Caesarean Operation on Dying Woman Artificial Insemination

1. What is the Jewish law concerning performing a Caesarean section on a woman immediately after death?

2. What is the Jewish law concerning performing a Caesarean section on a dying woman?

3. What is the Jewish law concerning artificial insem ination, (a) using the husband’s semen, (b) using a donor’s semen?(From Dr. J. P. Greenhill, Chicago, Illinois)

1. The performance of a Caesarean section on a dead woman in hope of saving the baby is certainly permitted in Jewish law. The discussion is found in the Talmud(b. Arachin la), the law originating in a discussion concerning a woman criminal condemned to death. From that theme the law moves on to any pregnant woman who dies (i.e., who is not a criminal). The Talmud there says one may even bring a knife on the Sabbath to cut open the woman in order to save the baby. That means that they realize there would be no time for delay; therefore, if it was on the Sabbath that she died, the Sabbath could be violated to carry the knife (carrying being normally forbidden on the Sabbath) in order to perform the necessary Caesarean section.

However, it must be stated that in more recent years there has been considerable objection to performing a Caesarean section on a woman who has died. The opinions seem to contradict each other, and that fact, when explained, becomes of significance to the whole discussion. Joseph Schwartz, in “Duda’ay Ha-sodeh” 78 (the volume of responsa of Elazar Deutsch, his father-in-law), is strongly opposed to this operation and cites others who are likewise opposed, as, for example, Moses Teitelbaum (“Heshiv Moshe” 13), the Responsa Ramatz, Yore Deah 85, and others, but he is surprised that the great Solomon Kluger, of Brody, contradicts himself on this question. Kluger in his responsa (“Tuv Ta’am V’Da’as” III, Vol. 2, 243) favors the operation. Yet in the same volume (223), he seems to oppose it. The explanation of this general objection to Caesarean operations among the later authorities is based ultimately upon the fourteenth-century legal work “Issur Ve-hetter.” In Part 29, 11, this code says that the Talmud favors the operation, “but we do not because we are no longer skilled in the operation.” This explains also why Jacob Reischer (eighteenth century) is opposed to it. He accepts the explanation of the “Issur Ve-hetter,” that we no longer do it because we are not skilled at the operation, and that therefore we would not save the child and thus would mutilate the dead to no purpose. So it is clear that in modern times, where we are skilled, the opinions of modern Orthodox scholars would be to revert to the standpoint of the Talmud and permit a Caesarean on a dead woman to save her child, since now it can be done successfully.

2. As to performing a Caesarean section on a dying woman in order to save the child: This is a complex question because it is not clear to me from the question what the precise cause is from which the woman is dying. Let us take various possibilities in order:

(a) If an otherwise healthy woman is dying because of the child, and we are to make a choice here between saving child or mother, the Jewish law is absolutely clear: the mother must be saved at the expense of the unborn child. The law is based upon the laws concerning a “pursuing killer.” If a man is pursuing another man with intent to kill him, we must first try to persuade him to desist, but having failed, we may take the killer’s life in order to save the life of the one he intends to destroy. The unborn child is here considered to be a “pursuing killer,” and the law is that we may cut up the child in the mother’s womb or use some medicine in order that the mother may live. In other words, if we have a choice, we must choose to save the mother. If, however, the child puts forth its head (and there is some discussion that this applies even if it puts forth its feet), then it is considered “a soul,” and we have no right to make a choice between souls. We must then let nature take its course. If, however, the child has not appeared at all, we destroy it in order to save the mother’s life. This is based upon the Mishna (Oholot VII, 6), where the explanation is given that “her life has precedence over the life of the child,” and is codified in the law in the Shulchan Aruch (Choshen Mishpot 425 : 2). Of course, if a Caesarean has a good chance to save both mother and child, there is no question that a Caesarean may be performed. But if the Caesarean would sacrifice an otherwise healthy woman in order to save the child, such action is against the Jewish law.

(b) But there are special circumstances which may require and justify a different decision. If the physician waits until the mother dies, the postmortem Caesarean must be accomplished within three minutes at the most or the child will not survive. There is more time for a successful opera-tion, and the infant has a better chance of survival, if the operation is begun while the mother is alive. Suppose, then, that the mother is dying of some disease and has (aside from the pregnancy) only half an hour to live. If the Caesarean is performed, it will certainly end the mother’s life, but it will increase the chances of the infant’s survival.

