Assisted reproduction in Jewish law.

• Author: Sinclair, Daniel B.

1. ARTIFICIAL INSEMINATION USING THE HUSBAND'S SPERM ("AIH"): JEWISH AND CATHOLIC POSITIONS

   This Section is devoted to a survey of Jewish law, or halakhah, in relation to AIH, and a comparative discussion of Jewish and Catholic approaches to reproductive technology in general. AIH accounts for a small proportion of artificial insemination cases, and is recommended in situations where the husband suffers from anatomical defects of his sexual organ or from severe psychological impotence. It is also used, although rarely, where the husband has a low sperm count. Occasionally, AIH may be recommended if the husband is scheduled to undergo medical treatment that will render him infertile or is likely do so.

   AIH is permitted by a majority of halakhists. (1) The minority opposition argues that AIH breaches the halakhic prohibition on seed destruction. (2) According to the minority view, any sexual act in which the husband does not ejaculate directly into his wife's reproductive tract is considered seed destruction, and must be avoided. (3) In accordance with this definition, the collection of semen for the purpose of artificial insemination runs afoul of the prohibition on seed destruction. Another argument used by these authorities against AIH is the concern that the husband's sperm might be replaced, either inadvertently or by design, with that of a stranger, with the result that the legal status of the child will be seriously compromised. (4) It is important to emphasize that there is no specific mention amongst the prohibitionists of any opposition to AIH on the grounds that it offends against the natural order of things.

   Those who permit AIH do not find it difficult to overcome these objections. Regarding the prohibition of seed destruction, the permissive scholars maintain that if the goal of the procedure is to bring a child into the world, it is halakhically irrelevant that in the course of achieving that goal there is a break between the ejaculation of the semen and its entry into the female reproductive organ. Indeed, some semen always goes to waste, even in the course of "natural" sexual relations. Regarding the concern of sperm replacement, it is well established, on the basis of general halakhic principles, that the mere fear of such a scenario is not sufficient to prohibit an otherwise halakhically permitted procedure, especially when the object of the procedure is as worthy as the establishment of a family. (5) In any case, it is possible to take measures to ensure that mix-ups are minimized. To this end, there are now trained supervisors available in a number of clinics used by observant Jews, who have the responsibility of ensuring that no foreign semen enters the procedure from the point of collection until insemination. (6)

   On the assumption that AIH is permitted, especially in relation to a couple for whom it is the only method for having children, the most halakhically acceptable method for collecting the semen would need to be worked out in consultation with a halakhic authority. (7) Halakhic consultation would also be required when there is a possibility that in order to achieve conception, the insemination must take place during the wife's menstrual period, during which intercourse between her and her husband would be forbidden under Jewish law. (8)

   A question that arises in relation to AIH is whether it constitutes fulfillment of the biblical commandment to "be fruitful and multiply." (9) Some authorities maintain that because sexual intercourse is a vital ingredient in the performance of this commandment (mitzvah), having a child through AIH does not constitute fulfillment of the obligation. (10) The competing view is that the essence of the obligation lies in the production of live progeny, and the process is irrelevant. According to this view, the biblical commandment to procreate is, indeed, fulfilled by a husband who inseminates his wife in an artificial manner. (11) A compromise position adopted by R. Shlomo Zalman Auerbach suggests that although AIH does not constitute performance of the full-blown biblical commandment to be fruitful and multiply, it does qualify for the fulfillment of the rabbinic obligations to populate the earth and not to leave it desolate. (12) By downgrading the commandment to the rabbinic level, R. Auerbach ensures that AIH is still endowed with religious significance, even though it is not invested with the full normative force of a biblical precept.

