Richard V. Grazi, MD, Joel B. Wolowelsky, PhD
Richard V. Grazi, MD, Division of Reproductive Endocrinology, Maimonides Medical Center, Brooklyn, New York 11219
Joel B. Wolowelsky, Department of Jewish Philosophy, Yeshivah of Flatbush Brooklyn, New York 11230
American Journal of Obstetrics and Gynocology 65:5 (Novemner 1991)

Condensation
Jewish law and ethics regarding multifetal pregnancy reduction and disposal of untransplanted embryos are presented and contrasted with those of other religious and secular institutions.

Abstract
Recent responsa (rabbinical rulings) on multifetal pregnancy reduction (MPR) and disposal of untransplanted embryos indicate that the position of contemporary Jewish law and ethics on these specific issues differs strongly from the instruction of the Roman Catholic Church and is closer to the view adopted by the Ethics Committee of the American Fertility Society.

Key Words: Multifetal pregnancy reduction, embryos, ethics

Introduction
In 1988, the Ethics Committee of the American Fertility Society published its reaction to the Roman Catholic Instruction which condemned, inter alia, both the destruction of fertilized eggs from the moment the zygote has formed and the reduction of multifetal pregnancies.1,2 (The Ethics Committee published a more comprehensive statement in 1990.3) We present here a report on a number of recent responsa (rabbinical rulings) on these two issues which have initiated the discussion for contemporary Jewish scholars addressing the matter.

The Jewish "magisterium" consists of the Bible, the Mishna and Talmud, and universally accepted codifications such as Maimonides' Mishneh Torah or the later Shulhan Arukh. These are the sources for the investigation of the traditional Jewish position on any ethical or legal issue. Rulings on contemporary issues cannot be promulgated by any central authority, there being no formal hierarchal structure to the various contemporary rabbinic authorities and courts.

Positions on contemporary issues are developed by circulation of responsa to questions posed to various rabbinic authorities. Collegial review and community acceptance eventually allow for specific opinions to emerge as dominant. (Yet, even when one view surfaces as authoritative, individual rabbis or layman will often defer to their local authority whose position is considered decisive.) Not all authorities of Halakhah (traditional Jewish law) allow in vitro fertilization (IVF), even if the husband is the donor.4-6 The responsa quoted here assume the questioner has accepted the lenient opinions permitting IVF.

Status of the embryo
One need not look past the famous Mishna allowing for abortion of a fetus to realize that traditional Jewish ethics and law differentiates between an unborn fetus and a born human. The Mishna rules that
"[if] a woman is in hard labor, they chop up the child in her womb and they remove it limb by limb, because her life takes precedence over its life. [If] its greater part had gone forth, they do not touch it, for they do not set aside one life on account of another life."7
Maimonides codifies this as law, declaring the fetus in such a case to be a rodef, an aggressor perusing another to kill him or and who, according to Jewish law, must be killed rather than allowed to accomplish the murder. But if the baby's head has emerged, he continues, it attains human status and may not be touched,
"for one may not put aside one life for the sake of another. This is the way of the world."8
This distinction between an unborn fetus and a born human is rejected by the Roman Catholic Instruction, which reasserts the position that:
"from the time the ovum is fertilized, a new life is begun which is neither that of the father nor of the mother; it is rather the life of a new human being.... Right from fertilization is begun the adventure of a human life...."2
Within Jewish law, there are many situations in which a pregnancy may be terminated, although abortion on demand is repulsive to the ethics of the Halakhah. (J. David Bleich has summarized the extensive halakhic literature on the subject.9) Still, non-transplanted embryos fertilized artificially in vitro have no standing as fetuses in Jewish law. In a recently published responsum, Haim David Halevi, Chief Rabbi of Tel Aviv, 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."10
A similar ruling is offered by Mordechai Eliyahu, Chief Rabbi of Israel, 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."11
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. Indeed, as Bleich has pointed out in his recent summary of halakhic attitudes towards fetal research, even an aborted fetus in the early stages of gestation does not require burial.12

It is not unreasonable to assume that to some extent these rulings are 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.13 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.

Related Ethical Issues
These rulings have interesting implications for a number of other issues. 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).12 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. Likewise, it is not certain that properly obtained semen may be used to fertilize more eggs than would be necessary to assure a sufficient number of embryos for transplantation in order to obtain "excess" untransplanted embryos which would be used for research purposes. Nevertheless,

"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.12

We may also surmise that the embryos may be examined for the purpose of sex selection. The technology to do this is already available.14 The primary halakhic concern is not with regard to the decision to engage in sex preselection but with the method to be employed in effecting sex determination.15 Aborting a fetus that is not of the desired sex, for example, is unequivocally prohibited. But if IVF is used in order to overcome existing problems of infertility and only some of the embryos will be transplanted, it would seem that selecting an embryo of the desired sex would be allowed.

Similarly, screening embryos for genetic defects would be permitted. However, permitting IVF solely for the purpose of genetic screening rather than for overcoming a fertility problem awaits a further, more complete analysis.

