The twentieth century saw humanity’s perceptions of life transformed in almost every way possible. Rabbis have faced a seemingly endless list of new halachic issues. Challenged by a world that is growing increasingly sophisticated at a pace unparalleled in all of history, they must constantly apply Divine law to new phenomena.1See Rav Faitel Levin’s essay, “Cheiker Hahalacha B’idan Hatechnologia Hechadash” (Techumin 7:464-485), which presents broad and fundamental perspectives on the way that Halachah grapples with the challenges posed by modernity. On p. 471, he specifically focuses on the issue of IVF. In Vitro Fertilization (IVF), which consists of removing an egg from a woman’s body, fertilizing it, and then transferring it into either her or another woman’s womb, exemplifies the complex issues that now face halachic authorities.2Dr. Mordechai Halperin (Proceedings of the Association of Orthodox Jewish Scientists 9:197-212) summarizes the development of this issue until 1987.
Is IVF Permitted?
A great contemporary authority, Rav Eliezer Waldenberg (Tzitz Eliezer 15:45) objected to the entire procedure of IVF. Rav Waldenberg argues that whenever the fertilization fails, the husband has ejaculated to waste. Even when one sperm cell does fertilize the egg, Rav Waldenberg notes that the rest of the semen goes to waste. Rav Waldenberg further claims that one does not fulfill the mitzvah to have children (peru ur’vu) on any level through IVF.3It seems that both artificial insemination and IVF fulfill peru ur’vu according to most authorities. See Taharat Habayit (1:1:6 note 6), where Rav Ovadia Yosef rules that a man fulfills peru ur’vu by fathering children through artificial insemination, Assia (34:5), Contemporary Halakhic Problems (4:240), and Techumin (1:287 and 24:156-159). For Rav Waldenberg’s opinion of artificially inseminating a woman with her husband’s semen (as opposed to IVF), see Teshuvot Tzitz Eliezer 22:57. Thus, he writes:
What does one gain by presenting a way to create children in this manner, if the creators of this child will not fulfill any Divine command and the practice of IVF will create profound and complex problems, which have the potential to cause the level of human morality to deteriorate more than a thousandfold?
Rav Waldenberg expresses particular concern that IVF will lead to cloning, which he deems an utter abomination because it could distort the human character.4For further discussion of the propriety of cloning see Techumin (18:150-160), Tradition (32:3:31-86), and The Torah U-Madda Journal (9:182-247). Most halachic authorities reject Rav Waldenberg’s approach.5For a critique of Rav Waldenberg’s responsum, see Rav Avigdor Nebenzahl’s essay in Assia (vol. 34, Tishrei 5743; summarized in Nishmat Avraham 3:14-15). Although most poskim reject Rav Waldenberg’s approach in the context of IVF, they do consider it in other contexts. For example, Rav Yigal Shafran (Techumin 20:347-352) uses it to argue against inseminating a woman with the sperm of her husband who died childless, reasoning that “this is an action that creates androlomosya [pandemonium] in the classical family structure…. This type of action can reverse the moral level of the world a thousand levels.” Rav Shafran writes that the same applies to a single woman being artificially inseminated.
