THE TEST-TUBE BABY

QUESTION:

The news media report the following successful obstetrical experiment in England: A wife, due to malformation of her Fallopian tubes, could not bring the ova down into contact with her husband’s sperm. Therefore ova were extracted from her and, in a test-tube, were fertilized by her husband’s sperm. The fertilized ovum was then placed into the wife’s womb. She carried the fetus to full term and a normal baby was born (by Cesarean operation). Would such a process of fertilization be deemed permissible in Jewish law or tradition? (Asked by a number of inquirers.)

ANSWER:

THE Medical Tribune (Vol. 19, #27) reports that tens of thousands of inquiries have come to American physicians since the widespread news of the birth of the ‘ ‘test-tube baby” in England. The Tribune adds that it will be quite a long time before such experiments take place in the United States; that is to say, such experiments will, of course, be made with animals but not with humans. The article mentions the fact that the National Institutes of Health have placed a moratorium on federal funding for such experiments on humans until the matter can be reviewed by the National Ethics Advisory Board.

The hesitation by the Ethics Advisory Board clearly indicates a widespread uneasiness, not only in religious but also in secular circles, about such test-tube experiments with human seed and ova. What can be the basis for such uneasiness? Perhaps an indication of the answer is hinted at in the same article (it is by Wendy Grabel) that when natural fertilization occurs in a woman’s body, only one of the innumerable sperms, namely, the most motile sperm, reaches the ovum. Presumably this is the healthiest sperm. But when such fertilization attempts are made in a test-tube, there is no way of knowing which is the healthiest or the most vital of the many sperms. Therefore, it is quite possible that deformed babies, monsters, may result. If, therefore, some bold experimenters dream of using sperm-banks and ovum-banks for the mass production of babies, all sorts of distorted bodies may emerge. We simply do not know, and cannot really know, enough of the results of such an artificial substitute for the natural selection of sperms that can occur in the human body. The National Ethics Advisory Board is therefore quite justified in being extremely cautious, and the Institutes of Health are also justified in declaring a moratorium on such experiments with human sperms and ova.

Curiously enough, some such apprehension (of unnatural results), although in a folkloristic guise, appears in the older Jewish literature. The Talmud (Nidda 13b) declares that any man who consciously wastes his seed (either by masturbation or in emissions) is to be considered a murderer. The Biblical text upon which the idea is based is in Genesis 3 8:8 – 10, in which Onan, the son of Judah, purposely wasted his seed (from which we get the term ‘ ‘onanism”), and God put him to death for it. The Talmud takes this to mean that Onan was put to death as a murderer. His wasting of the seed was considered equivalent to murder because of the potential lives that that seed might have brought into the world in normal sexual relationships.

The later Kabbalists took this Talmudic warning one step further and said that not only is wasting seed to be considered a sin because of the potential lives that might have been created by it, but actually, say the Kabbalists, certain lives are really created by it. But these are distorted lives, not quite human, or as they say it, ruchos, “evil spirits.” This Kabbalistic belief in monsters created by the wasted seed led to a specific regulation with regard to funerals in Jerusalem. About one hundred years ago a Kabbalist, Joseph ben Abraham Molcho, forbade his sons to accompany his body to the grave. The reason for his prohibition is given explicitly in the Kabbalistic work Ha-Kuntres ha-Yechieli, Vol. II, p. 18b, in which it is explained that in order to keep those monsters (created from wasted seed and who claim to be the man’s sons) from going to the funeral, all the sons, even normal ones, are prohibited. This curious custom is still observed in certain Kabbalistic circles in Jerusalem.

This strange Kabbalistic custom, which seems so far-fetched, is not too far-fetched after all, for if scientists should begin to practice wholesale reproduction of humans from sperm and ovum-banks which would be available to them, these “humans” (since we cannot select the most vital sperms) might well turn out to be subhumans, as the Kabbalists declare. The National Ethics Advisory Board, therefore, does well to review this whole possibility with the greatest of care.

However, it must be stated that what was recently accomplished in England in the Brown case was not at all an attempt at wholesale production of anonymous and unasked-for babies, although potentially the same methods might well be used for such a purpose. The actual purpose of the procedure in England was a specific attempt to be of help to one family in which the mother could not pass the ova because of an obstruction in the Fallopian tubes. Therefore some ova were removed from her and fertilized in a test-tube by her husband’s sperm. If, then, this type of procedure is restricted to the one purpose of helping a childless family to have a child, and if the husband’s sperm and the wife’s ovum (or even an ovum from some donor) are to be used, then this is an entirely different matter and may very well have some limited justification in Jewish law and tradition.

