By SHLOMO BRODYHIV311(photo credit: Piotr Filter/Rambam Medical Center)
Unlike in some religions, most Jewish medical ethicists have taken a generally positive attitude toward new assisted reproductive technologies, even as they impose restrictions and conditions on their use. This essay will focus on questions of artificial insemination (AI) with sperm from either the woman’s husband (AIH) or a donor (AID), leaving questions regarding other technologies for another occasion. As always, one should consult with a doctor and rabbi to determine the proper approach for each individual situation.One immediate legal problem facing all reproductive treatments is the method of semen procurement necessary to test whether the infertility stems from the male contribution. Throughout the world, this is usually achieved through some form of masturbation, which induces ejaculation. However, the wasteful emission of seed (hash’hatat zera) is prohibited under Jewish law, as exemplified by the biblical episode of Er and Onan, spurring the name “onanism” for coitus interruptus.Commentators dispute whether this prohibition falls under the general biblical proscription of illicit sexual relations, represents an independent prohibition, or was banned by rabbinic decree. Kabbalistic sources further emphasized the prohibition, leading a few decisors to ban this treatment entirely. Others, however, contended that testing on men should only be delayed until other sources of infertility were examined.The more lenient approach to semen procurement for both testing and insemination, taken by several decisors such as rabbis Chaim Grodzinsky and Ovadia Yosef, asserts that seminal emission toward a goal of procreation is not considered “wasteful.” They base their position, in part, on rabbinic sources that allow the spillage of seed for some form of overriding purpose, such as preventing a prohibited sexual relationship or, significantly, to test for certain forms of sexual impotence that would impose severe marital restrictions. Other scholars have further cited medieval precedents that permit, on an irregular basis, the inevitable spilling of seed for medical purposes or even for intimate pleasure.Following this approach, most decisors today permit AIH, either through the placement of the husband’s sperm into his wife’s reproductive tract or through in-vitro fertilization (IVF), in which the couple’s sperm and egg are combined in an incubator before the embryo is transferred to the uterus. When possible, semen procurement with a medical condom is preferred, with additional oversight strongly suggested to prevent mix-ups in the laboratory.FREQUENTLY, HOWEVER, a husband remains too infertile for insemination, raising heated questions over the propriety of using a donor’s sperm. Many decisors have objected to AID for moral and legal reasons. Rabbi Immanuel Jakobovits, for example, decried the “mechanical” nature of artificial reproduction outside the marital framework, while Rabbi Yaakov Breisch deemed it an abominable act akin to the sexual depravities performed by ancient Canaanites and Egyptians. Other decisors, like Rabbi Yoel Teitelbaum, claimed that AID was akin to adultery, violating the prohibition “You shall not lie carnally for seed with your neighbor’s wife” (Leviticus 18:20), and thereby producing an illegitimate child (mamzer).Additionally, Jewish law only recognizes natural paternity created by the biological parent, thereby making the (not publicly known) sperm donor the legal father. As such, some decisors prohibited AID because they feared that the child would accidentally become involved in an incestuous relationship.Other scholars, however, led by Rabbi Moshe Feinstein, forcefully argued against any claims that AID was the legal equivalent of adultery, contending that physical sexual relations must occur to violate that severe prohibition. As proof, they cited two rabbinic texts, one Talmudic and the other medieval, which depicted how a woman became accidentally pregnant without sexual relations and how this did not impinge on the legal status of her child. In one case, the woman conceived from using bathwater in which a man had previously bathed, while in the other case she had lain down on soiled sheets. As Prof. Simcha Emanuel has documented, belief in such types of insemination was also found in medieval Muslim and Christian circles, even as many dismissed such tales as mythical.While some decisors claimed that one could not prove anything from bizarre acts of unintentional insemination, Feinstein argued that these passages proved that a child from non-sexual insemination would not be illegitimate because no illicit sexual relations had occurred. Others further argued that there was nothing abominable about infertile couples bearing children in this manner, provided that they were prepared emotionally and psychologically for such a procedure.Nevertheless, Feinstein shared concerns that the product of AID might unintentionally become involved in an incestuous relationship. He therefore argued that one should only use sperm from a non-Jewish donor, whose paternity is not recognized when his seed produces a Jewish child to a Jewess. (Outside Israel, he argued, one can assume that a sperm donor is not Jewish, while within Israel, reproductive centers can ensure the identity of a donor upon request.) While some scholars initially scorned Feinstein’s position, it has become the dominant position within rabbinic circles, thus enabling the birth of an untold number of Jewish babies.