Multifetal Pregnancy Reduction (MPR)
The issue of fetal reduction is more problematic. Increased use of ovulatory drugs and related therapies have yielded an increasing number of multifetal pregnancies. As a result of the premature births associated with such pregnancies, these fetuses are in significant jeopardy. Artificial reduction of the number of fetuses has been suggested as a method of reducing this risk. Yet each individual fetus has standing in Jewish law, albeit not as a full person. There being no blanket permission for abortion, a more detailed justification of any ruling allowing MPR is required.

As the Committee on Ethics of the American College of Obstetrics and Gynecology takes note, a distinction may be made between MPR and selective termination of an anomalous fetus.

"[I]nsofar as the intention of selective termination is different from that of other multifetal reductions, its ethical rationale is importantly distinctive. That is, the intention in selective termination is to avoid having a child with a known medical problem, whereas the intention in multifetal reduction is to prevent problems that are secondary to multifetal gestation and premature birth."16
The question of MPR was recently taken up by Yitzhak Zilberstein in a responsum to the Israeli Medical-Halakhah Group.17 If the mother's life is in danger, he writes, each fetus is a rodef and can be killed to save the mother, as noted above. 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.

Searching for a legal analogy for this situation, 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, Zilberstein 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, 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." (As Berkowitz and Lynch have noted, the term chosen to describe a procedure such as this is significant.18) 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.19

Zilberstein's decision seems to assume that without MPR, none of the fetuses will survive the multiple pregnancy. 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 Halevi 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 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 without reduction the fetuses will most probably be born prematurely and with serious physical and/or mental disabilities, 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.10

Eliyahu 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.11 It would therefore be preferable, from this perspective, to use transvaginal sac aspiration rather than intracardiac KCl administration via the transabdominal route, as the former may be done at an earlier stage of pregnancy.20

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. (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.

Comment
Jewish law and ethics disagrees with the Instruction's position that "no moral distinction is considered between zygotes, pre-embryos, embryos or fetuses." It maintains that eggs which have been fertilized in vitro and which have not yet been transplanted have no standing and may be discarded. MPR is a morally acceptable procedure, although care must be taken to kill the minimum number of fetuses that will reasonably assure that the remaining fetuses will be born healthy and whole.

References:

1. Ethics Committee (1986-87) of the American Fertility Society. Ethical considerations of the new reproductive technologies. Fertil Steril 49: [Suppl 1], 1989.
2. Congregation for the doctrine of the Faith. Instruction on respect for human life in its origin and on the dignity of procreation: Replies to certain questions of the day. Reprinted in Crux, March 30, 1987.
3. Ethics Committee of the American Fertility Society. Ethical considerations of the new reproductive technologies. Fertil Steril 53: [Suppl 2], 1990.
4. Avraham AS: Nishmat Avraham: Even Ha-ezer/Hoshen Mishpat, pp 5-16, Jerusalem, 5747 (1987).
5. Rosner F: Artificial insemination in Jewish Law. In Jewish Bioethics, Rosner F and Bleich JD (ed). Sanhedrin Press, New York, 1979.
6. Halperin M: In-vitro fertilization, embryo transfer, and embryo freezing. Jewish Medical Ethics 1:25, 1988.
7. Ohalot 7:6.
8. Maimonides M: Mishneh Torah, Hilkhot Rotsei-ah 1:9. Cf. Karo Y: Shulhan Arukh: Hoshen Mishpat 425:2.
9. Bleich JD: Abortion in halakhic literature. Tradition 10:2, 1968. Reprinted in Bleich JD: Contemporary halakhic problems. New York, 1977.
10. Halevi HD: Responsum to Richard Grazi. 19 Tevet 5749 [December 27, 1988], Assia nos. 47-48 (12:3-4), 1990.
11. Eliyahu M: Responsum to Richard Grazi. 10 Shevat 5749 [January 10, 1989]. Tehumin volume 11, 1991 (in press).
12. Bleich JD: Fetal tissue research: Jewish tradition and public policy. Tradition 24:4, 1989.
13. Babylonian Talmud, Yevamot 69b.
14. Handyside AH, Penketh RJA, Winston RML, Pattinson JK, Delhanty JDA, Tuddenham EGD. Biopsy of human preimplantation embryos and sexing by DNA amplification. Lancet 1:347, 1989.
15. Bleich JD: Judaism and healing: halakhic perspectives. Ktav, New York, 1981.
16. American College of Obstetrics and Gynecology Committee on Ethics. Multifetal pregnancy reduction and selective fetal termination. Opinion number 94, April 1991 (in press).
17. Zilberstein Y: Responsum to question addressed by Pinhas Usher, MD, 1 Av 5746 [August 6, 1986]. Assia nos. 45-46 (12:1-2), 1989.
18. Berkowitz RL, Lynch L: Selective reduction: An unfortunate misnomer. Obstet Gynecol 75:873, 1990.
19. Avraham AS. Nishmat Avraham: Even Ha-ezer/Hoshem Mishpat p. 234, Jerusalem, 5747, (1987).
20. Itskovitz J, Boldes R, Thaler I, Bronstein M, Erlik Y, Brandes JM. Transvaginal ultrasonography-guided aspiration of gestational sacs for selective abortion in multiple pregnancy. Am J Obstet Gynecol 160:215, 1989.

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