Pidyon haBen for a Test Tube Baby

Last week, I did not give a Shabbat morning at the Riverdale Jewish Center; in thinking about what to send out for this post, I was reminded of a comment of Maharsha, the late 16th century Talmudic commentator, in both Shabbat (from 75b to 76b) and Sanhedrin (from 42b to 49b).  Noting that he was away from the yeshiva, at the big market in Lublin, he says he will not record his comments.

In Sanhedrin, though, he notes that he will record his chiddushei agadot, his thoughts on the less legalistic sections.  He does not explain the distinction, but he perhaps assumed that halachah, law, required the give and take of a yeshiva discussion in order to feel that he had refined his thoughts enough to put them into writing, whereas aggadah was more amenable to individual study and reaction.

I also note that the Lublin market was a significant event in the mid to late 1500s.  Of the 25 mentions of the fair that I found in the Bar-Ilan CD-Rom, 17 came from the writings of Maharsha, Rema, and Bah (and a few of the others were simply citations of those first ones), who all lived around the same time.

Nonetheless, in looking up responsa written on the date of this past Shabbat, 25 Shevat, I found a discussion of artificial insemination in Tsits Eliezer 22; 55 which challenges us in such productive ways that I chose to write it up. I hope you do not find the presentation and analysis too lacking, even if I, too, did not have the chance to share these ideas with the people good enough to listen to me each Shabbat.

A Pidyon haBen Without a Clear Halachic Father

In early Tevet of 5756 (2 January, 1996), R. Dovid Cohen, a well-known halachic decisor in Brooklyn, turned to Tsits Eliezer (le-havdil bein ha-hayyim u-vein ha-hayyim) to ask about a pidyon haben, a redemption of the first-born, for the son of a woman who had been artificially inseminated.  That is, her own ovum had been harvested, fertilized with her husband’s semen, and the embryo implanted in her uterus, which she then took to term.  The reason it was an issue at all is that the Talmud denies the possibility of a redemption for babies born by Caesarean section, explaining that they did not come out of the mother the same way in which they were conceived (an idea that deserves a discussion of its own).  This baby, too, came out a different route than it was implanted, but R. Dovid Cohen assumes the baby should obligate a pidyon.

On the 25th of Shevat, Tsits Eliezer answered, noting that he had commented on this issue at length in his earlier volume, 15;45.  He will later refer to two other responsa, and in the responsum in 15;45, he refers to yet earlier of his responsa—this was a question that recurred for him, and to which he gave much attention and thought.

He gives us a hint of where he’s heading when he notes that because of lineage problems, he thinks the redemption should be performed without a berachah (indicating that he’s not sure that it’s necessary at all), and that the father should be appointed a messenger of the court to redeem the child.  This is because, as he feels he proved in his responsa 19;40 and 20;49, where fertilization occurs outside the womb, the child is halachically related only to the woman in whose uterus it developed, and, halachically, has unclear paternity, if any. 

This denial of the relevance of genetic relationship is even more clear in a 1981 responsum, 15;45, when he addressed the whole idea of test-tube babies, so let’s look at that.

An Innocent Question…

The director of Shaarei Tsedek asked R. Waldenberg about a decision by the Ministry of Health to fund artificial insemination for those couples unable to conceive on their own.   In asking the question, he assumed that the hospital had to limit the procedure to married couples who could not conceive otherwise and use only the genetic materials of the husband and wife.

In making those conditions, he already reminds us that finding a way to allow a childless couple to bear a child is not an absolute value in halachah, although it is an important one. Using genetic material from other people, as far as Tsits Eliezer was concerned, is close to the wife having an adulterous affair.  In addition, already in the question, the doctor recognizes that we would not want to tamper with the natural process out of convenience, only necessity.

Those two assumptions, already, could challenge many of us.  The idea that sometimes we are stuck in an uncomfortable situation, even a distressing one, when others have found an easy way out—and we might not intuitively understand why halachah rejects their simple solution—is a hard one to absorb.  Using nameless genetic material, in a way that involves no contact between the donor and the recipient, certainly doesn’t feel like adultery, and yet Tsits Eliezer (and others, I believe) sees it as a significant issue.  So, too, with unnecessarily tampering with God’s way of working the world.

And a Surprisingly Vehement Answer

Not so fast, responds Tsits Eliezer.  Since I suspect many of us will have difficulty with his views, I want to remind readers that this was an extremely thoughtful and knowledgeable Torah scholar. In his earliest published responsa, which he wrote in his twenties, his breadth of knowledge likely surpassed what most of us will ever know, and he continued learning throughout his life. In addition, he is documentedly an open-minded thinker, reacting to new developments with the readiness to embrace them, should they accord with his understanding of Torah values.  I stress that because he is going to reject artificial insemination; I find his reasoning instructive of concerns and questions we should all raise, even if we might come to different conclusions.