   Thus, according to the majority of halakhists, not only is AIH permitted, but also it constitutes the fulfillment of a mitzvah. Undoubtedly, this permissive approach also reflects the social consequences of infertility in observant circles. In these circles, children are an extremely important focus of religious, and hence, social practice. Sensitivity to the social, as well as the halakhic pressures on observant Jewish married couples to have children, undoubtedly contributes to the trend amongst halakhic authorities to find ways of resolving fertility problems. (13)

   It is significant that the prohibitionist authorities do not raise any fundamental ideological objection to the use of assisted reproduction on the grounds that it is not a natural process. Their objections are based upon specific legal prohibitions and upon reservations regarding the fulfillment of the positive commandment to reproduce. It would, therefore, appear to be unanimously accepted that there is no fundamental requirement in Jewish law that reproduction take place in a purely natural manner.

   This approach is in marked contrast with that of Catholic Church doctrine, which prohibits any intrusion of technology into human reproduction. As a result, artificial insemination, using either the husband's sperm or donor sperm, and in vitro fertilization, are not options for a Catholic married couple struggling with an infertility problem. According to the Catholic doctrine, as laid down in the 1987 Instruction on Respect for Human Life in its Origins and on the Dignity of Procreation, (Donum Vitae), (14) it is forbidden to separate procreation from marital sex. This provision, often referred to as the "inseparability principle," requires that children must only come into being as a result of marital intercourse, and that any reproductive method that replaces intercourse as the cause of human generation is immoral. (15) The inseparability principle is based upon the idea that children born in any context other than that of marital love will be adversely affected in terms of their own capacities to love and be loved. Additionally, there is the fear that artificial reproductive techniques may be easily abused. (16) Thus, the Catholic approach is a naturalist one; Donum Vitae gives strong expression to this idea, and the dominant Catholic view is that artificial insemination by the husband is forbidden.

   Mention should be made of a minority Catholic view that regards the total ban on assisted conception in Donum Vitae as being too strong an application of the inseparability principle. According to this view, where a married couple is desperate to have their own child and looks to assisted reproduction as the means for achieving this end, the act of reproduction becomes imbued with the same ingredient of marital love as that which suffuses the act of marital intercourse, and AIH should, therefore, be permitted. (17) Regarding the fear of abuse, the argument offered by the liberal Catholic minority is that this fear may be met by a combination of religious sanctions and practical precautionary measures. It should not, in and of itself, provide the basis for a universal ban on artificial reproduction in all circumstances. (18)

   It is noteworthy that Islamic law in this area resembles Jewish law, in that it too has no principled opposition to the use of artificial reproductive techniques in overcoming a fertility problem within a marriage. AIH is, therefore, permitted under Islamic law. (19)

   The case against naturalism in the halakhah should not be made too strongly. Indeed, it may be argued that the naturalist approach manifests itself in the view that while AIH is not halakhically prohibited, it is not on par with the natural method with respect to qualifying as a means of fulfilling the mitzvah of procreation on a biblical level. This downgrading of the religious validity of AIH may very well serve as evidence of a weak form of naturalism in this area of Jewish law. The term "weak naturalism" indicates that although the halakhah does not designate naturalism in this area as a legal value, there are features of the halakhic doctrine that are compatible with the naturalist approach.

   R. Immanuel Jakobovits expresses a strong naturalist position with regard to artificial reproductive technology in relation to artificial insemination using donor sperm ("AID"). As described infra, both the legal and moral ramifications of AID are far more serious than those of AIH. As a result, legal permission, when given, is often qualified by reservations of a moral nature, including concern for the preservation of the family unit. Nevertheless, for the purposes of R. Jakobovits's naturalist argument, the fact that it is made in the context of AID is not critical, since its force is equally applicable to AIH. R. Jacobovits notes that although there is nothing intrinsically illegal about AID, it is, nevertheless, opposed by the majority of halakhic authorities on moral grounds.

   According to R. Jakobovits, this moral opposition may be explained by the fact that the use of artificial reproductive techniques turns childbearing into a "mechanical" act, bereft of "those mystical and intimately human qualities that make man a partner with God in the creative propagation of the race." (20) The reference to the "mechanical" nature of AID is highly reminiscent of the naturalist theory underlying the inseparability doctrine of the Catholic Church. In using these terms to...