Richard V. Grazi and Joel B. Wolowelsky
Le'ela, number 41, March 1996

There are three partners in the creation of a child, says the Talmud: the mother, father, and the Holy One, blessed be He. Until now, God's involvement has been for the most part subtle and supportive. Today, with the new-found involvement of fertility experts in the creation of some children, many couples look for more direct religious guidance as they set off on non-chartered courses, and this often brings them to their rabbi with a request for guidance. The rabbi, in turn, is put in a situation of tracing a course he himself has not yet traveled. Reproductive technology is moving at such a fast pace that "general practitioners" --be they gynecologists, rashei yeshiva, or congregational rabbis-- have difficulty keeping up with the literature, let alone forming judgments about it.

Compounding the problem is the general discomfort religious authorities feel in addressing the issue. Doctors always "play God" to some extent, but it is the Torah that permits them to preserve and maintain health: "'And he shall certainly heal' --from here we learn that the Torah has given permission to heal." However, creating life is qualitatively different from preserving life, and it demands a humility that many religious authorities have found lacking in the medical community. Some poskim see doctors as cavalierly harvesting eggs, manipulating genes, creating a host of involved "parents" --gestational, genetic, surrogate-- all to satisfy the needs of an "unfulfilled" childless couple. This often seems to bespeak an arrogance that it is man and not God who is the ultimate creator.

There is some truth to this, but it is terribly exaggerated. To cite a relevant anecdote, some time ago an important beit din in New York took up the question of allowing a multi-fetal pregnancy reduction. The dayanim were skeptical that the previous year a woman carrying twins who wanted them reduced to a singleton for reasons of convenience could not find a doctor in the tri-state area who would do the reduction. It seemed absurd in this age of abortion-on-demand to hear that this woman could not find someone willing to abort one of her fetuses. But specialists in this field generally have a great reverence for life. Rabbis would have a greater appreciation for this --and doctors would have a greater appreciation for rabbis-- if there were more continuous interchange between them.

In any event, a posek must deal not only with theory but with individual couples who have their own specific personal and psychological needs. And, as Rav Aharon Lichtenstein has noted,

A sensitive posek recognizes both the gravity of the personal circumstances and the seriousness of the halakhic factors.... He might stretch the halakhic limits of leniency where serious domestic tragedy looms, or hold firm to the strict interpretation of the law when, as he reads the situation, the pressure for leniency stems from frivolous attitudes and reflects a debased moral compass.

It is therefore not surprising that, on an individual level, poskim often have been forthcoming with leniencies that appear to be at odds with public condemnations issued by senior halakhic authorities. Indeed, it is not surprising that many of these lenient decisions are made in consultation with these very same authorities. This is not the least bit hypocritical. On a public level, halakhists have an obligation to resist the tide of moral permissiveness that informs too much of the drive to obtain fertility at any cost. But on a private level, it is the individual situation that must be addressed, not the global issues.

These lenient decisions are often circulated to only a small group of scholars lest they be exploited by those whose "pressure for leniency stems from frivolous attitudes [reflecting] a debased moral compass." This means that the rabbinic counsellor who relies only on the relatively few public statements available will have a myopic view of the halakhic options open to him when he meets with an infertile couple. Being aware of the true full range of halakhic options available --including the serious reasons calling for stringencies in some cases-- is the first duty of the rabbinic counsellor.

Just as the rabbi must understand the halakhic intricacies involved, he must also be aware of the underlying family dynamics at play. Indeed, the most important initial advice that the rabbi might offer is that there is rarely a fertility problem that needs immediate medical attention.

