וַיְבָ֣רֶךְ אֹתָם֮ אֱלֹהִים֒ וַיֹּ֨אמֶר לָהֶ֜ם אֱלֹהִ֗ים פְּר֥וּ וּרְב֛וּ וּמִלְא֥וּ אֶת־הָאָ֖רֶץ וְכִבְשֻׁ֑הָ וּרְד֞וּ בִּדְגַ֤ת הַיָּם֙ וּבְע֣וֹף הַשָּׁמַ֔יִם וּבְכׇל־חַיָּ֖ה הָֽרֹמֶ֥שֶׂת עַל־הָאָֽרֶץ׃
God blessed them and God said to them, “Be fertile and increase, fill the earth and master it; and rule the fish of the sea, the birds of the sky, and all the living things that creep on earth.”
An infertile Jewish couple has asked the following questions: Which, if any, of the new developments in reproductive technology does Jewish law require us to try? Which may we try? Which, if any, does Jewish law forbid us to try? If we are not able to conceive, how does Jewish law view adoption?
Couples who cannot have children are no longer obligated to fulfill the commandment to propagate, for commandments make logical and legal sense only when the one commanded has the ability to obey.
Because the woman's own health is not threatened by her infertility, and because, in any case, she is not subject to the command to procreate, she is not at all required by Jewish law to use such drugs. It is an option she has, an option she can choose to act on or refuse with the full endorsement of Jewish law for either choice.
Traditional Sources on Non-sexual Insemination
Ben Zoma was asked: "May a high priest who, according to Lev. 21:13, must marry a virgin] marry a maiden who has become pregnant [yet who claims she is still a virgin]? Do we take into consideration Samuel's statement, for Samuel said: 'I can have repeated sexual connections without [causing] bleeding [i.e., without the woman losing her virginity],' or is the case of Samuel rare?" He replied: "The case of Samuel is rare, but we do consider [the possibility] that she may have conceived in a bath [into which a male has discharged semen, and therefore she may marry a high priest]:"' [Talmud]
Ben Zoma was asked: "May a high priest who, according to Lev. 21:13, must marry a virgin] marry a maiden who has become pregnant [yet who claims she is still a virgin]? Do we take into consideration Samuel's statement, for Samuel said: 'I can have repeated sexual connections without [causing] bleeding [i.e., without the woman losing her virginity],' or is the case of Samuel rare?" He replied: "The case of Samuel is rare, but we do consider [the possibility] that she may have conceived in a bath [into which a male has discharged semen, and therefore she may marry a high priest]:"' [Talmud]
However implausible conception by these means may seem to moderns, this talmudic source clearly contemplates the possibility of conception without sexual intercourse
Rabbi Perez ben Elijah of Corbeil in his work Haggahot Semak, who states:
A woman may lie on her husband's sheets but should be careful not to lie on sheets upon which another man slept lest she become impregnated from his sperm. Why are we not afraid that she become pregnant from her husband's sperm and the child will be conceived of a menstruating woman [niddah]? The answer is that [we are not concerned about the child being the progeny of a menstruating woman since there is no forbidden intercourse, the child is completely legitimate [kasher] even from the sperm of another, just as Ben Sira was legitimate. However, we are concerned about the sperm of another man because the child may eventually marry his sister.
A woman may lie on her husband's sheets but should be careful not to lie on sheets upon which another man slept lest she become impregnated from his sperm. Why are we not afraid that she become pregnant from her husband's sperm and the child will be conceived of a menstruating woman [niddah]? The answer is that [we are not concerned about the child being the progeny of a menstruating woman since there is no forbidden intercourse, the child is completely legitimate [kasher] even from the sperm of another, just as Ben Sira was legitimate. However, we are concerned about the sperm of another man because the child may eventually marry his sister.
Is Artificial Insemination Akin to Adultery?
(כ) וְאֶל־אֵ֙שֶׁת֙ עֲמִֽיתְךָ֔ לֹא־תִתֵּ֥ן שְׁכׇבְתְּךָ֖ לְזָ֑רַע לְטׇמְאָה־בָֽהּ׃
(20) Do not have carnal relations with your neighbor’s wife and defile yourself with her.
