Of course, this raises new ethical considerations only if one sees a moral distinction between discarding an untransplanted embryo and aborting a fetus in the womb. Such a differentiation is rejected, for example, by the Roman Catholic Church, which extends full human status to the fetus from the moment of fertilization.

But, as we have reported in Le'ela, contemporary Jewish law and ethics maintain that not only do untransplanted embryos have no standing and may be discarded, but multi-fetal pregnancy reduction is also an ethically acceptable procedure. It would seem, therefore, that if IVF is used in order to overcome existing problems of infertility and if, in any event, only some of the fertilized eggs will be transplanted, then selecting one of a desired sex would be allowed. Yet, one must keep in mind that those rabbinic authorities who allow IVF do so to overcome existing problems of infertility, as procreation is a religious obligation. It is not at all clear that IVF would be permitted for the sole purpose of sex selection, absent any existing difficulty in conceiving.

Similarly, screening untransplanted embryos for genetic defects would apparently be permitted if IVF were done to deal with an infertility problem. However, permitting IVF solely for the purpose of genetic screening rather than overcoming a fertility problem does not necessarily follow.

This line of reasoning, however, is not without challenge. Intracervical inseminations using husband's sperm are performed only on rare occasions, as when anatomical factors (such as hypospadias) or psychological difficulties prevent proper coitus. In the majority of instances, AIH is used to overcome either a low sperm count (oligospermia) or cervical factor infertility. For these cases, intra-uterine insemination (IUI) must be performed. This procedure maximizes the number of sperm reaching the upper reproductive tract and therefore enhances the chances of conception.

However, IUI requires sperm washing, a procedure in which spermatozoa are separated from the seminal fluid, which is then discarded. (The latter component of the ejaculate cannot be injected into the intrauterine environment as it induces severe uterine cramping.) As a routine, non-motile spermatozoa are also separated out and IUI is performed only with the motile fractions. This is done in order to mimic the physiological situation, in which non-motile sperm are filtered out by the cervix and only motile sperm can access the uterine cavity. Sperm washing can be done using a "swim-up" or percoll gradient, but in either case some motile sperm are inevitably discarded with the non-motile ones.

The situation is further complicated for IVF. In order to minimize the possibility of polyspermatic fertilization, only some 50,000 sperm can be introduced into each dish containing an egg to be fertilized. Even in very successful egg retrievals, where tens of oocytes are recovered, only approximately one million sperm would be used in the insemination process. As the normal ejaculate contains at least 25 million motile sperm, IVF inherently involves the discarding of normal sperm.

Rabbi Bleich's position seems to imply that if destroying part of the sperm were in and of itself sufficient reason to render a procedure halakhicly prohibited, all IUI (and hence most AIH) procedures as well as all in vitro fertilizations would be unacceptable from the perspective of Jewish law and ethics. Yet current procedures continue to be approved by many rabbinic decisors in many different cases. (Indeed, testing sperm for fertility is generally allowed under specific circumstances, even though all of the semen is eventually discarded.) It is also not clear, if these standard procedures are permitted, why a gradient which further separates male and female sperm would be prohibited in preparation for IUI, as typically each fraction contains a sufficient number of sperm to effect fertilization in vivo. With regard to IVF, this further separation has no effect on the actual number of sperm introduced into the petri dish at the time of fertilization. Further, if those eggs fertilized in vitro which will not be transplanted may be discarded, it is not clear why sperm in excess of that required to fertilize the eggs in vitro cannot also be discarded. It would seem, then, that there might be room to question Rabbi Bleich's specific reason for rejecting this form of sex selection.

A similar position is maintained by Rabbi Yitzhak Zilberstein, who regularly contributes responsa to the Israeli Medical-Halakhah Group. He notes that some halakhic authorities categorically forbid any form of IVF and that there have been halakhic questions raised regarding the genealogical status of the child, even if the husband is the donor. IVF is certainly an intrusion into the natural relationship between husband and wife, which Judaism considers to be imbued with holiness. "[Normally] God joins with a man and his wife [in creating a child]," he writes, "but here it is the doctor's hand [instead]." Given all this, he says, it is absurd to consider putting aside the general halakhic insistence on privacy in marital relations to allow one to bring into the world an infant which, according to some halakhic authorities, has doubtful halakhic status as the father's legal child, doubtful status as the legal heir, and whose only certain status is that of a male or female baby.