There is tremendous pressure in the religious community to have children as quickly as possible. Barring any known medical conditions, it would be inappropriate to seek professional advice until the couple has been having regular sexual activity for, say, twelve months. (If the wife is of advanced age, a six-month period would be more appropriate.) The tension associated with the medical evaluation of infertility can create its own psychological problems, and the simple reassurance that time is on their side can itself help the situation. Tsniut considerations generally discourage a frank exchange of the couple's intimate lives. But such a discussion is in order here --and not simply to dispel a naive assumption that the Shulhan Arukh's admonition that a Torah scholar have relations with his wife only on Friday nights need not necessarily be taken at face value. The quantity and frequency of sexual activity are an important considerations in all infertility counselling. Indeed, some couples may be looking for a medical solution for a problem that should be solved with a therapist.

Even when the proper approach might well be to refer the couple to a competent doctor or therapist, the initial encounter with a religious authority figure may well influence any possible future counselling and therefore demands a thoughtful, responsible reaction. Religious counsellors and professional therapists have very different, yet legitimate, agendas in their respective discussions with childless couples. The latter's job is to help the couple come to terms with their situation and explore the family-dynamic consequences of the various options open to them, including remaining childless or adopting. Religious counsellors, on the other hand, have an obligation to help the individuals grow in their religious convictions and observances. These objectives are certainly not inherently contradictory, but they should be understood and sorted out. Of course, any therapist to whom the couple is referred should have a thorough understanding (if not commitment to) the halakhic values that guide the couple's lives.

A rabbi has a duty to advise the couple spiritually, and the advice to engage in teshuva, tefila, maasim tovim, and the like, despite their "non-scientific" character, are all appropriate and important components of infertility therapy. But halakha also requires concomitant medical treatment when it is appropriate, and the couple should leave the rabbi's study with an understanding of how and when they should be seeking medical treatment.

In making a suggestion to seek medical treatment, the rabbi should be careful to point out that a halakhically committed couple should raise with the doctor a number of changes in the standard medical protocol. (This is discussed in detail in Be Fruitful and Multiply.) The first is the medical work-up of the husband. Normally, the first course of action would be to check the quality and quantity of the husband's sperm. This involves a relatively inexpensive and non-invasive test but it usually involves masturbation, coitus interruptus, or other techniques which raise the problem of hashkhatat zera. It therefore should be put off until the wife has been thoroughly examined and there is some medical indication that the infertility might be due to a problem with the husband's sperm.

The second problem is that of nidda. The doctor should have a working knowledge of hilkhot nidda, how it impacts on the couple's sex life and how various treatments influence the nidda status of the wife. Some standard fertility treatments can invoke nidda status, frustrating all attempts to achieve pregnancy. It is unfair to place on the couple the burden of educating the doctor on this issue, and the rabbi, as part of his general pastoral duties, should have a professional relationship with doctors treating his congregants. (This too is discussed in detail in Be Fruitful and Multiply.)

Often the issue of artificial insemination is raised. There is much halakhic leniency in allowing artificial insemination with the husband's sperm. But there is an accompanying fear --driven by sensational though rare media stories-- that doctors are so intent on demonstrating professional success that they will substitute or add foreign potent sperm to the insemination. Most doctors will take umbrage at such a suggestion because the vast majority of professionals are ethical people who are well aware that such deception violates the professional standards of medicine (not to mention the malpractice liability to which it would expose them). Nonetheless, assurances should be made and a review of the technical procedures conducted. (At Maimonides Medical Center, the Division of Reproductive Endocrinology has a mashgiah available to assure patients that no substitution of semen is possible.)

Much more complicated is the issue of donor semen, and this because it involves not only halakhic issues, but core issues of personal identity. Couples sometimes naively think that this is a better option than adoption because at least one of the parents (the mother) is the genetic parent. But, at the least, this carries with it the possibility of jealousy when tensions that arise in any household emerge. This explains why even those halakhists who are willing to see the procedure as technically allowable are most reluctant to recommend it. While one end of the halakhic spectrum sees donor insemination as adultery pure and simple, the extent to which the lenient position is accepted is not adequately reflected in the written literature. Anyone who has had a close dialogue with halakhists and rashei yeshiva who deal with the problem knows that on a private level many poskim are willing to entertain this possibility when it can be seen as a therapy for a distraught couple. But it certainly should not be considered without a thorough thrashing-out of the personal issues involved.

