Artificial Insemination: A Religious Perspective

Jeremiah R. Grosse
January 5, 2011
Reproduced with Permission

Artificial insemination is the instrumental deposition of semen into the female genital tract without sexual intercourse. There are two types of insemination, and they are frequently referred to by their abbreviations which are, respectively, A.I.H. (artificial insemination, husband) and A.I.D. (artificial insemination, donor). One can use a mixture of semen obtained from husband and donor. Results of artificial insemination employing the husband's semen are good if the indication for the procedure is an anatomical defect, but fair to poor if there is moderate infertility in the male. Women can conceive two or more times from donor insemination.1

These days there is much writing - books, articles, reviews, and monographs - in the medical and lay press, concerning this subject from the moral, legal, religious, medical, psychological, sociological, genetic and other standpoints.2 From the standpoint of many couples, the begetting of children is understood as almost a right of marriage. There is Biblical evidence, from a Jewish perspective, that barrenness is understood to be a source of shame for a couple, particularly on the part of the mother. Sarah, Abraham's wife, was barren until she was in her nineties before giving birth to Isaac and Jacob's wife, Rachel, told her husband, "Give me children or I will die!" (Gen. 30:1) She eventually gave birth to two sons, Joseph and Benjamin.

The truth is that childbearing is not a right. Many couples struggle for years to get pregnant and some will eventually turn to artificial means of reproduction even if such means might be contrary to their religious beliefs. Both the Catholic Church and Jewish tradition have their own teachings with regard to this topic. I intend to examine the teachings of both traditions so that the reader can understand why these two religions believe what they do and hopefully assist those couples who are struggling with childbearing to clearly understand what their faith tradition teaches and thereby make a proper moral decision in keeping with that tradition.

The first Roman Catholic pronouncement on this problem was made by the Holy Office (now known as the Congregation for the Doctrine of the Faith) in 1897. This has been followed by innumerable discussions and rulings in the many books and periodicals on Catholic moral philosophy and medical ethics. These make it clear that A.I.D. is definitely immoral, "because it is a violation of natural law which limits the right to generate to married people, and which demands that right be to be exercised personally and not by proxy."3 In regard to A.I.H.; however, Catholic opinions vary. The margin of difference is being narrowed by a tendency among Catholic moral theologians in recent years to favor a stricter view which considers every form of artificial insemination as intrinsically unlawful except "assisted insemination in the widest sense", i.e. if it is applied after normal intercourse between husband and wife as an aid to the natural process, for instance, by forcing the semen, through artificial means, into the wife's tract which it should have entered through the natural act, but was unable to enter owning to some natural impediment. There is practical unanimity among Catholic moral theologians that the husband may not procure the semen, either for medical examination or for artificial insemination into his wife, by any method which involves masturbation or other forms of coitus interruptus.4

The Catechism of the Catholic Church states, "Techniques that entail the dissociation of husband and wife by the intrusion of a person other than the couple (donation of sperm or ovum surrogate uterus) are gravely immoral. These techniques (heterologous artificial insemination and fertilization) infringe the child's right to be born of a father and mother known to him and bound to each other by marriage. They betray the spouse's 'right to become a father and a mother only through each other'".5

Since the 1920s the issue of artificial insemination has been treated extensive in rabbinical quarters. Since Jewish law is based entirely on ancient authority and precedent, its treatment of such an altogether novel subject as artificial insemination may well serve as a classic example for the rabbinic method of applying old principles to new circumstances.

The first precedent found by the rabbis in this case represents a remarkable anticipation of one of the main factors involved in artificial insemination, some 1700 years before scientific research made its application in all but accidental cases possible. This occurs in a Talmudic discussion on whether a high priest is permitted to marry a virgin who is pregnant, notwithstanding the Biblical insistence on her absolute virginity. The answer given is in the affirmative, and the circumstances of her pregnancy are explained as to impregnation through water in which she had bathed and which was previously fertilized by a male. The possibility of such generation sine concubito was apparently not known to the Greeks of other nations of antiquity, and Jewish literature is certainly the first to refer to this recognition in a legal context.

