Selected Halacha on Conception, Adoption & Parenthood

Adoption

(There is not so much Halacha here as Aggadah [story/legend])

Contemporary American Reform Responsa

35. Adopted Children and Their Biological Parents

April 1983

https://www.ccarnet.org/ccar-responsa/carr-57-59/

In the matter of qaddish, one view has stated that it is the duty of the natural children to say qaddish for their biological parents. This commandment is incumbent upon them, while for adopted children the obligation is assumed. It is prompted by love and conscience, but it is not their duty (Jacob Colon, Responsa; Hatam Sofer, Responsa Orah Hayim #164). On the other hand, the earlier Isserles disagreed and stated that children have the same rights in this matter as biological children (Isserles to Shulhan Arukh Orah Hayim 118), as for example, in leading congregational services at the time of yahrzeit, etc.

Conception

Artificial Insemination- in the realm of Medical Ethics

Knowledge of one's paternity is important in halacha to avoid engaging in illicit sexual relationships - those with close family members or between Cohanim (the priestly class) and sexual partners forbidden to them (divorcees, those of unknown parentage, etc). We cannot ignore the importance of laws of inheritance as well as a male's commandment to be fruitful and multiply (see above).

According to Dr. Mark Washofsky, in his book Jewish Living: A Guide to Contemporary Reform Practice (1st ed), notes that among the Reform community "The various halakhic concerns raised by traditional responsa, such as the possibility that the child might grow up to marry a blood relative, are too statistically far-fetched to take seriously" (235).

The Talmud goes to great lengths discussing how to avoid accidentally "wasting seed" to avoid transgressing the commandment to "be fruitful and multiply." The rabbis acknowledge that procreation is not the only reason to engage in sexual intercourse, but it is assumed that a male and female partner engage in sexual intercourse with the intention of producing a child. A man is obligated to do so by the commandment, and a woman is assumed to have the desire to produce a child (if she does not, the traditional world regards it as an emotional issue, not a halachic issue).

For a more comprehensive look at liberal Jewish attitudes about IVF, see: CCAR Responsum In Vitro Fertilization and the Mitzvah of Childbearing https://www.ccarnet.org/responsa-topics/in-vitro-fertilization-and-the-mitzvah-of-childbearing/

Abortion & "When Life Begins"

the language we will see is "when does the fetus become a nefesh (soul)?"

American Reform Responsa

Abortion

1958

https://www.ccarnet.org/ccar-responsa/arr-541-543/

[The question is: A young woman has contracted German measles in the third month of her pregnancy. Her doctor says that her sickness creates the possibility that the child, if born, may be deformed in body or mind. Some doctors, however, seem to doubt that this will happen. In other words, there are various opinions as to the probability of the child being born deformed. May she, according to Jewish law, or to Reform interpretation of Jewish law, have an abortion done to terminate the pregnancy?

The author cites three early modern/modern responsa:]

I. The first responsum is by a great authority, Yair Chaim Bachrach, of Worms [Germany], 17th century. In his responsum (Chavat Ya-ir, #31) he was asked the following question: A married woman confessed to adultery, and, finding herself pregnant, asked for an abortion. Bachrach was asked whether it is permissible by Jewish law to do so. He discusses most of the material that I have mentioned above, and at first says that it would seem that a fetus is not really a nefesh and it might be permitted to destroy it, except that this would encourage immorality. But he continues, from the discussion of the Tosafotin Chulin, that a Jew is not permitted (even though he would not be convicted) to destroy a fetus, that it is forbidden for him to do so.

II. Yet in the next century the opposite opinion is voiced, and also by a great authority, namely Jacob Emden (Ya-avets I, 43). He is asked concerning a pregnant adulteress whether she may have an abortion. He decides affirmatively, on the rather curious ground that if we were still under our Sanhedrin and could inflict capital punishment, such a woman would be condemned to death and her child would die with her anyhow. Then he adds boldly (though with some misgivings) that perhaps we may destroy a fetus even to save a mother excessive physical pain.

III. A much more thorough affirmative opinion is given by Ben Zion Uziel, the late Sephardic Chief Rabbi (in Mishpetei Uzi-el III, 46 and 47). He concludes, after a general analysis of the subject, that an unborn fetus is actually not a nefesh at all and has no independent life. It is part of its mother, and just as a person may sacrifice a limb to be cured of a worse sickness, so may this fetus be destroyed for the mother’s benefit. Of course, he reckons with the statement of the Tosafot in Chulin 33a that a Jew is not permitted (la shari) to destroy a fetus, although such an act is not to be considered murder. Uziel says that, of course, one may not destroy it. One may not destroy anything without purpose. But if there is a worthwhile purpose, it may be done. The specific case before him concerned a woman who was threatened with permanent deafness if she went through with the pregnancy. Uziel decides that since the fetus is not an independent nefesh but is only part of the mother, there is no sin in destroying it for her sake.

