In this article published right after that of Rabbi Ralbag, Rav Yaakov Epstein comes out against the lenient ruling regarding children born to single women who have been artificially inseminated.
Rav Epstein approaches this issue mainly through the perspective of the issue of שתוקי, and he main conclusion from his analysis of this issue is that a שתוקי is generally dealt with strictly, and is considered to be at best a ספק ממזר, and that a child whose father is not known due to AI almost definitely falls into this category.
With regard to the notion that a woman who goes to a hospital to be artificially inseminated is dealt with as if the case is one of כל דפריש מרובא פריש, Rav Epstein raises a doubt as to whether this is really the case. He notes that in order to invoke פריש we rely on the idea that the semen is no longer connected to its donor. However, since the woman does come to an established location (the hospital), there may be room to say that she is really entering into a case of כל קבוע כמחצה על מחצה דמי. Even if this is not a true case of קבוע, and even if it thus falls into the פריש realm, since we are dealing with a case of ספק ממזר we are going to be strict.
Another line of leniency would be to allow the doctor to testify that the donor is someone who would not render the child a ממזר. However, Rav Epstein notes that this is nearly impossible for a number of reasons. First, sperm banks rely on the anonymity of the donors, and thus the doctors are unlikely to be able to make such a statement (and they would need to know not only the identity of the donor, but also be able to confirm that the semen implanted in the woman definitely came from that donor and that the woman had not received any other semen). Furthermore, Rav Shlomo Zalman Auerbach ruled in such a case that there are at least two problems that would remain - the suspicion of זנות on the part of the woman [ed. - would this change if such procedures become more common?] and the fact that since the semen is obtained via הוצאת זרע לבטלה that this would somehow convey a bad influence on the child that would be born as a result. Finally, Rav Epstein notes that given the various halachic implications of fatherhood, there is a necessity for a fairly high level of נאמנות in establishing paternity, and such a level is virtually impossible in this case.
Finally, Rav Epstein notes the position of Rav Moshe Feinstein which claims that the status of ממזר can only be conferred via intercourse and not through AI. He rejects this position, noting that most other poskim do not follow this view.
Showing posts with label artificialinsemination. Show all posts
Showing posts with label artificialinsemination. Show all posts
Monday, December 27, 2010
Sunday, December 26, 2010
Artificial Insemination - Rav Mordechai Ralbag - Techumin 24
In this article in Techumin volume 24, Rav Mordechai Ralbag (a חבר בית דין in Yerushalayim) discusses the issue of a single woman who is artificially inseminated (AI) and the status of the child. At the outset, he notes that he is not endorsing the practice, but rather is discussing what happens with the child assuming that a woman has proceeded with said procedure.
Rabbi Ralbag begins by assuming that the most common case of AI is with a married couple who is having fertility issues. He notes that although there is some discussion on the issue, most poskim allow the husband to make his semen available for such a procedure, without worrying about השחתת זרע לבטלה, as there is a clear purpose in this case. However, everyone agrees that so long as the woman is married there is no permission given for another man to donate his semen. There are various reasons given for this prohibition - ranging from an איסור דאורייתא to a range of concerns that will develop down the road to a visceral distaste - but the agreement on the basic law stands.
In terms of the status of the child in such a case, if the donor is not Jewish then the child is fine, as the law is that a non-Jewish man who impregnates a Jewish woman produces a child whose halachic status is clear. If the donor is a Jew, then there is a debate as to whether or not the child has the status of a ממזר.
When it comes to the case of a sperm bank, how are we to deal with the identification of the donor, assuming that the bank keeps such information private? Outside of Israel, we can assume that most donors are not Jewish, and thus certainly for a single girl there will be no problem, since Rav Moshe Feinstein and Rav Yaakov Breisch have already established that we can follow the majority. If the woman is married, then things are more complicated, since what happens if the donor was in fact a Jew? Rabbi Ralbag invokes the rules of כל דפריש מרובא פריש - that since the woman goes to the hospital to be impregnated, then the sperm is considered to be separated from its source, it which case we can assume that it was derived from the majority, which in the case of חוץ לארץ means that it came from a non-Jew.
Based on an argument about the difference between שתוקי and אסופי, Rabbi Ralbag posits three possible views for our case, where the identity of the mother is known but that of the father is not:
1) According to the Maharit, the child is considered a שתוקי since even the mother does not know the identity of the father, and thus the child is a ספק ממזר.