Rav Ovadia Yosef (Teshuvot Yabia Omer vol. 8, Even Ha’ezer 21) permits IVF for an infertile couple. He specifically permits IVF when the wife’s eggs are being fertilized, but he does not address the propriety of IVF when another woman donates the egg. Rav Yosef Shalom Eliashiv (cited in Nishmat Avraham 5:113) also permits IVF when the wife’s eggs are used, but not when using the egg of another woman. He insists on supervision of the IVF process to insure that only the genetic material of the husband and wife are used.6See The Jerusalem Report (July 3, 2000 pp.12-16), which notes several incidents of suspected improprieties by medical staff in Israel, the country presumed to have the highest IVF rate in the world. Rav Ovadia Yosef (see Yabia Omer vol. 8, Even Ha’ezer 21:2) and Rav Yaakov Ariel (Techumin 16:180) also insist on proper supervision of the IVF process by observant Jews. Rav Gidon Weitzman reports that Rav Yosef Shalom Eliashiv believes that someone external to the system must supervise the IVF procedures. According to his view, even observant Jewish doctors require proper rabbinical supervision (also see Nishmat Avraham 3:8). In cases where it is impossible to have rabbinical supervision of the IVF process, Rav Zalman Nechemia Goldberg told me that the couple should impress upon the doctors that Jewish belief places a great emphasis on the biological identity of the parents, and that any tampering would be viewed with severe distress and concern. Thus, the doctors will fear (mirtat) mixing up different eggs and sperm. Rav Zalman Nechemia noted that DNA testing that can detect if a doctor improperly tampered with the process. In Halachah, we even believe those whom we would not ordinarily trust if they know that a reasonable possibility exists of their deception being discovered (milta d’avidi l’igluyei). Accordingly, Rav Zalman Nechemia rules that we may trust a non-Jewish or non-observant doctor who understands that we condemn deception and realizes that he may be caught should he attempt to deceive us (see Chagigah 20b and Rosh Hashanah 22b). Rav Gidon Weitzman informs me, though, that Rav Eliashiv believes that in this situation we may not rely upon mirtat. Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 5:113) adds that an infertile couple is not obligated to undergo IVF in order to have children.7See Nishmat Avraham 4:186, where Rav Shlomo Zalman is cited as objecting to IVF when the egg is not from the wife or when a woman other than the wife “hosts” the fertilized egg and gives birth to the child.
Although most authorities do not fundamentally object to IVF, at least for married couples, several major problems do arise during IVF procedures,8See Rav Asher Weiss’s and Rav Gidon Weitzman’s essays in Techumin (23:220-230) regarding the performance of IVF-related procedures on Shabbat. Rav Weiss rules that the halachic status of choleh she’ein bo sakanah (victim of a non-life-threatening illness) applies to the couple (which entails certain leniencies, as we discussed in an earlier chapter), and Rav Weitzman cites many other authorities who share this view. Nevertheless, Rav Weiss notes that in practice, it is always preferable to perform all necessary procedures during the week, as halachic questions can arise during every step of a procedure on Shabbat. including procuring the husband’s sperm in a halachically acceptable manner, the permissibility of paying a woman to donate an ovum (if one’s Rav permits using a donated ovum), and concern for the possible mamzeirut (illegitimate status) of the donor (if permitted),9Concern for mamzeirut (described in the Sifrei’s comments to Devarim 23:3) could arise if we were to worry that the donor is a Jew born from an illicit relationship (other than nidah) punishable by kareit (such as adultery or incest). Rav Zalman Nechemia Goldberg, Rav David Feinstein, and Rav J. David Bleich all told me (in 1991) that we generally need not worry about this problem when doing IVF (see Techumin 10:281), as the majority of donors (rov) are not mamzeirim. Nevertheless, if we know for sure that a particular donor was a mamzeir, the resulting child would presumably also be a mamzeir (see Tzitz Eliezer 15:45). Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha’ezer 3:11) claims, however, that a man cannot transmit mamzeirut to children whom he fathers without a sexual act. Accordingly, were a mamzeir to donate sperm for IVF, the child would not be a mamzeir. However, other authorities give no indication of accepting Rav Moshe’s opinion. and the credibility of a non-observant or non-Jewish doctor’s assertion that he used the sperm and/or ovum of a particular person.
Defining Motherhood
In some cases of IVF, doctors implant the fertilized embryos inside a woman other than the source of the ovum.10Understandably, couples who require IVF normally wish for the procedure to be performed on the wife’s own egg, after which she will carry the fetus herself. However, sometimes the wife has a medical condition that prevents her from carrying a fetus. In such a situation, she might provide the egg for IVF and seek a surrogate mother to carry the fetus. In other cases, the wife cannot produce eggs, so she seeks an egg donor for IVF, but she then wishes to carry the fetus herself. A couple should consult their Rav, however, as to whether it is permissible to undergo either of these types of IVF. These situations raise the difficult issue of determining whom the Halachah views as the fetus’s mother. Authorities vigorously debate the definition of motherhood, with each side seeking to marshal proofs from classical sources.