Contemporary American Reform Responsa

16. WHEN IS ABORTION PERMITTED?

January 1985

https://www.ccarnet.org/ccar-responsa/carr-23-27/

We agree with the traditional authorities that abortions should be approached cautiously throughout the life of the fetus. Most authorities would be least hesitant during the first forty days of the fetus’ life (Yeb. 69b; Nid. 30b; M. Ker. 1.1; Shulhan Arukh Hoshen Mishpat, 210.2; Solomon Skola, Bet Shelomo, Hoshen Mishpat 132; Joseph Trani, Responsa Maharit, 1.99; Weinberg, Noam, 9, pp. 213 ff, etc.) Even the strict Unterman permits non-Jews to perform abortions within the forty day periods (Unterman, op. cit., pp. 8 ff).

From forty days until twenty-seven weeks, the fetus possesses some status, but its future remains doubtful (goses biydei adam; San. 78a; Nid. 44b and commentaries) as we are not sure of its viability. We must, therefore, be more certain of our grounds for abortion, but would still permit it.

It is clear from all of this that traditional authorities would be most lenient with abortions within the first forty days. After that time, there is a difference of opinion. Those who are within the broadest range of permissibility permit abortion at any time before birth, if there is a serious danger to the health of the mother or the child. We would be in agreement with that liberal stance. We do not encourage abortion, nor favor it for trivial reasons, or sanction it “on demand.”

Birth Control

CCAR RESPONSA

American Reform Responsa

156. Birth Control

(Vol. XXXVII, 1927, pp. 369-384)

[excerpts]

Some rabbis are inclined to regard all forms of birth-control, excepting self-control or continence, as Hotsa-at shichvat zera levatala, ["spilling seed"] and therefore put them in a class with masturbation or self-abuse. Hence, they believe that by citing Agadic [legend/story] sayings from the Talmudand the Midrashim against the evil practice of self-abuse, they have also proved the opposition of Rabbinic law to the various forms of birth control. Such a method, however, is unscientific and not justified in the discussion of such a serious and important question.

In order to avoid confusion and for the sake of a clearer understanding and a systematic presentation of the Rabbinic teachings bearing upon our subject, it is necessary to formulate the question properly. It seems to me that the correct formulation of our question is as follows: Does the Talmudic-Rabbinic law permit cohabitation between husband and wife in such a manner or under such conditions as would make conception impossible; and if so, what are the conditions under which such cohabitation is permitted?

(CCAR)

From the Conservative Movement's Responsum Miriam Berkowitz and Mark Popovsky, "Contraception" EH 5:12.2010

When the seminal emission is internal, even though procreation may be impossible for other reasons, זרע השחתת ["spilling of seed"] does not apply. Asheiri [The Rosh] explicitly refers to intercourse which the introduction of a contraceptive method has rendered nonprocreative as הארץ כל כדרך משמשת היא―normal intercourse. Of course, when we discuss modern contraceptive methods, we will see that some specific means of preventing pregnancy today–namely barrier methods—may be analogous to an external seminal emission and therefore much closer to זרע השחתת ["spilling of seed"] .The key point at this stage of our argument is that intercourse with the use of contraception does not by definition fall within the bounds of the prohibition as long as the emission is internal.

Again, according to Rashi, (Yevamot 100b [same principle as in 12b]) the phrase “Meshameshot bemoch” means that in these three conditions women are allowed to use this contraceptive. This would imply that other women who do not expose themselves or their children to danger by another pregnancy are forbidden to do so. According to R. Tam (Tosafot Ketubot 39a, s.v. “Shalosh nashim”), Asheri and R. Nissim (on Nedarim 35b) the phrase “Meshameshot bemoch” means “tserichot” [has to/must] or as R. Nissim puts it “chayavot,” [obligated to] that is, that these three women–because of the danger of possible harm which might result from pregnancy–are obliged to use this precaution. If we interpret the phrase in this sense, it would imply that other women–not threatened by any danger from pregnancy–are merely not obliged to use this precaution against conception, but are not forbidden to do so. (CCAR)

The Talmudic law even permits a woman to sterilize herself permanently. And the wife of the famous R. Hiyya is reported to have taken such a medicine which made her sterile (Yevamot 65b).