2) According to the Noda BiYehuda, the child is considered to be an אסופי who has a sign on him (namely that his mother is protecting him). Thus, there is no ספק on the mother, and the ספק on the child is lifted by the fact that the child is considered to be פריש and thus is כשר.
3) According to the Yeshuot Yaakov and the Beit Meir, it is possible that there is no problem at all, since, based on a Gemara in Sotah, we learn that זנות is only an issue when there is actual intercourse, which did not take place in the case of AI. As such, it could be that the child is complete כשר. On the other hand, it is possible that since we know that the single mother became pregnant without know who the father is that the child will be deemed a שתוקי.
Rabbi Ralbag brings his analysis to an end by citing the view of Rav Moshe Feinstein (cited earlier on this blog) that ממזרות can only be contracted via an actual act of intercourse, and since there is none in this case, the child will be fine even if the father is himself a ממזר.
In his conclusion, Rabbi Ralbag brings support from both Rav Shalom Messas (Rav of Yerushalayim) and Rav Zalman Nechemiah Goldberg, that his analysis is correct and that if a single woman does receive AI, even though it is not advised at the outset, nevertheless the child will be deemed כשר and acceptable to marry another Jew without question.
Rabbi Ralbag begins by assuming that the most common case of AI is with a married couple who is having fertility issues. He notes that although there is some discussion on the issue, most poskim allow the husband to make his semen available for such a procedure, without worrying about השחתת זרע לבטלה, as there is a clear purpose in this case. However, everyone agrees that so long as the woman is married there is no permission given for another man to donate his semen. There are various reasons given for this prohibition - ranging from an איסור דאורייתא to a range of concerns that will develop down the road to a visceral distaste - but the agreement on the basic law stands.
In terms of the status of the child in such a case, if the donor is not Jewish then the child is fine, as the law is that a non-Jewish man who impregnates a Jewish woman produces a child whose halachic status is clear. If the donor is a Jew, then there is a debate as to whether or not the child has the status of a ממזר.
When it comes to the case of a sperm bank, how are we to deal with the identification of the donor, assuming that the bank keeps such information private? Outside of Israel, we can assume that most donors are not Jewish, and thus certainly for a single girl there will be no problem, since Rav Moshe Feinstein and Rav Yaakov Breisch have already established that we can follow the majority. If the woman is married, then things are more complicated, since what happens if the donor was in fact a Jew? Rabbi Ralbag invokes the rules of כל דפריש מרובא פריש - that since the woman goes to the hospital to be impregnated, then the sperm is considered to be separated from its source, it which case we can assume that it was derived from the majority, which in the case of חוץ לארץ means that it came from a non-Jew.
Based on an argument about the difference between שתוקי and אסופי, Rabbi Ralbag posits three possible views for our case, where the identity of the mother is known but that of the father is not:
1) According to the Maharit, the child is considered a שתוקי since even the mother does not know the identity of the father, and thus the child is a ספק ממזר.
2) According to the Noda BiYehuda, the child is considered to be an אסופי who has a sign on him (namely that his mother is protecting him). Thus, there is no ספק on the mother, and the ספק on the child is lifted by the fact that the child is considered to be פריש and thus is כשר.
3) According to the Yeshuot Yaakov and the Beit Meir, it is possible that there is no problem at all, since, based on a Gemara in Sotah, we learn that זנות is only an issue when there is actual intercourse, which did not take place in the case of AI. As such, it could be that the child is complete כשר. On the other hand, it is possible that since we know that the single mother became pregnant without know who the father is that the child will be deemed a שתוקי.
Rabbi Ralbag brings his analysis to an end by citing the view of Rav Moshe Feinstein (cited earlier on this blog) that ממזרות can only be contracted via an actual act of intercourse, and since there is none in this case, the child will be fine even if the father is himself a ממזר.
In his conclusion, Rabbi Ralbag brings support from both Rav Shalom Messas (Rav of Yerushalayim) and Rav Zalman Nechemiah Goldberg, that his analysis is correct and that if a single woman does receive AI, even though it is not advised at the outset, nevertheless the child will be deemed כשר and acceptable to marry another Jew without question.
Tuesday, November 16, 2010
More on Artificial Insemination - Igrot Moshe Even HaEzer 1:71 and 4:32.5
In 1959, Rav Moshe Feinstein was asked about a married woman who was having trouble becoming pregnant from her husband and was considering artificial insemination. Apparently, there was a practice known as adding a "booster," which would be some semen from the husband added to that of the (anonymous) donor. According to Rav Moshe Dovid Tendler (Rav Feinstein's son-in-law and a physician as well as a Rav), the booster was merely a ruse to calm the husband and to make him feel that the child was at least in part his.