The Aramaic Targum (translation of the Torah) attributed to Yonatan Ben Uzziel (Bereishit 30:21) cites a tradition that Rachel conceived and carried Dinah, while Leah conceived and carried Yosef. Leah prayed on Rachel’s behalf that she should give birth to a boy and thus be the mother of one of the tribes. God accepted Leah’s pleas on behalf of her sister and exchanged the two fetuses, so Leah’s womb carried Dinah and Rachel’s womb carried Yosef. Since the Torah records Leah as Dinah’s mother and Rachel as Yosef’s mother, one might conclude that according to this Targum, giving birth confers the status of motherhood.
However, the Tur (Peirush Tur Ha’aroch on Bereishit 46:10) explains this midrash in a manner that seemingly indicates the exact opposite, that the ovum donor is the halachic mother in a case of surrogate motherhood. In analyzing the midrash (quoted by Rashi on Bereishit 46:10) that Shimon married his sister, Dinah, the Tur wonders why their union did not constitute incest. After all, Shimon and Dinah were both children of Leah, and marrying a maternal sister was prohibited even before the giving of the Torah. The Tur answers that, as quoted above from Targum Yonatan, Dinah began in Rachel’s womb. Even after she was switched to Leah’s womb, the Halachah still considered her to be Rachel’s daughter, so she and Shimon thus had different mothers. Before the Torah was given, one was allowed to marry a paternal half-sister.11Even nowadays, Noachide Law (Halachah pertaining to non-Jews) permits marrying a paternal half-sister, while a Jew may not marry any half-sister; see Vayikra 18:9, Rambam (Hilchot Melachim 9:5), and Rashi (Bereishit 20:12). Therefore, Leah’s son, Shimon, did not violate the Halachah when he married Rachel’s daughter, Dinah. We thus see that according to the Tur, the Halachah defines motherhood by the woman whose egg forms the fetus, even if another woman gives birth to the baby. Of course, Aggadic passages usually cannot serve as definitive halachic proofs.12See Yerushalmi (Pe’ah 2:4), Encyclopedia Talmudit (1:62), Teshuvot Yabia Omer (vol. 8, Even Ha’ezer 21:2), and Nishmat Avraham (3:17). Nevertheless, the Tur’s words merit serious halachic consideration, especially because he is explaining how to understand the story from a halachic perspective.
Arguments in Favor of the Birth Mother
Megillat Esther (2:7) appears to repeat itself by recounting both that Esther had no mother or father and that her parents died. The Gemara (Megillah 13a) explains that the apparent redundancy teaches that Esther never had a parent. After she was conceived her father died, and her mother died in childbirth. Rashi explains that at the moment at which she could have been identified as Esther’s mother, the woman died. This seems to imply that the act of giving birth confers the status of motherhood, as opposed to the act of conception. Once again, however, we are dealing with an Aggadic passage, so it might lack halachic significance.
Rav Zalman Nechemia Goldberg (Techumin 5:252) offers the strongest proof for those who define motherhood by giving birth.13In his essay, Rav Zalman Nechemia (Techumin 5:249-252) seeks to demonstrate that Rav Akiva Eiger (commentary to Yoreh De’ah 87:6) believes that conception establishes motherhood, whereas Rav Yosef Engel (Beit HaOtzar, entry “Avot”) considers birth the determining factor. He cites a passage from the Gemara (Yevamot 97b) that discusses a non-Jewish woman who conceived twins and converted during her pregnancy. The Gemara considers the babies to be half-brothers on their mother’s side.14The child of a Jewish mother and non-Jewish father is not considered to be related to his father, so he does not have any paternal relatives (see Kiddushin 68b-69a and Rambam, Hilchot Melachim 8:8). If the mother-son relationship between the woman and her twins had begun at the time of conception, her subsequent conversion would have terminated it, based on the principle of ger shenitgayer kekatan shenolad dami (a convert is like a newborn baby, so he is no longer related to his original family). Accordingly, if the Gemara rules that this woman is related to her twins, the mother-son relationship must have come into existence only after her conversion. We must hence conclude that birth, and not conception, confers the status of motherhood. Indeed, Rav Eliezer Waldenberg (cited in Nishmat Avraham 4:184-186) writes that the birth mother is the baby’s halachic mother. Rav Eliashiv (cited in Nishmat Avraham 4:184) also favors treating the birth mother as the halachic mother, but, as recorded in 1990, he believes that no definitive halachic resolution has been reached. Rav Gidon Weitzman informs me that Rav Mordechai Eliyahu believes that it is clear that the birth mother is the halachic mother.