Whether there be such a drug according to modern medicine or not, is not our concern. The Rabbis believed that there was such a drug which, if taken internally, makes a person sterile (see Shabbat 110a,b and Preuss, op. cit., pp. 439-440 and 479-480), and they permitted the woman to take it and become sterile.

According to Lurya (op. cit., Yevamot IV.44), this permission is given to a woman who experiences great pain of childbirth, which she wishes to escape, as was the case of the wife of R. Hiyya. Even more so, says Lurya, is this permitted to a woman whose children are morally corrupt and of bad character, and who fears to bring into the world other moral delinquents. To these I would add the woman who, because of hereditary disease with which she or her husband is afflicted, fears to have children who might be born with these diseases and suffer and be a burden to their family or to society. (CCAR)

But–and this is peculiar to the Jewish point of view on this question–the man who practices absolute self-restraint or total abstinence is also guilty of the same sin of omission, for he likewise fails to fulfill the duty of propagation of the race. No distinction can be made, according to Jewish law, between the two ways of avoiding the duty of begetting children, whether by total abstention from sexual intercourse or by being careful not to have intercourse in such a manner as would result in conception. (CCAR)

Since, as we have seen, the act of having intercourse with one’s wife in a manner not resulting in conception is in itself not against the law, there can be no difference between the failure to fulfill the commandment of propagation of the race by abstaining altogether from marriage and the failure to fulfill the commandment by practicing birth control. The considerations that permit the one permit also the other. It would even seem that the other–i.e., the practice of birth control–should be preferred to the one of total abstention. For, in granting permission to practice the latter, the Rabbis make the proviso that the man be so constituted, or so deeply engrossed in his work, as not to be troubled by his sexual desires or to be strong enough to withstand temptation (“Vehu shelo yehe yitsro mitgaber alav,” Maimonides and Shulchan Aruch, l.c.).

Now, if a man is so constituted that he is troubled by his desires and suffers from the lack of their gratification, and yet is engaged in some noble and moral pursuit (like the study of the Torah) which hinders him from taking on the responsibilities of a family, he may marry and avoid having children. He may say with Ben Azzai, “I am very much attached to my work and cannot afford to have a family to take care of. The propagation of the race can and will be carried on by others” (“Efshar la-olam sheyitkayem al yedei acherim,” Yevamot 36b; Tosefta, ibid., VIII, end).

For the Rabbis also teach that “it is better to marry,” even if not for the sake of having children, than “to burn” with passion and ungratified desires. And, as we have seen above, the Rabbinic law permits marriage even when it must result in failure to fulfill the commandment “Be fruitful and multiply,” as when a young man marries an old or sterile woman.

The Rabbis did not teach total abstention. They did not agree with Paul that “It is good for a man not to touch a woman” (I Corinthians VII:l). While the institution of marriage may have for its main purpose the propagation of the race, this is not its sole and exclusive purpose. And the Rabbis urge and recommend marriage as such without regard to this purpose, or even under conditions when this purpose cannot be achieved. The companionship or mutual helpfulness in leading a pure, good, and useful life, achieved by a true marriage, is also a noble purpose worthy of this divine institution. (CCAR)

CCAR RESPONSA

Contemporary American Reform Responsa

1984

198. Vasectomy

QUESTION: A young couple, with three children and a fourth on the way, has asked about the Jewish view on vasectomy as a means of contraception. They have been married for five years, have tried all other methods, and rejected them either as painful, dangerous or inconvenient. Does Reform Judaism agree with the halakhic restrictions on sterilization? (Rabbi B. Lefkowitz, Taunton, MA)

ANSWER: As you have stated, the halakhah prohibits sterilization based upon the verse in Leviticus (22.24), which was subsequently discussed in the Talmud (San. 70a; Kid. 25b; Hag. 14b, 13; Shab. 110b ff); these sources prohibit the castration of male human beings as well as animals. Vasectomy is somewhat different, but the intent of removing the reproductive capacity permanently is the same. Rabbinic discussions on this matter continue and explicitly prohibit all forms of male sterilization (Yad Hil. Issurei Biah 16; Shulhan Arukh Even Haezer 5). The more recent commentaries and responsa agree (Hatam Sofer, Even Haezer #20; Noam, VoI. 1, pp. 257 ff; Otzar HaposqimEven Haezer, Vol. 1, #68 ff).

While we disagree with tradition on matters of temporary birth control and are more permissive than many of the traditional authorities, we would agree with tradition on this prohibition against permanent sterilization. This is an irreversible act, and should not be undertaken. There are other methods of birth control which are safe and which are sanctioned by us and also by the more liberal Orthodox authorities.

Pregnancy