ואל אשת עמיתך לא תתן שכבתך לזרע אמר ר"א (אבן עזרא על ויקרא י״ח:כ׳) כי המשגל לשלשה חלקים נחלק האחד לפריה ורביה והשני להקל מלחות הגוף והשלישי לתאוה הנמשלת לתאות הבהמות ואמר הכתוב "לזרע" וטעמו אפילו לזרע והנה היא אסורה לגמרי ואפשר שאמר "לזרע" להזכיר טעם האיסור כי לא יודע הזרע למי הוא ויבאו מזה תועבות גדולות ורעות לשניהם ולא הזכיר זה בעונש (ויקרא כ׳:י״ח) כי אפילו הערה בה ולא הוציא זרע יתחייב ולכך אמר בסוטה (במדבר ה יג) ושכב איש אותה שכבת זרע כי בעבור הזרע תהיה קנאתו וכן בשפחה חרופה (ויקרא י״ט:כ׳) הזכיר שכבת זרע כי האסור בעבור שיוליד זרע מן השפחה והנכון בעיני כי בעבור היות אשת עמיתו אסורה לו לגמרי לא ינקה כל הנוגע בה (משלי י כט) הוצרך לומר "לזרע" שאם אמר "לא תתן שכבתך" בלבד היה נראה שיזהיר אפילו השוכב עמה לחבק ולנשק וכאן בחייבי כריתות יזהיר על כן הוצרך להזכיר שכיבה לזרע לפרש כי במשגל יזהיר והוא הטעם בשפחה חרופה שהיא כאשת איש וכן יאמר באשת איש (ויקרא כ׳:י׳) אשר ינאף את אשת רעהו ולא אמר ישכב כי לא בשכיבה לבד יזהיר ולא אמר בכאן "לגלות ערותה" כי לא יזכיר כן רק בשאר הבשר ובנדה ושהאסור בהן בעבור הגלוי כמו שאמר (שם פסוק יט) כי את שארו הערה ורבותינו דרשו באשת איש למעט משמש באבר מת ואמרו בשפחה חרופה שאינו חייב אלא בגומר ביאתו כמו שמפורש ביבמות (נה):
AND THOU SHALT NOT LIE CARNALLY WITH THY NEIGHBOR’S WIFE. Rabbi Abraham ibn Ezra commented: “For there is a threefold purpose to sexual intercourse: one is to beget children, a second is to relieve the body of its fluids, and the third is for passion, which is likened to that of the animals. Now when Scripture said l’zara, it means ‘even l’zara’ [i.e., even for the purpose of begetting children], and thus it prohibited [having intercourse with another man’s wife] altogether.” It is possible that He said l’zara in order to mention the reason for the prohibition, since it will not be known to whom “the child” belongs, and as a result, great and wicked abominations might be done by both.
On this basis, Rabbi Yoel Teitelbaum rules that donor insemination is biblically prohibited, for it is like adultery in that the identity of the donor is usually unknown and because D.I. establishes a genetic relationship between the biological father and the child which, had there been intercourse, would have been categorized as an act of adultery. Rabbi Eliezer Waldenberg goes even further: he uses Nahmanides' interpretation as forbidding the very act of injecting a donor's semen into a married woman's womb as an act of adultery, regardless of the absence of sexual contact involved.'''
Talmud, Maimonides, Rabbi David Halevi (the "Taz"), and the majority of recent authorities have already maintained that adultery takes place only when the penis of the man enters the vaginal cavity of the woman. That is clearly not the case when insemination takes place artificially.
The lack of contact of the genital organs in donor insemination, then, means that it does not legally constitute adultery, and the child conceived by D.I. is legitimate and does not suffer from the liabilities of an illegitimate child.
The intent to have an illicit relationship is also absent.
The lack of contact of the genital organs in donor insemination, then, means that it does not legally constitute adultery, and the child conceived by D.I. is legitimate and does not suffer from the liabilities of an illegitimate child.
The intent to have an illicit relationship is also absent.
Rabbinic Responses to Artificial Insemination
When the semen of a man is united artificially with his wife's, ovum, most rabbis who have written on the subject have not objected.'" Because of Judaism's appreciation of medicine as an aid to God, there is no abhorrence of such means merely because they are artificial.
When the semen of a man is united artificially with his wife's, ovum, most rabbis who have written on the subject have not objected.'" Because of Judaism's appreciation of medicine as an aid to God, there is no abhorrence of such means merely because they are artificial.
- Should the donor be credited with fulfilling the mitzvah of procreation?
- Is the sperm donor considered the father?
According to the biblical law of levirate marriage, when a man dies childless, it is the duty of his brother to have conjugal relations with the deceased man's widow so that a child might be born bearing the parentage of the deceased brother. That precedent would argue that the semen donor is not the father.
Midrash
An orphaned girl grew up with a guardian [apotropos], and he was a good and faithful man who raised her and watched over her as is fitting. He wanted to marry her off, and the scribe came to write her marriage contract. He said to her: "What is your name?" She said: "So-and-so." lie said to her: ""And what is the name of your father?" She began to be silent. Her guardian said to her: "Why are you silent?" She said to him: "Because I know no father except you," for the one who raises [a child] is called father and not the one who begets...
