Richard V. Grazi and Joel B. Wolowelsky
Le'ela, number 40, September 1995

The New Age of Reproductive Technology came into being some fifteen years ago, when the first "test-tube baby" was born. Since then, in vitro fertilization (IVF) combining egg and sperm in a petri dish and then transplanting the fertilized embryo to the uterus has become more or less commonplace, eliciting at most limited criticism from both secular ethicists and halakhists if the egg and sperm come from a married couple trying to overcome a fertility problem.

More recently, this very same technology has spawned reproductive alternatives that are ethically more complicated. Women with no functioning ovaries who just a short time ago were considered hopelessly sterile and even women who are post-menopausal can now give birth using a "donated" egg, creating a child who has different genetic and gestational mothers. Who is the "real" mother and, more basically, is it ethical to engender such a situation? Indeed, every such technological advancement seems to bring with it new ethical questions that must be sorted out.

One of the latest technological advances brings to the fore the question of fetal ovary transplants. A female fetus in the first trimester of pregnancy already has nearly its full complement of eggs. If an ovary from a fetus aborted at this stage is transplanted into a woman with no ovaries (or whose ovaries are nonfunctional, as in natural menapause), it may continue to develop and mature to the point where ovulation occurs in a natural manner. Without any additional medical intervention, it would accordingly be possible for such a woman to conceive and bear a child whose genetic mother is the aborted fetus from which the ovary was removed.

Popular accounts regarding this new possibility report a heated debate on its ethical permissibility.Opponents of such a procedure which is still in the theoretical stage - argued that this is a case of "reproductive technology gone too far." Even some medical ethicists who would allow fetal tissue to be used for, say, treating Parkinson's Disease, feel that this particular issue is in a different ethical category for several reasons: the eggs contain genetic material that would be passed on to the next generation, the genetic mother of the child had never reached personhood, and the fetus cannot offer informed consent to its own tissue donation.

We can all appreciate the fear of technology gone reckless, of a world in which anything that can be done is done regardless of any ethical constraints. This hesitation is a salutary brake on possible misuse of ever-accelerating scientific discoveries. Yet, while the issue of fetal ovary transplants awaits a thorough ethical analysis in both the halakhic and medical communities, it seems that in this case the new technology does not involve significantly new moral issues. (Of course, standard medical questions such as the safety of the procedure and the possibility of increasing the incidence of damaged fetuses must be investigated as it would be in any new procedure.)

The question of informed consent on the part of the fetus, raised by some ethicists, hardly seems compelling, given that obtaining its consent to be aborted was not deemed necessary. It is rather the consent of our ethical system that is indispensable. The two main relevant issues to be addressed are the use of donor gametes and fetal tissue in general. Psychological issues affecting the child and the parent seem to be no more complex and compelling than in more comon situations of donor gametes.

Some eighty years ago, when Rabbi Binyamin Weiss was asked about an ovary transplant, he replied that, while he found it hard to believe that this was really a medical possibility, he felt it would be halakhically prohibited because it involved sterilization of the donor. Post factum, he concluded, the transplant recipient would be the halakhic mother. Indeed, there seems to be little controversy surrounding the "identity" of an ovary transplanted from a living woman, as the Federation Compendium on Medical Ethics reports:

A transplanted organ is ordinarily deemed to become an integral part of the body of the recipient.... Following an ovarian transplant, the nourishment and maturation of eggs within the ovary depend upon the recipient and not the donor. Therefore, the recipient of an ovarian transplant would be considered the legal mother of any child subsequently born.

The controversy regarding donor gametes (which involves no sterilization of the donor) continues unabated in the halakhic and albeit less so medical communities. Within the current halakhic discussion, the debate on sperm donation has tended to focus on the extent to which the procedure is tainted by the appearance of adultery. There has been little deliberation, if any, on the over-all permissibility of ovum donation. Discussion has centered chiefly on whether it is the genetic or gestational mother who is the halakhic mother. The consensus seems to be heading to the gestational mother, but there are those who would argue for the genetic mother (exclusively or jointly with the gestational mother) or the existence of no halakhic mother at all. As was recently noted, there is a paucity of relevant sources on the subject and it might be necessary to approach the issue from a conceptual rather than textual approach to reach a halakhic conclusion.

