Richard V. Grazi and Joel B. Wolowelsky
Le'ela, number 35, April 1993

There are many medical situations which call for administering drugs that will cause a woman to superovulate (release a large number of eggs during her monthly cycle), and this superovulation often brings with it associated moral dilemmas. Sometimes, a woman will not release the eggs in her ovaries, and the drugs designed to unbind the eggs causes an excess number to be released. Sometimes, when fertilization cannot be achieved naturally, a large number of eggs are deliberately released in order to provide greater probability of success for in virto fetilization (in which a woman's eggs are fertilized with her husband's sperm in a petri dish and then transplanted into the woman's womb, where gestation procedes normally) or GIFT (gamete intrafallopian transfer, in which the eggs and sperm are introduced artificially into the woman's fallopian tubes, where conception takes place and the pregancy continues naturally). Suddenly, we may be faced with the problem of either what to do with a set of fertilized eggs outside of the body or how to treat a woman who is carrying eight or nine fetuses.

A multi-fetal pregnancy creates a physical danger to both the mother and future children. The larger the number of embyos, the greater the likelihood that the pregnancy will terminate prematurely, leaving the babies in danger of physical and mental damage. If some of the embryos are killed it is a harsh word but better used to understand the magnitude of the ethical problem the survivors stands a better chance of surviving healthy and whole. If fertilization occurs in vitro, sucessful implantation often requires fertilizing many embryos, implanting a number of the healthy ones (not all will implant), and facing the problem of what to do with the "excess" others.

Current medical practice is to effect a multi-fetal pregancy reduction (MPR). In this procedure (originally called selective abortion or selective termination), a needle is inserted into the mother's womb early in the pregnancy and, guided by ultra-sound, some of the fetuses are killed. It is impossible to "select" the most viable or healthy of the embryos at this early stage of the pregnancy, and the selection is indeed a matter of chance.

The Roman Catholic position on this is clear, straightforward and uncompromising. There is "no moral distinction is considered between zygotes, pre-embryos, embryos or fetuses." Reducing the number of fetuses is abortion and murder; destroying the untransplanted embryos is likewise condemned. This is far from the Torah position.

Abortion on demand is repulsive to the ethics of the Halakhah; however, within Jewish law, there are many situations in which a pregnancy may be terminated. If the mother's life is in danger, each fetus is a rodef, an aggressor who may (or must) be killed to save the individual in danger. But if the danger is to the various fetuses and not to the mother, each fetus is an aggressor and victim with equal status; it therefore might not be permissible to put aside one soul for the sake of another.

The question of MPr was recently taken up by Rabbi Yitzhak Zilberstein in a responsum to the Israeli Medical-Halakhah Group. Searching for a legal analogy for this situation, Rabbi Zilberstein focuses on the case of a group of people who are in mortal danger and who can be saved by sacrificing one innocent member of the company. He notes that most halakhic authorities agree that in such cases all must allow themselves to die rather than themselves give up an innocent person. Yet, he finds a number of authorities who limit these rulings to cases where in theory the innocent person who would be sacrificed might have been able to escape. If, however, it is absolutely certain that all would be lost unless one is forfeit, these authorities would allow some innocent people to be selected by lottery and sacrificed to save the others.

These conclusions apply to cases concerning full humans who have standing as viable persons. However, Rabbi Zilberstein continues, our case concerns fetuses, all of which are already condemned to death. MPr should therefore be allowed, he rules, noting that this might then be a case of "fetal life-saving" rather than "fetal reduction." Rabbi Shlomo Zalman Auerbach, one of the leading contemporary rabbinic authorities in Jerusalem, is quoted elsewhere as also tending to allow the procedure in order to save the remaining fetuses.