He notes, first, that some halachic authorities prohibited even inseminating a husband’s genetic material into his wife (for cases where they could not do this naturally).  Even among those who permitted it, there was debate as to whether it had to follow the same time restrictions as the niddah laws (which could be an issue for a woman with a cycle that made it impossible to get pregnant by an act of copulation; if the material could be inserted either once she was no longer a niddah on a Torah level, or even while she was still a niddah¸ that sometimes could lead to a successful pregnancy).  In other words, some authorities saw the artificial act as halachically identical to the marital one, and therefore applied to it all the same rules of timing.

A Matter of Trust

In the next paragraphs, Tsits Eliezer raises another concern. While the Health Ministry had agreed that in all the Shaarei Tsedek cases they would use material solely from the couple, that same Ministry was on record as accepting the possibility of using outside genetic materials. Meaning, for couples who did not mind, the Ministry would use other male or female materials to produce a successful conception (even misleading the husband, where necessary, according to Tsits Eliezer).

I think we have become dulled to the aspect of this that horrifies him.  Part of the reason that halachah is so concerned with sexual propriety (only part, I stress) is to allow for clear genetic bloodlines (it is for that reason also, I believe, that for many years rabbis recommended adopting only non-Jewish babies, to avoid bloodline issues).  Artificial insemination with donor material dispenses with exactly that sensitivity.

In addition, in Tsits Eliezer’s view, once the Ministry accepts the morality of creating babies with extramarital donor material, we can no longer trust them to be as careful about this issue as we need.  Since they don’t see a problem in using donor material, we have no guarantee they will not do the same in the case of observant couples—or even, although he does not say this, simply be careless about which materials they use. 

This reminds us that trust isn’t always a question of a moral judgment of another person.  Tsits Eliezer wasn’t saying the Ministry was staffed by bad people, or liars, or cheats; he was saying that their differing morality could easily translate into their not caring about handling a situation as we would need it to be handled.  Even if they are committed to serving Orthodox couples well, they simply won’t care as much about this aspect of the issue as we do.

Tsits Eliezer also notes that a test-tube baby might not be halachically related to either of the parents. I don’t have room to fully discuss that issue, but it reminds us that genetics is not all that counts (even as it was clearly important to him, in that the husband’s donation was the only acceptable one).  It also means, incidentally, that a man who had children in this way was no closer to filling his obligation of having children than other infertile couples; if the motivation for this (as opposed to adoption, for example) were to fulfill a mitzvah, Tsits Eliezer’s view was that it would be ineffective.  We might assume the obligation is to produce children, but Tsits Eliezer is confident that the obligation is to produce children to whom the man is halachically related.

Who Is Wise? He Who Is Aware of Outcomes

The final piece of the responsum I want to note is his worry that all of this leads down a road that could end at having pregnancies and childbirth be a completely out of body experience, that conception and incubation could all occur outside of the woman’s body.  Even more so—and this responsum is written in 1981, remember—he envisions cloning as opposed to uniting the genes of two people, all of which circumvents the natural system God wanted, and produces children who are lacking significant aspects of their humanity (for example: Tsits Eliezer seems to think of the “randomness” of mixing genetic material from two people is crucial to offering children the chance to each be his or her own person).  Another problematic possibility would be women simply becoming pregnant without the benefit of marriage.  While none of that was happening yet, he assumed that would be the direction in which it would head (as, indeed, it has in many cases).

All of which, in his mind, combines to militate for resisting test-tube babies, even from the couple’s own genetic material.  I pause to note that, while he doesn’t stress the point, it is certainly easier to oppose the insemination when you are confident that it will not serve an halachically important purpose—if insemination helped the husband fulfill the mitzvah of bearing children, but came with concomitant dangers, that would be a harder discussion. Here, the child produced does not do that, and that simplifies matters for Tsits Eliezer.

His certainty might not be ours, however.  We might wonder when we allow ourselves to take actions that are currently unobjectionable, and when do we see likely outcomes as problematic or worrisome enough to resist the action itself?

That’s a truly complicated and interesting question.  On some occasions, we tell ourselves that we cannot pretend to know exactly how the future will go, and can only act appropriately in each moment. On other occasions, we have to think about the future our present actions are helping to foment.  However  that affects our assumptions about fertility treatments—an issue made harder by our we need to convince couples, according to Tsits Eliezer, that their artificially inseminated baby is no more theirs than an adopted one, and that the existence of a seeming solution to their infertility is not so, halachically.  It is a challenge that arises any time we have a course of action that presents no obvious current problems, but is seen by some or many as likely to lead to problematic outcomes. It’s probably not one answer, but thinking about it is necessary to a properly cautious halachic life.

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Mr. Martin Kaufman was educated at Yeshiva Universty and New York University"s Graduate School of Business Administration. Was Chairman and CEO of Philipp Brothers, formerly one of the world's largest commodity trading companies. He is a global consultant to entities in the financial and natural resource sectors all over the world. Mr. Kaufman has lectured extensively in numerous Adult Education programs for many years and presently gives shiurim in the New York City area. He has also served on two boards of Yeshiva University, amongst many other Boards. Mr. Kaufman lives in Manhattan with his wife and three children.

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