoint of Jewish law, to download files from the Internet unless one has obtained permission from the authors of those files to do so.

 

 

NOTES

 

  • This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.
  • The agreement is called a stipulation (tena’i), in effect a contract or compact into which the members of the community have entered. Note the language “accepted legislative power”: the principle of dina demalkhuta dina does not entail that all the acts of the general government are accepted by Jewish law as valid and binding. On the theory and the limits of dina demalkhuta dina, see our responsum no. 5757.1.
  • We follow the definition of “copyright” as set forth in Corpus Juris Secundum (St. Paul: West Publishing Co., 1990) 18:2 (94): the right of literary property as recognized and sanctioned by positive law; the exclusive right of printing or otherwise multiplying copies of an intellectual production and of publishing and vending the same; and the right of preventing all others from doing so.
  • For the historical background see J.A.L. Sterling, World Copyright Law (London: Sweet and Maxwell, 1998), 7 ff. The granting of publication monopolies was a well-established practice in the printing center of Venice for nearly one hundred years prior to the case involving the Mishneh Torah.
  • Responsa Rema (R. Moshe Isserles)

, no. 10.

  • See BT Bava Batra 21b: may a competitor from the immediate community or from outside the community open a similar business there, or can the existing artisan or merchant prevent him from doing so? Most early authorities rule that the competitor must be allowed to do business, inasmuch as a similar business already exists within the community (Yad, Shekhenim 6:8; Alfasi to Bava Batra 21b; Hilkhot Harosh, Bava Batra 2:12). On the other hand, R. Mordekhai b. Hillel (Sefer Hamordekhai, Bava Batra, ch. 516) writes that the competitor may be prevented from setting up his business in a spot where all the potential customers will pass by his establishment without seeing that of the existing merchant or artisan, thereby depriving the latter of business.
  • Isserles uses the term bari hezeka (“the damage is clear and palpable”; see also his Darkhei Moshe to Tur, Choshen Mishpat 155, no. 4). R. Moshe Sofer (18th-19th cent. Hungary) explains Isserles’ point as follows: the existing business has no right to prevent the entry of a competitor when the competition will result in a lessening of the existing business’s income. But if the competition would destroy the existing business, the latter has the right to prevent the entry of the competitor (Resp. Chatam Sofer, Choshen Mishpat, no. 79).
  • As one posek put it: if Moses himself taught Torah without receiving payment, how can we demand the right to profit from publishing sacred texts (see BT Nedarim 30a, on Deut. 4:5)? R. Yitzchak Schmelkes (19th-cent. Galicia), Resp. Beit Yitzchak, Yoreh De`ah 2:75.
  • Resp. Chatam Sofer

, Choshen Mishpat, no. 57.

  • Resp. Beit Yitzchak

(see note 6); Resp. Sho’el Umeshiv (R. Shaul Natanson, 19th-cent. Galicia), 1:44; and Resp. Meshiv Davar (R. Naftali Zvi Yehudah Berlin, 19th-cent. Lithuania), 1:24.

  • This argument is put forth by R. Berlin in Resp. Meshiv Davar, loc. cit. See also R. Shimeon Shkop, Chidushey R. Shimeon Yehudah Hakohen, Bava Kama, no. 1: “it is an accepted principle in Torah law that one who creates a thing is the owner of all rights to and over it.”
  • This statement is a simplification of a complex legal and ethical situation. The law of the state generally allows an individual to make limited “fair use” of copyrighted material for certain specific purposes. There is no requirement to obtain the author’s consent to use the materials for these purposes. The problem emerges when one reproduces literary and artistic materials for purposes other than “fair use.”
  • For a look at some of these arguments, see Ron Coleman, “Copycats on the Superhighway,” American Bar Association Journal 81 (July, 1995), 68-70.

 

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 9-10

CCAR RESPONSA

Contemporary American Reform Responsa

7. Insanity in Criminal Cases

QUESTION:Are there rabbinic opinions on insanity as a defense in a criminal trial? What is the status of the insane in criminal matters? (A. Adelstone, Flushing, NY)

ANSWER: When the Mishnah and the Talmud discussed individuals of limited ability, they frequently used the phrase, heresh shoteh veqatan – the deaf, the insane and the minor; insanity included any serious mental imbalance. No one in these categories may be punished for their offenses, and they are considered to have limited legal liability (M. Erub. 3.2; R. H. 3.8; Meg. 2.4; Hag. 1.1; Git. 2.5, 5.8; B. K. 4.4, 5.6, 6.4, 8.4, etc.) The later Jewish codes continue this classification. The insane are not considered responsible for injuries to others, though others who assault them are liable for the usual punishments (M. B. K. 8.4, 87a; Yad Hil. Hovel 24.20; Shulhan Arukh Hoshen Mishpat 424.8). However, if the individual has lucid moments, in other words, if insanity is temporary, then he is considered responsible (Yad Hil. Mekh. 29; Shulhan Arukh Hoshen Mishpat 235.23). If the rights or the estate of persons of unsound mind needed to be defended, then the court appoints an administrator (epitropos) who looks after their interests. They are not entitled to damages in cases of insult or defamation of character (B. K. 86b; Yad Hil. Hovel 3.4; Shulhan ArukhHoshen Mishpat 300.27).

The status of the insane in rabbinic literature is, therefore, clear. The discussion in the later responsa deals almost exclusively with the problems of engagement, marriage, divorce or inheritance. Two problems remain for our discussion. How is insanity defined by rabbinic literature? What is temporary lucidity?