Halakha as a legal system has an interest in minimizing ambiguity in matters of personal status. At the very least, the ability of people to marry freely without fear of entering into halakhicly consanguineous relationships depends on establishing the identity of their parents. For that reason, those halakhists who would allow artificial insemination with donor sperm would insist that the donor be a gentile. (A child has no halakhic relationship to its gentile father and therefore has no relationship to any of the latter's other offspring.) In case of a fetal ovarian transplant, the genetic mother is an entity that never achieved personhood that seems to be its incontrovertible halakhic status suggesting there would be more general agreement that the child has no halakhic relationship to its maternal genetic family and that the gestational mother is the only halakhic mother. This would seem to make fetal ovary transplantation preferable to an ovum donation from a living person.

(Parenthetically, we note that this is not the only halakhic paradigm for a child having no halakhic relationship to its genetic parents. Rabbi Shaul Yisraeli recently ruled that a child has no halakhic relationship to its genetic Jewish father if its conception resulted from artificial insemination effected after the father had died. He later extended the ruling to a child that developed from an ovum that had been fertilized in vitro while the genetic father was alive but implanted after his death. Interestingly, a conclusion identical to that reached by Yisraeli is mandated by the United Kingdom's Human Fertilisation and Embryology Act (HFEA) 1990, which legislates that "Where the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not to be treated as the father of the child." The United States Uniform Status of Children of Assisted Conception Act proposes the same position.) The use of fetal tissue for any purpose is halakhically controversial, even if it is used to treat, say, Parkinson's Disease. To be sure, treating infertility also comes under the halakhic license of the physician to heal. If the general permissibility of ova donations is accepted, there seems no pressing argument to distinguish between implanting ovaries in an infertile woman, implanting tissue in a patient suffering from Parkinson's Disease, or simply using tissue for valuable medical research.

As Rabbi J. David Bleich has pointed out, halakhic tradition distinguishes between the ethical question of allowing an abortion for purposes other than saving the mother's health, on the one hand, and that of using the fetal tissue obtained through that abortion, on the other. "Jewish law does not posit a 'Miranda principle' or an exclusionary rule that would, post factum, preclude use of illicitly procured tissue for an otherwise sanctioned purpose."

One judgment that must be made in rendering a decision about the use of fetal tissue is its impact on the public mind-set concerning the ethical permissibility of abortion. "As an instrument for good, the act of abortion will not be perceived as an unmitigated evil.... Surely, at least in some instances [such considerations] will tip the decision-maker's scales against preservation of the fetus."

Of course, donating a fetal ovary is not exactly akin to donating other fetal tissue. A woman may decide to donate brain tissue, for example, from her aborted fetus to a stranger. However, she may demur if the tissue being donated contained her own genetic identity, which would be the case if the tissue were the fetal ovaries. On the other hand, it is possible that a woman would be more willing to get pregnant deliberately in order to donate such ovaries to a close infertile relative than she would be to provide tissue for a relative suffering from Parkinson's Disease. We need not resolve these particular questions to concede that transplanting fetal ovarian tissue is but a specific instance of using fetal tissue for any purpose.

While we have suggested that there is no new ethical problem in the issue of fetal ovary transplants, we are not arguing that the fundamental questions have in any way been settled. Indeed, those who felt comfortable with both general ovum donations and use of fetal tissue for treating Parkinson's Disease may now find themselves uncomfortable with fetal ovary transplants. They might even have to rethink their original positions. That, of course, is the best consequence of any ethical investigation. Headlines do not necessarily make new issues, but they provide us with a stimulus to reconsider the underlying moral issues spawned by cases more prosaic and less "glamorous." Calmly thinking and rethinking the issues that are raised by the new reproductive technolgies is demanded by all those who enter into that realm of medicine which, perhaps more than others, brings us closer to "playing God."

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