Several issues come out of this point. First, Rav Moshe writes that any artificial insemination should use a non-Jewish donor, as that will pre-empt any potential issues of the child one day marrying a relative, since he will not be halachically related to his unknown father's family. Second, if the woman is concerned that her husband's fertility issues (in this case taken to be low sperm count) will heal in the next few months, then she should not be intimate with her husband during the next three months so as to confirm that the child belongs to the donor.
Rav Moshe also notes that if the identity of the donor is not known at all then it can be assumed in America to be that of a non-Jew, since most of the population is non-Jewish and since the way in which the semen is obtained is against halacha and thus it is unlikely to be from a Jewish donor.
Rav Moshe rejects the view that being artificially inseminated is tantamount to promiscuity, but he does note that it should be done with the consent of the husband since if the woman does become pregnant that will place burdens on the husband both financially, emotionally, and will limit his ability to be intimate with his wife.
In the final paragraphs of the teshuva Rav Moshe discusses a situation where the husband's issue is more that his strength is such that he cannot impregnate his wife, although his semen can if it could be made to reach the ova. In such a case the question becomes whether it is permissible for the husband to become his wife's artificial donor. In addressing this, Rav Moshe discusses some of the methods by which the semen is obtained from the donor (I am not going to get specific, although the teshuva does), and he concludes that since the purpose of obtaining the semen is in order to impregnate his wife, it would not be considered הוצאת זרע לבטלה and therefore he could be דש מבפנים וזורה מבחוץ.
In the second teshuva, written in 1981, Rav Moshe defends his earlier teshuvot, noting that he does not recommend artificial insemination as it does not constitute a fulfillment of פרו ורבו and it is possible that it will cause the husband to become jealous. However, in the case where the plan is to use the husband's semen, either because regular intercourse is not succeeding but both husband and wife have been determined to be fertile, or because the woman's menstrual cycle is such that it is virtually impossible for them to ever have a halachically acceptable opportunity to conceive, then Rav Moshe stands by his view that such a plan could be carried out.
Several issues come out of this point. First, Rav Moshe writes that any artificial insemination should use a non-Jewish donor, as that will pre-empt any potential issues of the child one day marrying a relative, since he will not be halachically related to his unknown father's family. Second, if the woman is concerned that her husband's fertility issues (in this case taken to be low sperm count) will heal in the next few months, then she should not be intimate with her husband during the next three months so as to confirm that the child belongs to the donor.
Rav Moshe also notes that if the identity of the donor is not known at all then it can be assumed in America to be that of a non-Jew, since most of the population is non-Jewish and since the way in which the semen is obtained is against halacha and thus it is unlikely to be from a Jewish donor.
Rav Moshe rejects the view that being artificially inseminated is tantamount to promiscuity, but he does note that it should be done with the consent of the husband since if the woman does become pregnant that will place burdens on the husband both financially, emotionally, and will limit his ability to be intimate with his wife.
In the final paragraphs of the teshuva Rav Moshe discusses a situation where the husband's issue is more that his strength is such that he cannot impregnate his wife, although his semen can if it could be made to reach the ova. In such a case the question becomes whether it is permissible for the husband to become his wife's artificial donor. In addressing this, Rav Moshe discusses some of the methods by which the semen is obtained from the donor (I am not going to get specific, although the teshuva does), and he concludes that since the purpose of obtaining the semen is in order to impregnate his wife, it would not be considered הוצאת זרע לבטלה and therefore he could be דש מבפנים וזורה מבחוץ.
In the second teshuva, written in 1981, Rav Moshe defends his earlier teshuvot, noting that he does not recommend artificial insemination as it does not constitute a fulfillment of פרו ורבו and it is possible that it will cause the husband to become jealous. However, in the case where the plan is to use the husband's semen, either because regular intercourse is not succeeding but both husband and wife have been determined to be fertile, or because the woman's menstrual cycle is such that it is virtually impossible for them to ever have a halachically acceptable opportunity to conceive, then Rav Moshe stands by his view that such a plan could be carried out.
Tuesday, November 9, 2010
Artificial Insemination - Status of the Woman and the Child - Igrot Moshe Even HaEzer 1:10
Rav Moshe Feinstein was asked in 1961 about a woman whose doctor had artificially inseminated her insofar as she and her husband had been unsuccessful in having children and the suspicion was that it was a deficiency on his part, not hers. The question raised was whether the woman would be forbidden to her husband like an אשת איש שזינתה and what the status of the child would be.
