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Halachic Issues in Infertility Treatment

Abstract: Artificial reproductive technology (ART) raises a number of issues in Jewish Law. These include obtaining semen samples, testicular surgery, the possibility of cervical dilation or uterine bleeding making a woman niddah, and the use of donor gametes. The physician should assist the couple in consulting with their rabbi and be willing to be flexible to accommodate their halachic concerns.

Discussion: Medical intervention for the purpose of achieving pregnancy is permitted and even encouraged when needed. However, many of the required procedures raise halachic issues that should be addressed in dealing with halacha observant couples. These include:

Obtaining a sperm sample

Obtaining a sperm sample for in vitro fertilization (IVF) for either male or female factors raises two concerns in Jewish Law.  First, ejaculation of semen outside the vaginal canal may violate the prohibition of hotza'at zera levatalah, generally translated as wasting seed. Many authorities maintain that producing a semen sample for the purpose of enabling procreation does not constitute wasting. However, some disagree with this position.

The second concern is the method of producing the sample. Masturbation raises serious halachic concerns. Therefore, rabbis will often recommend beginning with alternate methods that are less problematic. Some rabbis will suggest that semen be obtained during intercourse by using a condom (with or without a small hole) [1]. Some physicians prefer this method as well, as it may yield a more accurate sample [1]. Each case should be discussed with both the physician and the rabbi prior to embarking on this treatment.

Testicular surgery

Treatment sometimes requires testicular surgery. This presents serious halachic concerns with damaging the testicles [2] [3], which could prohibit the couple from remaining married. A rabbi must be consulted as to the halachically tenable options in each individual case. Most situations can be handled by a rabbi with understanding of the medical procedures working in concert with a physician sensitive to the halachic needs of his or her patient.

Cervical Dilation and Bleeding

Bleeding that is clearly caused by instrumental intervention does not make a woman niddah. Nevertheless, some rabbis are hesitant to disregard bleeding from the uterus (as opposed to the vagina or external cervix). Even when bleeding does not render a woman niddah, it can create halachic difficulties at certain points in her cycle. In particular, she may be unable to obtain the blood-free internal examinations (bedikot) required to complete the seven clean days before mikveh immersion.

Instrumentation that involves the dilation of the cervix beyond a certain minimum (opinions range from 6-19 mm) can make a woman niddah even in the absence of bleeding.

Ovum retrieval, which is performed via the vagina, does not make a woman niddah.

Artificial Insemination

Artificial insemination (both vaginal and intrauterine) is permitted with the husband's sperm. Whether to permit this when the wife is niddah is a matter of rabbinic debate.

Artificial insemination by a donor is a matter of serious halachic debate. Many authorities prohibit this practice. As the commandment to be fruitful and multiply applies only to the husband, use of donor sperm does not fulfill this commandment and thus there is little justification for this intervention. Those who permit it prefer a non Jewish donor to prevent the possibility of future marriage between genetic siblings.

Egg Donation

As the clinical use of egg donation is a relatively new phenomenon [4] [5], there is not yet halachic consensus on this procedure. In Jewish law, the child of a Jewish mother is considered Jewish. In this case, there is debate as to whether the status of the child is based on the egg donor, the woman carrying the child, or both. This answer to that question is important for deciding whether to use a Jewish egg donor (single and unrelated to either spouse) or a non-Jewish one. There is some aversion to involving a non Jew in the conception of a Jewish child for spiritual reasons.  Furthermore, if the child's status is based on the egg donor, the child would require conversion. On the other hand, with a Jewish donor there is concern about the possibility of future marriage between genetic siblings.

Surrogacy

Surrogacy involves many of the same halachic issues as egg donation. In Jewish law, the child of a Jewish mother is considered Jewish. In this case, there is debate as to whether the status of the child is based on the genetic mother, the woman carrying the child, or both. If the birth mother is halachically considered the mother, and the surrogate mother is not Jewish, conversion of the baby would be needed. A Jewish surrogate mother should be single and not related to either the genetic mother or father so as not to raise concerns of adultery or incest. With a Jewish surrogate, the procedure cannot be done secretly. The child will not be allowed to marry future offspring of the surrogate mother, and thus needs to know who she is.

Assuring Parenthood

Once the sperm and eggs are removed from the parents' bodies, there exists the possibility of lab error which would have serious halachic implications as to the identity of the child. While all labs take precautions to avoid such problems, mix ups have occurred [6] [7]. To prevent this, some rabbis require additional halachic supervision to ensure that the appropriate egg and sperm are joined and that any remaining sperm, ova, or embryos are not used for other couples.

Surplus Embryos

Embryos that the couple no longer wishes to use may be destroyed. They may not be implanted in other couples.

Implications for Patient Care: The procedures needed for ART raise a number of issues in Jewish Law. These include procurement of the sperm, damage to testes, the possibility of cervical dilation or uterine bleeding making a woman niddah, and permissibility of the use of donor gametes.

The physician should assist the couple in consulting with their rabbi. If it is not possible to speak to the rabbi directly, providing a written description of the proposed treatment regimen can be helpful.

Physicians should be willing to be flexible to accommodate their patients' halachic concerns.

Medical References

[1] Gerris J. Methods of semen collection not based on masturbation or surgical sperm retrieval.Hum Reprod Update 1999;5(3):211-5. Review.

[2] Schlegel P, Su LM. Physiological consequences of testicular sperm extraction. Hum Reprod 1997;12:1688-92.

[3] Schill T, Bals-Pratsch M, Kupker W, Sandmann J, Johannison R, Diederich K. Clinical and endocrine follow-up of patients after testicular sperm extraction. Fertility and Sterility 2003;79:281-286.

[4] Trounson A, Leeton J, Besanko M, et al. Pregnancy established in an infertile patient after transfer of a donated embryo fertilized in vitro. Br Med J 1983;286:835.

[5] Buster JE, Bustillo M, Thorneycroft I, et al. Nonsurgical transfer of in vivo fertilized donated ova to five infertile women: Report of two pregnancies. Lancet 1983;2:223.

[6] Murray TH, Kaebnick GE. Genetic ties and genetic mixups. J Med Ethics 2003;29(2):65.

[7] Spriggs M. IVF mixup: white couple have black babies. J Med Ethics 2003;29:65.


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