: "Master of the world, the one who raises [a child] is the father and not the one who begets [him/her]," for it says, "For You are our father, for we have not known Abraham" (Isa. 63:16).
An orphaned girl grew up with a guardian [apotropos], and he was a good and faithful man who raised her and watched over her as is fitting. He wanted to marry her off, and the scribe came to write her marriage contract. He said to her: "What is your name?" She said: "So-and-so." lie said to her: ""And what is the name of your father?" She began to be silent. Her guardian said to her: "Why are you silent?" She said to him: "Because I know no father except you," for the one who raises [a child] is called father and not the one who begets...
: "Master of the world, the one who raises [a child] is the father and not the one who begets [him/her]," for it says, "For You are our father, for we have not known Abraham" (Isa. 63:16).
Furthermore, the fact that the semen donor never intended to raise the child makes him somewhat like the gentile who renounces the idolatrous status of a given idol and thereby converts it into a mere statue;"' similarly - although obviously with no implications whatsoever that a child is an idol! - the donor's explicit intention to have someone else raise the child might, it could be argued, amount to a renunciation of his status of fatherhood and a transfer of it to the social father.
Adoption/Status of Fatherhood
(א) וַיְהִ֗י אַחֲרֵי֙ הַדְּבָרִ֣ים הָאֵ֔לֶּה וַיֹּ֣אמֶר לְיוֹסֵ֔ף הִנֵּ֥ה אָבִ֖יךָ חֹלֶ֑ה וַיִּקַּ֞ח אֶת־שְׁנֵ֤י בָנָיו֙ עִמּ֔וֹ אֶת־מְנַשֶּׁ֖ה וְאֶת־אֶפְרָֽיִם׃ (ב) וַיַּגֵּ֣ד לְיַעֲקֹ֔ב וַיֹּ֕אמֶר הִנֵּ֛ה בִּנְךָ֥ יוֹסֵ֖ף בָּ֣א אֵלֶ֑יךָ וַיִּתְחַזֵּק֙ יִשְׂרָאֵ֔ל וַיֵּ֖שֶׁב עַל־הַמִּטָּֽה׃ (ג) וַיֹּ֤אמֶר יַעֲקֹב֙ אֶל־יוֹסֵ֔ף אֵ֥ל שַׁדַּ֛י נִרְאָֽה־אֵלַ֥י בְּל֖וּז בְּאֶ֣רֶץ כְּנָ֑עַן וַיְבָ֖רֶךְ אֹתִֽי׃ (ד) וַיֹּ֣אמֶר אֵלַ֗י הִנְנִ֤י מַפְרְךָ֙ וְהִרְבִּיתִ֔ךָ וּנְתַתִּ֖יךָ לִקְהַ֣ל עַמִּ֑ים וְנָ֨תַתִּ֜י אֶת־הָאָ֧רֶץ הַזֹּ֛את לְזַרְעֲךָ֥ אַחֲרֶ֖יךָ אֲחֻזַּ֥ת עוֹלָֽם׃ (ה) וְעַתָּ֡ה שְׁנֵֽי־בָנֶ֩יךָ֩ הַנּוֹלָדִ֨ים לְךָ֜ בְּאֶ֣רֶץ מִצְרַ֗יִם עַד־בֹּאִ֥י אֵלֶ֛יךָ מִצְרַ֖יְמָה לִי־הֵ֑ם אֶפְרַ֙יִם֙ וּמְנַשֶּׁ֔ה כִּרְאוּבֵ֥ן וְשִׁמְע֖וֹן יִֽהְיוּ־לִֽי׃ (ו) וּמוֹלַדְתְּךָ֛ אֲשֶׁר־הוֹלַ֥דְתָּ אַחֲרֵיהֶ֖ם לְךָ֣ יִהְי֑וּ עַ֣ל שֵׁ֧ם אֲחֵיהֶ֛ם יִקָּרְא֖וּ בְּנַחֲלָתָֽם׃ (ז) וַאֲנִ֣י ׀ בְּבֹאִ֣י מִפַּדָּ֗ן מֵ֩תָה֩ עָלַ֨י רָחֵ֜ל בְּאֶ֤רֶץ כְּנַ֙עַן֙ בַּדֶּ֔רֶךְ בְּע֥וֹד כִּבְרַת־אֶ֖רֶץ לָבֹ֣א אֶפְרָ֑תָה וָאֶקְבְּרֶ֤הָ שָּׁם֙ בְּדֶ֣רֶךְ אֶפְרָ֔ת הִ֖וא בֵּ֥ית לָֽחֶם׃
(1) Some time afterward, Joseph was told, “Your father is ill.” So he took with him his two sons, Manasseh and Ephraim. (2) When Jacob was told, “Your son Joseph has come to see you,” Israel summoned his strength and sat up in bed. (3) And Jacob said to Joseph, “El Shaddai, who appeared to me at Luz in the land of Canaan, blessed me— (4) and said to me, ‘I will make you fertile and numerous, making of you a community of peoples; and I will assign this land to your offspring to come for an everlasting possession.’ (5) Now, your two sons, who were born to you in the land of Egypt before I came to you in Egypt, shall be mine; Ephraim and Manasseh shall be mine no less than Reuben and Simeon. (6) But progeny born to you after them shall be yours; they shall be recorded instead*instead Lit. “under the name.” of their brothers in their inheritance. (7) I [do this because], when I was returning from Paddan, Rachel died, to my sorrow, while I was journeying in the land of Canaan, when still some distance short of Ephrath; and I buried her there on the road to Ephrath”—now Bethlehem.