In terms of the woman, Rav Moshe ruled that she would still be permitted to her husband, since a woman is only forbidden to her husband as the result of having illicit sexual relations, which did not occur in this case. The mere presence of another man's semen in her uterus is not, in Rav Moshe's view, sufficient cause to force her to separate from her husband.
In terms of the child, Rav Moshe is similarly lenient. He postulates that the child would only be a mamzer if there had been forbidden relations, but since there were not the child is thus כשר. As proof, he cites the case of Ben-Sira, who was allegedly conceived when his mother absorbed a man's semen by entering a bath after he had been in there - and yet Ben-Sira was considered to be ולד כשר. Even further, Rav Moshe rules that even if the doctor claimed that the semen was from a Jewish man he is not to be believed (this is assuming a non-Jewish doctor in America), since we assume that he only said that knowing that the woman was Jewish and that she would have preferred that the donor be Jewish. However, since most donors in America are not Jewish, we can rely on that רוב and the child would be permitted to marry anyone. If the child were to wind up being a girl, Rav Moshe is prepared to allow her to marry a kohen, demonstrating just how far he is willing to go with this line of thinking.
The only way in which Rav Moshe sees some deficiency in the lineage of the child is that he absolves the husband - who is not the father - from having to provide for this child or from having to pay for the delivery, although that latter ruling is due to the fact that he was not complicit in the decision to inseminate the woman.
(Note that unlike the teshuva posted from Rav Sherlo on this topic, in this case the woman was married and had not succeeded in conceiving. I am not sure what Rav Moshe would rule about a single woman who wanted a child without marrying - but stay tuned.)
In terms of the woman, Rav Moshe ruled that she would still be permitted to her husband, since a woman is only forbidden to her husband as the result of having illicit sexual relations, which did not occur in this case. The mere presence of another man's semen in her uterus is not, in Rav Moshe's view, sufficient cause to force her to separate from her husband.
In terms of the child, Rav Moshe is similarly lenient. He postulates that the child would only be a mamzer if there had been forbidden relations, but since there were not the child is thus כשר. As proof, he cites the case of Ben-Sira, who was allegedly conceived when his mother absorbed a man's semen by entering a bath after he had been in there - and yet Ben-Sira was considered to be ולד כשר. Even further, Rav Moshe rules that even if the doctor claimed that the semen was from a Jewish man he is not to be believed (this is assuming a non-Jewish doctor in America), since we assume that he only said that knowing that the woman was Jewish and that she would have preferred that the donor be Jewish. However, since most donors in America are not Jewish, we can rely on that רוב and the child would be permitted to marry anyone. If the child were to wind up being a girl, Rav Moshe is prepared to allow her to marry a kohen, demonstrating just how far he is willing to go with this line of thinking.
The only way in which Rav Moshe sees some deficiency in the lineage of the child is that he absolves the husband - who is not the father - from having to provide for this child or from having to pay for the delivery, although that latter ruling is due to the fact that he was not complicit in the decision to inseminate the woman.
(Note that unlike the teshuva posted from Rav Sherlo on this topic, in this case the woman was married and had not succeeded in conceiving. I am not sure what Rav Moshe would rule about a single woman who wanted a child without marrying - but stay tuned.)
Sunday, November 7, 2010
Having a child without having a husband - Rav Yuval Sherlo
In a recent teshuva posted online, Rav Yuval Sherlo, the Rosh Yeshiva of the Yeshivat Hesder in Petach Tikva, deals with a question painfully posed by a 36-year old unmarried woman. In her query, the woman lays out her pain over not having found a husband despite 15 years of trying, and her realization that her biological clock is ticking and her chance to conceive a child is quickly slipping away. As such, she asks point-blank what avenue is available to her to be able to bring a child into the world.
Rav Sherlo begins his answer by emphasizing the stress that halacha and Jewish tradition place on the family unit and on having a child within the context of marriage. That being said, he notes two schools of thought regarding a woman who has not had success with creating such a unit. One school of thought obligates the woman to subjugate her personal desire for a child to the more global and universal requirement to do so within the context of marriage. On the other hand, there are those who think that if a woman has exhausted all options in this realm and still has been unsuccessful, that perhaps we can look to alternative methods of helping such a woman bear a child, inasmuch as a woman who does not have children is lacking something crucial in her life (as seen by Rachel Imeinu's plea to Yaakov to have a child with her).
