NRR OVUM

THE TRANSPLANTED OVUM

QUESTION:

The gynecological procedure involved in the question is as follows: A fertilized ovum will be removed from a woman’s womb and inserted into the womb of another woman, who will then bear the baby for the full term of months and is expected to give birth to a normal child. The question is, will this baby be considered to be the child of the donor of the fertilized ovum or of the woman who carried it in her womb for full term and gave birth to it? (Asked by Rabbi Harold L. Robinson, Hyannis, Massachusetts.)

ANSWER:

IT IS NOT quite clear whether the procedure described has already been practiced a considerable number of times or whether it is just contemplated and is for the present theoretical. Even if it is only theoretical, it is an interesting and important question because it may become practical (if actually feasible); then, as the practice becomes widespread, it will certainly find strong echoes in the Jewish legal literature. What, then, is (or would be) the Halachic attitude to this procedure of transplanting a fertilized ovum from one woman’s womb to another’s?

As far as I know, there has not been the slightest mention of such a procedure in the Halachic literature. If the practice becomes known, the earliest mention of it will very likely be in the medical-legal symposia conducted in Israel these days and published under the imprint Assia. When the matter will be discussed, it is fairly clear that the basic question will be that which is asked here, namely, what is the parentage of the child. It is also clear on what basis the discussion will begin and proceed.

The foundation for this forthcoming Halachic discussion on ovum transplants will be the already well known practice of artificial insemination, which, although also fairly new, has been widespread enough to find considerable discussion in the Halachic literature.

As for this debate on artificial insemination, like all such Halachic debates, it is based upon the Talmud. The Talmud (Chagiga 14b-15a) discusses a question based upon the Biblical verse in Leviticus 21:13-14, which states that the High Priest may marry only a virgin. The Talmud then asks this question of Ben Zoma: If a High Priest had married a virgin but then discovered that, although still a virgin, she is pregnant, what is the status of the child, etc.? Ben Zoma is asked how it was possible that this wife of the High Priest could be pregnant and yet remain a virgin. He said that it was possible that she was impregnated in the bath. Rashi explains this answer as follows: In a public bath place, some male bather had emitted semen, and later this young woman, bathing there too, was impregnated by it. (By the way, a gynecologist has implied to me that this Talmudic idea of impregnation without intercourse is quite possible.) This Talmudic idea of a woman thus receiving sperms without sexual intercourse is the basis of all the Halachic debate on artificial insemination. It will also be the basis of the debate on the question you have raised here.

By the way, Dr. Alexander Guttmann of the College faculty and I have both written responsa on artificial insemination. They are found in the Conference Year Book, Vol. 62. I will mention now only the two latest responsa on the subject, namely, one by the former Sephardic Chief Rabbi of Israel, Benzion Uziel (in Mish-potey Uziel, Even Hoezer, #19), and also one by Moses Feinstein, the most honored American Orthodox respondent, in his second volume on Even Hoezer #11. I mention both of these scholars to point out the rather important fact that after perhaps thirty years of Halachic debate, these leading authorities disagree with each other on the basic problem of the child’s paternity in artificial insemination. Benzion Uziel is inclined to the opinion that the mother who receives the seed in artificial insemination is the true parent, whereas Moshe Feinstein believes that the donor of the seed in artificial insemination is the true parent.

It might be worth mentioning that Feinstein’s decision that it is the donor who is the true parent is not an absolutely firm conviction with him, because, he says, although the donor is to be considered the parent, he is not a parent to the extent that the child born from his donation would free his wife from chalitza. That is to say, if a man dies childless, his wife cannot remarry unless her brother-in-law gives her chalitza, but if her husband has had a child from any woman (even a woman who was not his wife), the wife is freed from chalitza. In other words, Moses Feinstein says that the donor is to be the parent, but not completely so; if he has no other children, his wife must undergo chalitza if he dies.

It is, then, upon the basis of the laws developed in the debate over artificial insemination that the question of paternity involved in the ovum transplant will be decided; and since the question of paternity in artificial insemination is still a subject of disagreement between the two prime authorities, we may well say that the question of paternity and inheritance in the case of the ovum transplant is quite open and undecided. It will, of course, have to be cleared up later if the practice becomes widespread, but at present we may say it is an open question.

I am now informed that the actual situation is as follows: The sperm from the husband of the infertile woman is placed in the womb of another woman, the ovum donor, by means of artificial insemination. Thus the ovum of the ovum donor and the sperm of the husband are united and the ovum becomes impregnated. After a brief time, this impregnated ovum is put into the womb of the barren wife and she carries it to full term and a normal baby is then born. As to this situation, it should be mentioned that the mixing of a man’s seed with the ovum of a woman not his wife cannot be considered adulterous. If it were adulterous, then the child would be considered a mamzer. But it is not adulterous because in this mixture of sperm and ovum there is no bodily contact. This decision was already made by many authorities in the case of artificial insemination. So, first of all, it is to be stated that there is no Jewish legal objection to this mixture of sperm and ovum.

As for the parentage of the child, it is almost impossible to come to a definite conclusion on the basis of the Halachah, inasmuch as this situation is totally unprecedented. However, while we cannot be certain, we can speak of the probabilities involved here. In general, the tendency of Jewish law is to emphasize the relation of the child to the paternal parent. This is based first upon the Mishnah Kiddushin 3:12. The rule there given is as follows: Whenever there is a valid marriage and no sin involved, the child has the status of the male parent. Thus, for example, if a Kohen marries an Israelite woman, such a marriage is both valid and without sin, and therefore the child follows the male and is a Kohen. So, too, if an Israelite marries a Kohen woman, this again is a valid, sinless marriage, and the child again follows the male and is Israelite since his father is Israelite. In other words, the general rule of the law with regard to normal, everyday marriages is that the child has the status of the father. This is discussed in the Talmud, Kiddushin 66b—67a. Rashi there explains why, in general, in normal marriages the child follows the status of the father rather than that of the mother. He bases it on Scripture, the first chapter of the Book of Numbers, which says a number of times that the Children of Israel shall be numbered according to their father’s house.

There is also a second consideration. The fertilized ovum is carried in the womb of the wife for full term. Does the fact that the body matures in the womb of the wife have any bearing on the status of the child? It does, definitely. This can be seen from the special case of a pregnant proselyte. A woman became pregnant while a Christian (presumably pregnant by a Christian man). During her pregnancy, she becomes converted to Judaism. After her conversion, her child is born. What is the status of the child? Is it a Gentile who needs to be converted, since both parents were Gentile? The answer of the overwhelming number of authorities on this matter is that the child is part of the mother’s body and the conversion ritual (the mikvah) converts not only the mother, but the child that she is carrying (see the authorities cited in the responsum, “The Pregnant Proselyte,” in Modern Reform Responsa, pp. 143 ff.).

While the situation here is far different from normal marriage, the attitude of the law to normal marriage may serve as an analogy in this special situation. Since the tendency of the law is to emphasize the influence of paternity, and since the wife carries the child and, therefore, according to the law her status impresses itself upon the child, these constitute two reasons why the child here in question should be considered the offspring of the married couple. Of course, as has been said, the situation is unusual, but the likelihood is that as the study of this problem develops, the tendency of the law will likely be to reach the above conclusion.