Crucial, then, to this question would now be the actual present status of the family concerned, as to whether or not the husband has already fathered children; for it must be understood that, strange as it may seem, the Jewish religious mandate to have children is a mandate incumbent only upon the man and not upon the woman. Therefore it would not be deemed a sin in Jewish law if a woman remained unmarried, but it is deemed a sin if a man remains unmarried. So, too, a woman may for medical reasons be made sterile, but according to Jewish law, a man who has not yet fulfilled his duty of having a son and a daughter may not be made sterile. If, therefore, a man has already fulfilled his duty of begetting a son and a daughter, and then he marries again and the second wife cannot have children, it would be less likely for the test-tube method to be permitted in this case since the woman is not mandated to have children. But if neither the husband nor the wife have any children, then the test-tube method would perhaps be justified—provided, of course, that the type of procedure in itself can be considered acceptable.

Whether the procedure could be acceptable or not would be difficult to determine definitely, inasmuch as such experiments of mixing husband’s sperm with wife’s seed outside of the body were unheard of in the past. Perhaps the only way in which we can ascertain the possible attitude of tradition in this matter would be by analogy, or by the implications of certain attitudes which have already been expressed in the past. Let us, therefore, put the question in this way: If the child in the family has not been brought into the world through the normal sexual relationship between the husband and wife, can the child be deemed truly and completely the child of the family involved? The first relevant implication on this matter can be seen in the ancient Biblical institution of Levirate (i.e., brother-in-law) marriage. If brother A dies childless, it is the duty of brother B to marry the widow (Deuteronomy 25:5 ff.). If a child is born of this second marriage, then the child is deemed by Jewish law to be actually the son of the deceased brother A, and he becomes the heir to the estate of brother A, who is considered to be truly his father. Thus we see that a child may be deemed to be the son, in every sense, of a certain man even if not produced by a sexual relationship between his mother and that man.

A second implication of the same kind is to be found in the situation of adopting a child. Is the adopted child considered in Jewish law to be in every sense the child of the adopting parents? The Talmud (b. Sanhedrin 19b) says that he who raises a child in his house is to be considered his father. Additionally, the Midrash (Exodus R. 46:5) says that he is the father more truly than the one who physically begot the child. This may be considered to be merely a kindly ethical statement. But actually it is a fact in the strict legal sense. Meir of Rothenburg in his responsa (#242, ed. Lemberg) says that if a man writing a legal note refers to an adopted son as “my son,” or the son in a note refers to him as “my father,” this is absolutely valid in every legal sense. This is formally adopted as law (see Choshen Mishpot 42:15, Isserles). So, again, just as in the case of a Levirate marriage, we see that a son, even though not resulting from a normal sexual relationship between those who are now his parents, is deemed in the fullest sense a son in Jewish law.

It has been reported in the Jewish press that Rabbi Goren, the Ashkenazic Chief Rabbi of Israel, has declared that this test-tube fertilization (if the process is for the benefit of a childless couple) is acceptable in Jewish law. I have not seen Rabbi Goren’s statement and therefore cannot know what reasons he may have given for his affirmative decision. But it well may be that he based his decision on the two implications mentioned above and also, of course, on the fact that the duty to have children is a primary duty in Jewish law, and help should be given, if necessary, to fulfill that duty.

It might be added that the Talmud (Chagiga 15a) actually refers to a process of an impregnation of a woman without sexual intercourse. It mentions the possibility that a man may emit seed in a bathhouse and then a woman, following there, may be impregnated by that seed, ibrab’ambeti. In fact, there is a tradition that the author Ben Sirach was the child of the Prophet Jeremiah by such a process of impregnation that occurred without any sexual congress. Dr. Harold Cohen, Clinical Professor of Gynecology at the University of Pittsburgh, has informed me that it has happened that a woman was impregnated, even though no sexual intercourse had occurred, when seed was spilled near her body. The Talmudic concept of impregnation in the bathhouse may not be physically real, but it has at least a rather close resemblance to the modern test-tube method of impregnation in a test-tube, outside of the woman’s body, or as the physicians would say it, not in vivo but in vitro.

To sum up: We may say that the concern on the part of governmental authorities and hesitation as to this test-tube process is more than justified. If the process would encourage some experimenters to the wholesale use of sperm and ovum-banks for the artificial production of human babies, one cannot tell what monstrosities might occur. The Kabbalistic notion of monstrous subhumans resulting from wasted seed is at least a picturesque visualization of a real danger.

Since in Jewish law having children is deemed to be a major duty, and if there is a couple who, because of some malformation in the wife’s Fallopian tubes, cannot achieve normal fertilization in vivo, then, in such a special case, test-tube fertilization and the implanting of the fertilized ovum in the mother’s body for pregnancy would be acceptable, since there are other cases in which a child not created by a normal sexual congress is to be accepted in Jewish law as, in the fullest sense, the couple’s own child.

Of course, if surgery to straighten the Fallopian tubes or recent attempts at transplanting a Fallopian tube will someday be successful, then these procedures, of course, would be superior to the artificial test-tube method, which then would become unnecessary. So far, unfortunately, since surgery on the Fallopian tubes has not been successful and there is less choice in the matter, the procedure followed in England can be (we might say reluctantly) acceptable.