In general, the law is opposed to any hastening of death. It is forbidden even to move a pillow from under the head of a dying person in order to speed his death (Yore Deah 39a). But how much life would the mother (in this case) gain if the child were destroyed? If very little, then this is a matter of judgment and the law is not clear, as it cannot be, under these circumstances. Though there is no clear law on this choice, the remarkable thing is that the great physician and lawgiver Maimonides makes the only definite statement that is directly relevant to your question. You know well that Caesareans were not successfully performed until recent centuries; Maimonides, who lived in the twelfth century, did not believe, from a medical viewpoint that a Caesarean section could be successfully performed, i.e., with the mother surviving. In his Commentary to the Mishna (at the end of chap. 2 of Bechoroth), he says, discussing a Caesarean: “We do this in the case of a woman who has difficulty in giving birth and has reached to the gates of death.” This statement does not contradict the law in the Shulchan Aruch, mentioned above, that in choosing between saving the mother or the child, we must choose to save the mother. Maimonides could not contradict that law because it is based upon the Talmud. What he means is that when the mother is already dying and it is too late to save her, then we perform a Caesarean to save the child. This is almost exactly your case and has his great authority behind it. Even though this was not taken up by the later codifiers and embodied in the later law, still, from the fact that Maimonides mentions it as a regular practice and that no later legal commentator has, as far as I know, expressed any objection to it, it is clear that there was a general practice at one time to perform a Caesarean to save the child if the woman was dying anyway. Therefore, on the authority of Maimonides, I would say, taking due regard for the doubts expressed above, that if the mother has very little prospect of life, in the spirit of Jewish law, such Caesarean as you have in mind may be performed. I assume, of course, that there would be a con sensus of opinion of a group of doctors, that the close relatives would agree, and that the laws of the state would permit the operation under these circumstances.

3. I have already written a full responsum on the subject of artificial insemination from the Reform standpoint.

As for the Orthodox point of view on the question, it is veering increasingly toward disapproval. The chief element in this negative attitude is not the status of the woman or of the child, but the process of obtaining the seed. Most of the more recent discussions consider the taking of the seed to be a sinful act, and the fact that some of the seed is bound to be wasted is also sinful.

However, even in the Orthodox attitude there are some basic ideas which, in their implication, easily lead to a more affirmative decision. The Orthodox scholars generally admit that the injection of the seed of a stranger is not an adulterous act, and therefore the woman’s relationship to her husband is not thereby impaired. If the act were considered a species of adultery, her husband would then be obliged to divorce her.

Since the operation is not deemed to be adulterous, the child that is born of it is not illegitimate (see especially Joshua Baumol, “Emek Halacha” II, 68). Furthermore, even if the seed is not taken from the husband but from some donor, the child is not deemed to be the child of the donor but of the woman, and therefore belongs to her family (see Ben Zion Uziel, the late Sephardic Chief Rabbi of Israel, “Mishp’tey Uziel,” Even Hoezer 19). The liberal decisions favoring artificial insemination are based upon these fundamental attitudes of the law. Thus the Central Conference of American Rabbis has accepted a report of its Responsa Committee permitting the injection (see Central Conference of American Rabbis Yearbook, 1953). These decisions of the Conference are not meant, of course, to govern the members and their congregations (in any legal sense) but are intended as guidance and counsel.

In general, the liberal attitudes on this subject are not affected by the negative mood of recent Orthodox opinion, but are based upon what is deemed to be the fundamental principles of the law and tradition. Artificial insemination is therefore favored if both husband and wife wish it. It is preferable, of course, for the seed to be taken from the husband, but even if a stranger is the donor there is no objection.

Nor is the insemination objectionable even if the donor is not Jewish. Actually, there may be some advantage in that fact. For while legally the resulting child is not deemed to be the child of the donor but of its mother, nevertheless there would be some biological, hereditary kinship between that child and the children of the donor in his own marriage. In that case, if the donor is Gentile, the likelihood is far less that the child born of the insemination might some day marry one of his own blood kin.