In Vitro Fertilization and the Status of the Embryo
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)
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
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.
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.
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.