Arguments in Favor of the Ovum Donor
Rav Ezra Bick (Techumin 7:266-270) disputes these two proofs. He argues that birth establishes or completes a maternal relationship only if the woman who gave birth to the child donated the maternal genetic material. Both Esther’s mother and the female convert conceived the babies to whom they ultimately gave birth. On the other hand, giving birth to a baby who was formed from another woman’s egg does not establish a mother-child relationship.
Rav Bick, in turn, cites a Talmudic passage (Chulin 70a) that discusses the status of a fetus who is transferred from one animal to another. The Gemara uses the word “dideih” (“his”) to describe the fetus’s relation to his genetic mother, whereas the second female animal (the birth mother) is described as “lav dideih” (“not his [mother]”). Rav Bick therefore concludes that birth does not confer the status of motherhood upon a woman unless she has provided the maternal genetic material of the child. A counter-argument might be that in the case of the animal-fetus transplant, removal of the fetus from the first animal constitutes an act of birth, so the second animal acts merely as an incubator. One cannot claim, however, that the harvesting of an ovum from a woman is considered an act of birth.15Many of the articles that we cite address fetal transplants, which seem to depend upon many of the same halachic issues as IVF. Rav Bick’s proof from Chulin 70a may apply only to fetal transplants. Also see Rav Bick’s essay in the Fall 1993 issue of Tradition (28:1:28-45), where he offers a novel approach for the argument that the woman who gave birth is the halachic mother. Rav J. David Bleich sharply criticizes Rav Bick’s essay in the subsequent issue of Tradition (28:2:52-56). Nevertheless, Rav Aharon Lichtenstein believes that the woman who donates the ovum is the halachic mother.16See Alon Shvut Bogrim (14:147), where Rav Shmuel David describes a ruling that he received from Rav Lichtenstein in an actual case. A Kohein and his wife donated the sperm and egg cells to create an embryo that doctors then transferred into the womb of a non-Jewish surrogate mother. The non-Jewish woman gave birth to triplets, a girl and two boys, and returned them to the Jewish couple to raise. Rav Lichtenstein told Rav David to convert the babies out of deference to those authorities who consider the non-Jewish woman to be their mother. Nevertheless, Rav Lichtenstein permitted the sons to perform all the functions of Kohanim, for he fundamentally believes that they are considered descendants of the Jewish couple, not converts. Similarly, he ruled that the daughter may marry a Kohein, whom a female convert may not marry (see Kiddushin 78a). Rav Yaakov Ariel (Techumin 16:177) writes that this position “appears more logical” than defining motherhood by giving birth.17For an infertile woman who wishes to have a child with her husband’s sperm and another woman’s egg, Rav Ariel recommends obtaining the egg from a non-Jewish woman. According to his position, this child will not be Jewish. After converting the baby, he or she will lack any formal Jewish lineage, thus avoiding many future complications, such as concern for incest with the egg donor’s relatives. If the husband in such a couple is a Kohein, Rav Ariel notes that he must inform his son that, although they are genetically related, they lack any halachic connection. Consequently, the son does not have the status of a Kohein. Rav Ariel insists that if the family has a name such as “Cohen” or “Katz,” they must change the family’s name, lest people mistake their children for Kohanim. Rav Gidon Weitzman (personal communication) observes that according to Rav Ariel’s approach, it may be preferable to request from the fertility specialist only girls in this case. Rav Mordechai Willig told me that he is also inclined to this position.