Rav Sherlo himself favors this second view and thus he proceeds to investigate the different options that are available. He lists three ways in which a woman could conceive a child - through relations with a man (obviously in this case either without marriage or through a sham marriage that would be done only to validate the conception), through artificial insemination, or through in vitro fertilization. Rav Sherlo weighs the pros and cons of each approach, and concludes that artificial insemination would be most preferable.
Once that question is decided, the issue becomes who should be used as a donor. Ideally, the woman should try to find a known Jewish donor, and make a contractual agreement in terms of any future responsibilities. Knowing the donor will obviously be helpful in terms of yichus issues. If that option is not available and the donor will be anonymous, then Rav Sherlo suggests using a non-Jewish donor so as to avoid the possibility that the child will be a shtuki and thus disqualified from marrying another Jew.
In a follow-up and much lengthier part to this teshuva, Rav Sherlo defends his position from numerous criticisms that he received online. He begins by rebuffing those who attacked him as an enemy of the Jewish family, noting both his opening to his teshuva as well as his involvement in organizations that work to strengthen Jewish families. He further rejects those who object on the grounds of the welfare of the child that will be born, noting that there are plenty of children raised by one parent who turn out fine, and many raised by two parents who have troublesome home situations. He also rejects the notion that the woman involved is only in this for her own ego. To that last point, Rav Sherlo notes that the questioner had clearly exhausted her options and that accusations of egomania are insensitive to the highest degree.
At the end of the day, Rav Sherlo sees his ruling and his publicizing of it as a necessary response to not only the desperate case of one woman, but also to the perception that halacha is not responsive to the needs of individuals. He notes that there are certainly cases where halacha's limitations prevent us from solving certain problems - but that only makes it more important to make it known when halacha is capable of relieving someone's pain.
(Thank you to Dr. Scott Chudnoff for bringing this teshuva to my attention)
Rav Sherlo begins his answer by emphasizing the stress that halacha and Jewish tradition place on the family unit and on having a child within the context of marriage. That being said, he notes two schools of thought regarding a woman who has not had success with creating such a unit. One school of thought obligates the woman to subjugate her personal desire for a child to the more global and universal requirement to do so within the context of marriage. On the other hand, there are those who think that if a woman has exhausted all options in this realm and still has been unsuccessful, that perhaps we can look to alternative methods of helping such a woman bear a child, inasmuch as a woman who does not have children is lacking something crucial in her life (as seen by Rachel Imeinu's plea to Yaakov to have a child with her).
Rav Sherlo himself favors this second view and thus he proceeds to investigate the different options that are available. He lists three ways in which a woman could conceive a child - through relations with a man (obviously in this case either without marriage or through a sham marriage that would be done only to validate the conception), through artificial insemination, or through in vitro fertilization. Rav Sherlo weighs the pros and cons of each approach, and concludes that artificial insemination would be most preferable.
Once that question is decided, the issue becomes who should be used as a donor. Ideally, the woman should try to find a known Jewish donor, and make a contractual agreement in terms of any future responsibilities. Knowing the donor will obviously be helpful in terms of yichus issues. If that option is not available and the donor will be anonymous, then Rav Sherlo suggests using a non-Jewish donor so as to avoid the possibility that the child will be a shtuki and thus disqualified from marrying another Jew.
In a follow-up and much lengthier part to this teshuva, Rav Sherlo defends his position from numerous criticisms that he received online. He begins by rebuffing those who attacked him as an enemy of the Jewish family, noting both his opening to his teshuva as well as his involvement in organizations that work to strengthen Jewish families. He further rejects those who object on the grounds of the welfare of the child that will be born, noting that there are plenty of children raised by one parent who turn out fine, and many raised by two parents who have troublesome home situations. He also rejects the notion that the woman involved is only in this for her own ego. To that last point, Rav Sherlo notes that the questioner had clearly exhausted her options and that accusations of egomania are insensitive to the highest degree.
At the end of the day, Rav Sherlo sees his ruling and his publicizing of it as a necessary response to not only the desperate case of one woman, but also to the perception that halacha is not responsive to the needs of individuals. He notes that there are certainly cases where halacha's limitations prevent us from solving certain problems - but that only makes it more important to make it known when halacha is capable of relieving someone's pain.
(Thank you to Dr. Scott Chudnoff for bringing this teshuva to my attention)
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