Halakhah considers natural marital procedures to be morally normative; but it does not regard them to be morally absolute. Thus, abandoning the normative approach to procreation must be weighed against other moral imperatives. Accordingly, the religious obligation to procreate can sometimes outweigh the imperative to maintain natural procedures and AIH or IVF might be allowed to overcome a fertility problem. Of course, in halakhic Judaism, this judgment is relegated to the rabbinic authorities rather than the couple's conscience, and every case must be judged on an individual basis by a competent rav.

But despite the willingness of halakhic authorities to allow artificial reproductive techniques to overcome an infertility problem, Rabbis Shafran and Zilberstein regard the rabbinic judgment to be that securing a baby of a desired sex is simply too frivolous a halakhic concern no matter how pressing it might be for the specific couple to overcome the other moral objections. (But this would not rule out the possibility of allowing it in a specific individual case where there were pressing unique circumstances.) Presumably, this would extend to preimplantation screening for other genetically controlled physical attributes, such as the color of the infant's eyes.

This permissive attitude towards screening and, implicitly, the discarding of the affected untransplanted embryos certainly rests to a great extent on the lack of standing the pre-embryo has in Halakhah. However, it is the psychological state of the parents which is invoked rather than any negative quality of life that the child might suffer. This is a general policy of Halakhah, which in individual circumstances (such as, for example, in the case of a fetus diagnosed by amniocentesis as having Downs Syndrome or Taye-Sacks) might base permission to abort based on the psychological state of the parents.

In the case of genetic screening, Rabbi Zilberstein holds that the objections to IVF give way in the face of more pressing considerations. The artificial reproductive techniques are viewed, in a sense, as a therapeutic procedure for the parents. This in and of itself does not allow for the indiscriminate relaxation of all associated halakhic prohibitions. Balancing the halakhic counterclaims in such circumstances is the duty of the rabbinic decisor addressing a particular individual case. As Rabbi Aharon Lichtenstein notes:

A sensitive posek [halakhic decisor] 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 would not be unreasonable to suggest that in an individual case where selecting the sex of the fetus was a serious and not frivolous consideration, halakhists might consider an individual dispensation from rulings prohibiting sex selection through IVF or other techniques. Rabbi Shelomo Zalman Auerbach is quoted as allowing artificial insemination after separation of the X- and Y-bearing sperm in a case where sex selection is attempted to avoid a child sticken with hemophelia, a sex-linked genetic disease. (He would not allow the procedure simply to assure a child of a specific sex, as this is not motivated by a desire to fulfill the mitzva of procreation.)

Rabbi Shafran concedes that UL brings us close to the issue of abortion within the first forty days of conception. While halakhists take the most liberal position on abortion during this period, there is no blanket approval for such abortions. Nevertheless, he feels that the procedure should be allowed because (1) there is a serious, significant, and legitimate need; (2) the lavage takes place before the embryo has implanted; (3) if the embryo is returned for implantation, no abortion will have occurred; (4) if the embryo has a serious genetic defect, it might not be viable and therefore need not be returned.

Indeed, Rabbi Shafran feels that any reservations about the procedure fall in the face of the halakhic obligation to minimize as much as possible any interference with normal marital relations. "There is justification to examine an individual case [to allow IVF screening] only if a uterine lavage cannot be used and we are dealing with a serious fear of a genetic defect," he concludes. However, he indicated that if current medical practice demonstrated that IVF were indeed safer for the mother and potential fetus, he would reconsider his position. Rabbi Zilberstein considers UL to be abortion and insists that IVF is the only acceptable procedure in those cases where pre-implantation screening is permitted.

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