Rav Itamar Warhaftig (Techumin 5:268-269) cites another Aggadic source (Nidah 31a) to show that the woman who donates the ovum is the halachic mother. The Gemara describes the physical attributes that each of the “three partners” in childbirth - God, mother, and father - provides, taking for granted that the mother contributes to the genetic makeup of the child. Of course, since this passage is Aggadic, its halachic impact is questionable.
Rav J. David Bleich (Contemporary Halakhic Problems 4:251-258) points out that the passage in Yevamot (about the convert who gives birth to twins) merely proves that birth can establish a maternal relationship, but it does not prove that only birth can create this relationship. Accordingly, Rav Bleich suggests that perhaps a woman can become a mother either by conceiving or by giving birth. Hence, in cases of surrogate motherhood or ovum donations, a child might have two mothers!
Neither side has demonstrated its position in a conclusive manner.18In addition to these two main positions, Rav Shaul Yisraeli (Chavat Binyamin 2:68) presents a third approach. Based on the Talmudic teaching that a fetus is “mere liquid” for its first forty days (Yevamot 69b), Rav Yisraeli argues that the woman who is carrying the fetus on its fortieth day becomes its only mother, regardless of whether she donated the genetic material. Rav Yisraeli insists that transferring the fetus to a new womb after forty days in no way affects motherhood, even if the new carrier gives birth to the fetus. Also see Rav Shlomo Zalman Auerbach’s comments (cited in Nishmat Avraham 4:186) regarding whether carrying the fetus for forty days or three months before it is transferred to another woman’s womb would impact the determination of motherhood. Hence, absent a clear consensus, Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 4:186), Rav Zalman Nechemia Goldberg (Techumin 10:281), Rav David Feinstein (personal communication), and Rav J. David Bleich (personal communication) rule that one must act strictly in accordance with both opinions. According to them, if the donor of the ovum is not Jewish, the child needs a conversion. Moreover, Kohanim, who may not marry converts (Kiddushin 78a), should not marry any girls born from a non-Jewish donor (see Techumin 10:280). On the other hand, if the donor is Jewish, records must be kept to ensure that the child does not marry any of the donor’s other children (see Techumin 10:273-281).
Subsequent Complications
A number of other major issues emerge from the process of IVF. For example, authorities discuss the propriety of discarding fertilized eggs that are not transferred into a womb or using them for medical research. Rav Zalman Nechemia told me that he believes a fertilized egg does not have the status of a human life.19See Teshuvot Sheivet Halevi (5:47), who distinguishes between the halachic status of a fetus and a fertilized egg. Regarding the permissibility of violating Shabbat to save a fertilized egg, he leans towards prohibiting the desecration of Shabbat even if technology improves to the point where most fertilized eggs develop into viable babies. Rav Mordechai Eliyahu (Techumin 11:273) forbids desecrating Shabbat in order to save a fertilized egg that has yet to be implanted. He explained that an act must occur (transfer into a woman’s womb) in order for the fertilized egg to develop, so its status differs from fertilized ova in the mother’s womb, which develop independently. Rav Gidon Weitzman (speaking at the 5761 convention of Young Israel rabbis) similarly reported that many poskim permit discarding unused frozen embryos.20Rav Mordechai Eliyahu (Techumin 11:272-273) and Rav Chaim David Halevi (Teshuvot Mayim Chaim 61) permit discarding fertilized eggs that were not chosen for transfer into a womb. Also see Techumin (16:181-186) for Rav Itamar Warhaftig’s discussion of a complicated case that occurred in Israel. An egg was harvested from a woman, which was then fertilized with her husband’s sperm. However, the couple waited before transferring the embryo into the woman’s womb. While the embryo remained frozen, the couple separated and the husband fathered a child through another woman. The husband sought to dispose of the embryo, arguing that he did not wish to father a child with his wife under the new circumstances. The wife insisted that this embryo offered her only chance to have a child. Moreover, she claimed that her husband could not renege on his prior consent to participate in the IVF process. Although the couple did not present the case to a beit din, Rav Warhaftig ponders how a beit din would have ruled about it. See Techumin (22:392-411) for actual rulings of Israeli batei din regarding this issue.
