American Reform Responsa
158. Artificial Insemination
(Vol. LXII, 1952, pp. 125-128)
QUESTION: Is artificial insemination permitted by Jewish Law?
ANSWER: Talmudic and Rabbinic sources do not discuss, nor even mention, artificial insemination as understood (and practiced) in our day. Artificial insemination, with which we are concerned, is premeditated, planned. The physician performs it upon request by the parents, applying either the husband’s sperm or that of a stranger. In the latter case, the identity of the donor must not be revealed to the parents (nor to the resulting child, of course).
Yet, since artificial insemination concerns family life–an area meticulously regulated and steadily supervised by Jewish religious leaders of all times–it is quite natural that rabbis of our day investigate the matter in order to find a solution that would be in character with Jewish practice and thought.
In an attempt at a solution of the problem, the first step, as a matter of course, is to search for sources that may have some bearing on the subject. Whereas many passages from Talmud and Rabbinic literature could be, somehow, linked to the problem (as has been done), only those passages shall be discussed here which possess (or are believed to possess) real significance for the issue:
1. In Talmud Bavli (Chagiga 14b), the question is raised whether a virgin who became pregnant is allowed to be married by the High Priest (in view of Leviticus 21:13-14, “Isha bivtuleiha”). Subsequently (14b-15a) the possibilities of a virgin’s becoming pregnant are discussed. One of the possibilities suggested is that she was impregnated in a bath (from seed deposited there by a man).
Let us keep in mind that this incident, considered by some rabbis as being analogous to artificial insemination is, in fact an accident, a calamity; the pregnancy was undesired. It was not artificial in the sense in which this expression is being used today.
2. Chelkat Mechokek (Moses ben Isaac Jehudah Lima) on Shulchan Aruch, Even Ha-ezer 1, note 8, raises the question (in connection with the Mamzer) whether the father fulfilled the commandment of Periya Ureviya (procreation) if his wife was impregnated in the bath, and whether the resulting child is his child in every respect. Instead of giving a clear answer, Chelkat Mechokek cites an incident from Likutei Maharil. According to this incident, Ben Sira was the result of a bath insemination (yet no blemish is attached to him).
3. Beit Shemu-el (Samuel ben Uri Phoebus), ibid., note 10, cites Chelkat Mechokek’s question and answers it by referring in brief toHagahot Semak, a note by Perez (ben Elijah) on Semak (Isaac ben Joseph of Corbeil). This note is related fully in Bach (Joel Sirkes) onTur, Yoreh De-a 195, and tells us the following: A menstruous woman may lie on the sheet of her husband but not on that of a stranger lest she become pregnant from the seed of a stranger (emitted on the sheet). But why should she not be afraid of becoming pregnant from the seed of her husband while she is menstruating and thus producing a Ben Hanida (child of a menstruous woman), which is prohibited? The answer: Since there is no prohibited intercourse, the child is entirely kasher (no stigma attached to him), even if she became pregnant (in such a way) by a stranger, since Ben Sira was kasher (see above). Yet, if it is a stranger, we have to be cautious (i.e., she must not lie on his sheet), because of the possibility that the resulting child might marry his own sister by his father (whose identity is unknown). Beit Shemu-el concludes from this note that the child resulting from such an insemination is that of the emitter of the seed in every respect.
This conclusion, needless to say, is irreconcilable with the fundamental rule of artificial insemination, requiring that the child belong to the mother’s husband, not to the donor of the seed.
4. Mishneh Lamelech (Judah Rosanes) on Maimonides’ Mishneh Torah, Hilchot Ishut XV.4, besides citing Likutei Maharil, Chelkat Mechokek, Hagahot Semak (see above), remarks: “Ein safek dela ne-esra leva-alah mishum de-ein kan bi-at isur” (“There is no doubt that she does not become prohibited to her husband because no prohibited intercourse took place”).
What Mishneh Lamelech clarifies is that accidental insemination in a bath or on a sheet (i.e., without direct contact with a man) cannot be considered as adultery, which would make her prohibited to her husband (rape of a Kohen’s wife would have the same result). For our problem, this does not reveal any clue, since we are not trying to solve the question of accidental insemination. Planned artificial insemination involves some problems which do not exist at all with regard to accidental insemination. One of these problems is whether or not the emitting of seed for artificial insemination would be Hotsa-at zera levatala (wasting of seed), which is prohibited. Let us return to this point in a brief reference to recent responsa on the subject.
One of these is found in Mishpetei Uzi-el (Tel Aviv, 1938), part II, Even Ha-ezer Responsum 19, pp. 46-69, by Ben Zion Uziel. Uziel equates, basically, artificial insemination with accidental (bath, sheet) insemination. But, as to the emitting of seed for bath or artificial insemination, he can see no way whatever for permitting it. Uziel’s concluding words are that the matter belongs to the category of the Halachot which bear the designation “Halacha ve-ein morin kach,” i.e., Halacha which must not be translated into practice (cf. Michael Guttmann, Zur Einleitung in die Halacha II, p. 91 ).
Haim F. Epstein, in his Teshuva Shelema (St. Louis, 1941), vol. II, Even Ha-ezer, Responsum 4, pp. 8-10, like Uziel, basically equating artificial insemination with accidental insemination, finds no way of allowing the use of a stranger’s sperm. However, as to the use of the husband’s seed for artificial insemination, he states “Efshar dezeh mutar,” i.e., “It is possible that this is allowed,” if the physician finds that this is the only possible way for his begetting a child. Epstein’s argument as to the necessity of limiting of the concept Hotsa-at zera levatala (wasting of seed), based primarily on Yevamot 76a, is sound and provides at least some justification for his hesitant conclusion (cf. also Responsum 5, ibid.).
Let me sum up the problem of artificial insemina tion considered from the viewpoint of historical Judaism, as follows:
Artificial insemination, as understood and practiced today, is not mentioned in Rabbinic literature. What we find here is merely accidental, indirect insemination. We must also keep in mind that the bath insemination of the Talmud is not merely an ex post facto case, but it also involves the concept of Ones, meaning “accident.” Jewish law mostly, though not always, clearly distinguishes between accidental and premeditated deed. I do not believe that we do justice to Jewish law or to Judaism by disregarding its concepts and principles in an effort to force certain conclusions, one way or the other.
Also the fact that the laws and discussions of the Rabbis with regard to bath insemination are of a theoretical nature, is of importance. Not one incident of actual bath insemination is attested to in Jewish literature. What we find, including the Ben Sira case, is mere Agada. Had such an incident actually occurred, the Rabbis might have found a solution entirely different from the known theoretical considerations. Noteworthy is the fact that the Sages never recommend bath insemination, even if this were the only means of saving a marriage, which ranks very high with the Rabbis. A case in point is an incident in Yevamot 65b (see ibid.). I do not claim that the last word has been said on artificial insemination in its relation to Jewish life and practice. It is hardly possible to draw safe conclusions from the theoretical accidental insemination found in Jewish sources to the artificial insemination of our day. While indications strongly point to a negative answer (particularly if the seed of a stranger is to be used), other aspects of Judaism must be explored as well, in order to arrive at a conclusion reflecting Judaism at its best.
Whereas I do not see sufficient evidence for recommending the issuance of a prohibition against artificial insemination, I should like to caution against a hasty Heter (permit) for which I found no backing worth the name in our Jewish teachings.
S.B. Freehof, “Artificial Insemination,” Reform Responsa, pp. 212ff.