Jewish law generally awards privileges only to those who bear concomitant responsibilities and that would certainly suggest in this case that the man who raises the child, rather than the man who merely ejaculates, should merit the status of fulfilling the commandment of propagation.
Implications in Jewish Ritual and Law
Donor
The child's genetic heritage is that of the semen donor that motivates this ruling. That fact is important legally in two ways. First, Jewish law abhors incest, counting it among only three prohibitions which one may never violate, even at the cost of one's life." Aside from this legal and moral factor, we also have a medical concern, for we now know the genetic basis of family diseases imparted through consanguineous unions. For both these reasons, then, we must consider the semen donor to be the father for purposes of the commandment of propagation.
Donor
The child's genetic heritage is that of the semen donor that motivates this ruling. That fact is important legally in two ways. First, Jewish law abhors incest, counting it among only three prohibitions which one may never violate, even at the cost of one's life." Aside from this legal and moral factor, we also have a medical concern, for we now know the genetic basis of family diseases imparted through consanguineous unions. For both these reasons, then, we must consider the semen donor to be the father for purposes of the commandment of propagation.
Unintentional Incest in the Next Generation; knowing the identity of the sperm donor
If the donor is anonymous, there is also the possibility of unintentional incest in the next generation,
This issue is resolved in Jewish law if the donor is known and the children avoid his offspring as mates. It is also resolved if it is known that the donor is not Jewish, for Jewish law does not recognize family relationships among non-Jews through the father's line.
There is an independent commandment in Jewish law to maintain health. We therefore must be concerned about preventing progeny with serious genetic defects or diseases due to the consanguinity of the couple.
Disclosure of the identities of donors and recipients, then, is still preferable for the physical reasons described above and the psychological reasons delineated below, but the common practice of confidential donor insemination is permissible if the sperm bank keeps thorough records on all its donors and recipients and conscientiously updates them as necessary.
If the donor is anonymous, there is also the possibility of unintentional incest in the next generation,
This issue is resolved in Jewish law if the donor is known and the children avoid his offspring as mates. It is also resolved if it is known that the donor is not Jewish, for Jewish law does not recognize family relationships among non-Jews through the father's line.
There is an independent commandment in Jewish law to maintain health. We therefore must be concerned about preventing progeny with serious genetic defects or diseases due to the consanguinity of the couple.
Disclosure of the identities of donors and recipients, then, is still preferable for the physical reasons described above and the psychological reasons delineated below, but the common practice of confidential donor insemination is permissible if the sperm bank keeps thorough records on all its donors and recipients and conscientiously updates them as necessary.
Social Parent
The social father's name may be invoked when the child is being identified by his or her Hebrew name, as, for example, when called to the Torah.''
Similarly, children of donor insemination should consider themselves obligated to fulfill the Torah's commands to honor one's parents (Exod. 20:12; Dent. 5:16) and to respect them (Lev. 19:3) as applied to the social parents
Social parents should consider themselves responsible to fulfill the duties of the Torah and the Jewish tradition impose upon parents vis-a-vis their children.
The social father's name may be invoked when the child is being identified by his or her Hebrew name, as, for example, when called to the Torah.''
Similarly, children of donor insemination should consider themselves obligated to fulfill the Torah's commands to honor one's parents (Exod. 20:12; Dent. 5:16) and to respect them (Lev. 19:3) as applied to the social parents
Social parents should consider themselves responsible to fulfill the duties of the Torah and the Jewish tradition impose upon parents vis-a-vis their children.