Interestingly, the Rabbinical Council of America and Orthodox Union jointly sent a carefully worded letter (dated July 26, 2001) to President George W. Bush endorsing embryonic stem cell research on existing embryos, such as those created for the purpose of IVF, that would otherwise be discarded (see Appendix).21For a discussion of the halachic issues regarding stem-cell research, see Dr. Avraham Steinberg’s essay in Techumin (23:241-255).
IVF often results in a woman carrying many fetuses at once. In many cases, all of the fetuses will die if some of them are not eliminated. For a survey of the permissibility of reducing the number of fetuses in such a situation, see Nishmat Avraham (5:148-149), Techumin (11:272-275), and Rav J. David Bleich’s essay in Spring 1995 issue of Tradition (29:3:47-60).
Poskim also discuss whether one may use IVF as a means of genetic screening. Rav Shlomo Zalman Auerbach and Rav Eliashiv (cited in Techumin 21:107-116) reportedly permit producing children through IVF so that doctors can inspect the sperm’s and egg’s genetic makeup to verify that they are free of genetic flaws.
Rav Shlomo Zalman Auerbach (Minchat Shlomo 3:98:4)22This responsum appears as 124:1 in the Mahadura Tinyana of the Minchat Shlomo. questions whether a boy conceived through artificial insemination should have his brit milah on Shabbat.23Rav Shlomo Zalman bases his concern on a passage from the Gemara (Shabbat 135a) and a comment of Rabbeinu Chananeil (Chagigah 16a). The Gemara rules that we may circumcise on Shabbat only when the birth matches the Torah’s description: “When a woman conceives and gives birth to a boy” - in a natural manner, then he shall be circumcised “on the eighth day” (Vayikra 12:2-3) - even on Shabbat. A baby born by Caesarean delivery, however, may not be circumcised on Shabbat. Rav Hershel Schachter (in a lecture at Yeshiva University) ruled in practice against circumcising such a baby on Shabbat, and Rav J. David Bleich (Tradition 35:2) asserts that the same applies to a child who is conceived through in vitro fertilization.24Rav Bleich permits the parents to tell people that they have postponed the brit due to jaundice, or some other reason, in order to avoid publicly revealing how the baby was conceived. However, Rav Ovadia Yosef (comments to Nishmat Avraham vol. 4 p. 226; Yalkut Yosef, Sova Semachot 2:151-152) permits circumcising a baby conceived through artificial insemination or IVF on Shabbat.25He reasons that in a Caesarean birth (see footnote 23), the birth process itself is unnatural, whereas artificial insemination involves an unusual conception followed by a completely natural birth. Rav Gidon Weitzman reports that Rav Mordechai Eliyahu (addressing the 5762 Machon Puah conference) permitted circumcising a baby on Shabbat if he was conceived through IVF. Rav Weitzman also reports that Rav Yosef Shalom Eliashiv permitted circumcising a boy on Shabbat who was conceived through intrauterine insemination (IUI). Parents should ask their rabbi if they must discretely inform the mohel of the baby’s background (as the mohel probably does not know the conception’s circumstances).
Conclusion
As is evident from our discussion, IVF constitutes an extremely sensitive area, both in terms of Halachah and in terms of human emotions. Only close cooperation between one’s personal Rav and a leading halachic authority can help a couple through this difficult procedure with competent and sensitive guidance.26It is also strongly advised to consult with Machon Puah (questions@puah.org.il), a highly acclaimed institute in Jerusalem that deals with the interface of Halachah and fertility treatments. They offer rabbinical supervision of fertility treatments in many Israeli hospitals.