Rabbi Zilberstein's decision seems to assume that none of the fetuses will survive the multiple pregnancy without MPr. This suggests that if the medical indication is that they would survive, albeit with serious physical and/or mental deficiencies, MPr might be ethically prohibited. Yet Rabbi Haim David Halevi, Chief Rabbi of Tel Aviv, also allows the procedure without presuming that all were otherwise doomed to death. He notes that there is no unanimity of opinion among halakhic authorities concerning every abortion, with some taking a most restrictive position and others allowing abortion of Tay-Sachs fetuses in even the third trimester. As the vast majority hold that the abortion of nonviable fetuses is not at all homicide, he feels that because the fetuses will most probably be born prematurely and with serious physical and/or mental disabilities without the reduction, a lenient position should be maintained. He therefore allows reducing the pregnancy to the extent necessary to insure that the remaining fetuses will be born healthy and whole. Rabbi Mordecai Eliyahu, Chief Rabbi of Israel, also allows the procedure, adding that the reduction could be done at any stage of the pregnancy, although it is better to do it as early as possible, preferably within the first forty days, the period for which halakhists take the most liberal position on abortion.

Rabbis Zilberstein, Halevi and Eliyahu all maintain that the number of fetuses to be destroyed is a medical question and should be decided by the doctors involved, who must determine the minimum number which need to be killed to ensure a good prognosis for the mother and remaining fetuses. (Rabbis Auerbach is not quoted on the issue.) This puts an ethical burden on the medical professional to be completely current on the statistical and medical studies associated with multifetal pregnancy outcome and MPr, so that the absolute minimal number of fetuses to be killed can be reasonably determined. No halakhic authority suggests allowing MPr for convenience or choice, such as reducing twins to singletons.

Non-transplanted embryos fertilized artificially in vitro have no standing as fetuses in Jewish law. Rabbi Halevi rules that "all eggs fertilized in vitro have no standing as embryos ... and one may discard them if they were not chosen for implanting, as the law of abortion applies only to [procedures in] the womb.... But in vitro, as was said, there is no prohibition at all."

A similar ruling is offered by Rabbi Eliyahu, who writes that "all fertilized eggs which are destined to be implanted in the mother's womb should not be destroyed, as a live fetus will yet develop from them. But those eggs which have not been chosen for implantation may be discarded." (Current medical practice is to freeze the excess embryos for future use, in case those implanted do not survive or another child is desired years later. Disposal of these embryos is a matter of current secular legal debate.)

Neither authority offers any detailed analysis of his legal ruling, apparently considering the position to be obvious and non-controversial from the perspective of Jewish law and ethics. Elsewhere, Rabbi J. David Bleich offers the following relevant observation. Jewish law, he argues, concerns iteself only with phenomena which can be seen. "An organism that can be seen only by means of a magnifying glass or under a microscope is an organism of which Jewish law takes no notice.... [Hence,] during the very early stages of development, when the organism is still sub-visual, the law takes no cognizancce of its existence. If so, it may well be argued that there is no prohibition associated with the destruction."

It is not unreasonable to assume that to some extent these rulings are also based on the Talmudic statement that an embryo is "mere water" within the first forty days of conception and that it is not viable in vitro. If the embryo could be maintained artificially outside of the womb until much later stages of gestation, it is not clear if these rulings would apply.

These rulings have interesting implications for a number of other issues. Rabbi Bleich has noted that the tissue of a spontaneously aborted fetus may be used for research purposes if there is a reasonable basis for assuming that practical medical benefits will ensue within a reasonable time period (the specific details of which require individual analysis). One might well argue that untransplanted embryos, which never had viable status, might be used for the purposes of research before they are discarded. (One must keep in mind, though, that those rabbinic authorities who allow IVF do not consider the procurement of the sperm to be a "wasting of seed" because the procedure is used to overcome existing problems of infertility. It is not at all clear that rabbinic approval would be forthcoming for IVF solely for the purpose of research. Nevertheless, Rabbi Bleich continues, "Jewish law does not posit ... an exclusionary rule that would, post factum, preclude the use of illicitly obtained tissue for an otherwise sanctioned purpose" such as medical research.)

We need not fear new ethical problems presented by the new reproductive technologies. Setting out to assist God in the creation of new humans puts us on a path fraught with moral difficulties. However, the Halakaha provides us with an ethical compass so that we can navigate our expedition with confidence that we are indeed imitating our Maker and assisting Him in tikkun olam.

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