Another important issue is confidentiality. With adoption, at least some members of the surrounding community are aware of the circumstances. However, there is a real possibility of keeping donor sperm a secret, provided the couple have not shared this information with anyone at the time of conception. (Indeed, many doctors advise their patients, "Tell no one!") There are many issues to consider here, as with adoption, and they should be worked out thoroughly with a fully-trained therapist before proceeding. We shall not outline that discussion here, but note briefly three additional important issues that are relevant to Jewish couples and should be raised at the outset. (We assume that sperm from a gentile was used. There is a host of additional problems that arise if sperm from a Jewish donor is used.)

The first is that of halitsa. If a man dies childless, his surviving brother must release the widow through a halitsa ceremony before she can remarry. The husband is in actually childless, and his widow would have to reveal the facts to her surviving brother-in-law should she wish to remarry.

The second is that of priestly status. A son would be unrelated to the husband and would not inherit his status as a kohen or levi. (There is an opinion that in such cases the child inherits the status of its maternal grandfather.) This would make it almost impossible to keep the facts a secret as they would become known through the regular process of aliyot.

The third is that of inheritance. The child cannot legally inherit from the deceased husband because there is no familial bond between them. This can be addressed easily by preparing a halakhic will.

More complicated is the matter of donor ova. Here the major consideration is not so much the halakhic prohibitions involved--the charge of adultery is not really heard-- but the halakhic consequence. There is widespread agreement that the gestational mother is the halakhic mother, but if the donor is Jewish some would consider both the gestational and genetic mothers as the halakhic mother. If the donor is not Jewish, there is a question of the religious identification of the child. Some would hold that the child is Jewish, others that it is a non-Jew who needs conversion (and who would then be halakhically unrelated to any of its parents), and a third opinion that it requires some form of conversion but remains related to its genetic father and gestational mother. It is too early for a consensus to have developed around one of these opinions.

The other side of this coin is the issue of surrogacy, where the wife is fertile but cannot carry the child. In Israel, the rabbinate seems ready to give its unenthusiastic consent to a secular law that would allow surrogacy if the surrogate is Jewish and single, and is officially recognized as the child's mother. The couple would then legally adopt the child. This whole issue has not been thoroughly explored in the halakhic literature.

Sometimes rabbis advise their colleagues to simply refer such cases to one or two "gedolim." One must be careful, however, about the possibility of these decisions being based on the information provided by the posek's assistant rather than the doctor directly. In such cases, when all is said and done, the decision is actually being made by the assistant who, by virtue of the way he collects and presents the information, frames the conclusion. A true halakhic decision requires a personal consultation with the doctor concerning the patient's specific medical condition. It is simply too much for a handful of people to handle.

Similarly, a posek's deferral to his own medical consultants is problematic. For example, a posek might be convinced that with proper care a multi-fetal pregnancy of some specific size could be carried to term and, indeed, the medical expert he consults might concur. But every individual patient is unique, and to decide such an issue requires thoroughly evaluating the medical profile of the individual patient. Just as the doctor may not "play God", the posek may not "play doctor". If the posek relies on his own consultant's medical judgment, then, once again, in the end it is the consultant and not the posek who is rendering the halakhic decision. The couple, thinking they are getting a halakhic judgment, is actually getting a medical referral.

It is indeed frightening to consider that many of the halakhic problems that an infertile couple must face have not yet been thoroughly resolved. As we noted at the outset, the technology is moving so fast that there will probably be a permanent time lag leaving all rabbinic counsellors ill at ease in advising couples who may well consider themselves in a desperate situation. But the internal and external pressures to have a child are so overwhelming that it will probably not do to simply advise the couple to remain childless or adopt.

Travelling this road towards pregnancy demands courage and humility on everyone's part. But travel it we must. And it certainly requires tefilat haderekh.

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