The Talmud attempted to define insanity as one “who wanders alone at night and spends the night in the cemetery and tears his garments” (Hag. 3b). This definition was immediately challenged by authorities on the same page, and no resolution was achieved. Others defined it to include individuals who were self-destructive or eccentric (Git. 78a; J. Ter. 40b). It was ultimately left to the judges to assess the situation and make a judgment according to the evidence in each case (YadHil. Edut. 9.9). In order to assure an appropriate decision, the judges were required to possess some knowledge of all the sciences including medicine (Yad Hil. San. 2.1).

Those temporarily insane are not considered liable for acts performed during periods of insanity. However, during times of lucidity, they are liable and could also act as witnesses (Tos. Ter. 1.3; J. Ter. 40b; B. B. 128a; Yad Hil. Mekh. 29; Shulhan Arukh Hoshen Mishpat 235.23). The court must decide whether an act has been committed in a period of insanity or lucidity. Furthermore, an individual so intoxicated as to be totally unaware of his actions is considered temporarily insane, and is treated accordingly by the court (Er. 75a; YadHil. Ishut 4.18). The cases cited in the responsa literature, however, deal with betrothal and marriage, not criminal acts.

Although some guidelines have been mentioned, they are vague and the decision of temporary insanity is left to the court. Individuals who are considered totally insane are not liable for any act which they may commit.

October 1982

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 185-186

CCAR RESPONSA

Contemporary American Reform Responsa

123. Incest and Parental

Responsibilities

QUESTION: What is the duty of young parents toward

their dying father who was guilty of incest with his granddaughter? This tragic incident occurred

four years ago. Both the family and the youngster have been helped psychologically in the

interval. Are the parents required to recite qaddish and in any other way honor him or his

memory?ANSWER: The question which you have asked is, of course, especially

tragic as family ties and many early childhood memories have been permanently destroyed. The

obligation of children toward an evil parent has been discussed since Talmudic times; a division

of opinion is found in some discussions, which are incidental to other matters (Yeb. 22a f; B. K.

94b; San. 85a; Kid 32a). By medieval times there was a clear division of opinion between

Maimonides and Alfasi on the one hand, and the exegetes of Northern France (Rashi and the

Tosafists) on the other. Maimonides and Alfasi felt that the obligation of children to honor their

parents was biological and had nothing to do with the moral status of the parents (Yad Hil.

Mamrin 6.8 ff; Alfas to Yeb. 22b). Rashi and Rabenu Tam felt that honor depended on the moral

status of the parent and a wicked parent need not be honored (Commentaries to Yeb. 22b; San.

85b; Mak. 12b). In each of these instances the medieval authorities dealt with parents who were

considered absolutely wicked and not individuals who had sinned in a minor way (Maimonides

Sefer Hahinukh 48; Moses of Coucey S’mag Lo Taaseh 219; Yad Hil.

Malveh Veloveh 4.4). In the medieval period, such individuals, of course, included apostates

(David Hakohen Responsa Radak Bayit 11.1 -2). The Shulhan

Arukh continued this division of opinion, so Caro insisted that honor due to a parent was

biological, while Isserles felt that it is dependent upon the moral status of the parents

(Shulhan Arukh Yoreh Deah 240.18, 241.4). In the final analysis tradition would require

qaddish even for convicted criminals (see “Reciting Qaddish for a Convicted

Criminal”) as death brought atonement and qaddish added to such atonement (San. 44a,

56a, 104a). As you have asked specifically about qaddish, we must ask what

additional purpose it serves in our age. We normally recite qaddish in order to overcome

our sorrow and to make us feel at peace again with God and the world around us (see W. Jacob,

American Reform Responsa, #117). In this instance, upon the father’s death it will not

only be necessary to make peace with religious feelings about God, but also with the feelings

toward the father and the memories of the past. The recital of the qaddish should help in

this regard. Therefore, despite all personal bitterness and the division of opinion in our tradition

on this matter, the recital of the qaddish upon the father’s death would be appropriate and

should be beneficial.July 1984

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 27-28

CCAR RESPONSA

New American Reform Responsa

16. Incense

QUESTION: A group of Jews interested in meditation wish to use incense as part of their service. Their liturgy is normative Jewish. In place of a sermon, they meditate and feel that incense might help them and be appropriate as it was used in ancient times. (Norman Cohen, San Jose CA)ANSWER: Incense was used continuously in the worship in the Bible. We find lengthy descriptions and they even provide details of precise mixtures of the ingredients. This material was further expanded subsequently in the Mishnah and the Talmud. A good deal of modern work in studying the plant material has been done. However, the interest in incense and its use ended with the Temple. This was a form of worship which was related to the sacrifices and therefore could not be replicated in the synagogue except through readings, and these occurred in various points of the service particularly at the Friday Evening service. In other words, this along with all other matters associated with the Temple was limited to Temple worship and not considered transferable. There is nothing which would prohibit the use of incense for this Jewish meditation group as long as they made no effort to copy the ritual of the ancient Temple, but simply did whatever they felt appropriate for their meditation. This might be considered as imitation of the Gentile community as incense continues to be used in Catholic Christians as well as oriental religious services. We should therefore be cautious and look closely at the motivation of this group. Although we would not recommend the use of incense, there is no impediment to its use by this group.October 1990

If needed, please consult Abbreviations used in CCAR Responsa.

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