A second important precedent is contained in the late Midrash (Biblical commentaries provided by the rabbis) which is repeated in several medieval works, both historical and legal. It mentions the belief that Ben Sira was conceived in this way, the father having been the prophet Jeremiah and the mother, according to some sources, the prophet's own daughter. This Midrash, incidentally, is also quoted as a "legend of the rabbis" by the famous sixteenth century physician, Amatus Lusitanus, to clear a nun from the suspicion of fornication after a miscarriage.6

The third source commonly quoted is the comment of Rabbi Peretz ben Elijah of Cobeil in his work Hagebot 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 an menstruating woman] since there is not forbidden intercourse, [so] the child is completely legitimate [kasheir] 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.7

Whether a woman can, in fact, be impregnated by sperm on a sheet (presumably, shortly after the man left the bed), Rabbi Peretz clearly believes that she can, and thus we have another source within the tradition which contemplates insemination without sexual intercourse.8

One major issue raised by Jewish tradition in regard to A.I.D. is genetic paternity. The prevalent Halakhic (legal) position holds to the notion of parenthood as a natural given. Paternity is defined biologically: the father is he whose sperm was employed for fertilization. This position is, by no means, confined to rulings regarding artificial insemination: rather, it is reflected in the broad traditional emphasis on lineage (yihus). A man's inherited status as kohen (priest), for example, is passed down from father to genetic son, and is not conferred on a boy adopted by a kohen. Moreover, the Jewish identity of individuals is itself generally transmitted from parents to children. The prospect of a blurred biological paternity in A.I.D. thus gives rise to much concern.9

Rabbi Eliezer Waldenberg writes:

Our Sages forbid bringing about the birth of children whose father is unknown, both because of the requirement that the seed of Israel know their lineage - for otherwise the Shekhinah (Divine Presence) does not dwell upon them - and because of the grievous possibility that this might lead to a situation where a brother marries his paternal [half] sister…

It is estimated that one man alone can under circumstances sire four hundred children a week, or twenty thousand children over the course of a year! In this shocking situation, ought we not fear that one might very likely come to marry his paternal sister? Then the earth would be filled, Heaven forbid, with depravity.10

According to some Jewish legal scholars, A.I.D. performed on a married woman could be considered adultery. One traditional understanding teaches, the prohibition of adultery is expressly meant to prevent X's wife from bearing Y's child. Moses Nahmanides (1194-1270) commenting on one of the Biblical verses prohibiting adultery (Lev. 18:20), writes: "Perhaps the Torah says 'for seed' to indicate the reason for the prohibition, for [otherwise] it would not be known of whom the seed is." This leads to a double concern regarding A.I.D.. The practice itself might constitute a kind of adultery, and consequently the child might be stigmatized as illegitimate (mamzer= one born of adultery or incest).

Rabbi Waldenberg's position is that A.I.D. is essentially adulterous, although legally it falls short of being adultery proper. This somewhat complex position is reflected in the dialectical course of his analysis. At the outset, he cites certain earlier rabbis, who considered a married woman receiving A.I.D. as an adulteress, and suggested that her child's status thereby also comes under a cloud. Against these extreme rulings, Waldenberg asserts that the formal categories of adultery and illegitimacy, along with the severe sanctions they entail, do not apply to A.I.D.. There can be no adultery without illicit sexual relations.11

Nevertheless, his ensuing discussion reveals that beyond the letter of the law, he actually endorses the value judgment behind this same extreme position. Formally, it is true, there is no adultery and therefore no illegitimacy; but in terms of underlying value and principles, A.I.D. clearly involves iniquitous sin, which is vigorously denounced:

The very essence of this matter - namely, placing into the womb of a married woman the seed of another man - is a great abomination in the tents of Jacob, and there is no greater desecration of the family in the dwelling places of Israel. This destroys all the sublime concepts of purity and holiness of Jewish family life, for which our people have been so noted since we became a nation.12

The Book of Genesis tells the story of Reuben, Jacob's first born son, and his sexual relationship with Bilhah, Jacob's concubine and mother of Dan and Naphtali, Reuben's half-brothers. (Gen. 35:21-22) While this story deals with the topic of incest, the principle stated above is very much at play here as well. Reuben's act served to undermine Jacob's family structure and brought shame upon his father.

It is instructive to note how the biological conception of parenthood, with a peculiarly patriarchal twist, is given normative force. The wife seems willing to endorse a non-naturalistic norm of parenthood. The child will be biologically related to her but not to her husband; yet she is inviting him to jointly raise the child. The husband will; however, naturally find it hard to experience love toward the stranger's child developing within his wife's own body. A.I.D. is described here as the wife's unilateral initiative. The husband's "consent" is therefore perceived as reluctant capitulation, which will surely be insufficient to overcome the alienation he must feel toward the child from the very beginning.13

Rabbi Moses Feinstein, the major spokesman for the position permitting A.I.D., also starts from a conception of biological paternity. Although he shares the Halakhic postulate that the father is the donor, he sees nothing fundamentally wrong with X's wife bearing Y's child. A woman's marital commitment involves sexual fidelity only, not restriction of her reproductive capacity. Feinstein considers it to be wholly within the wife's rights. He cites with strong disagreement a position akin to Waldenberg's:

The statement…that "Heaven forbid that a daughter of Israel should abandon herself to the artificial adultery by the physicians" is mere rhetoric, for this has no connection to adultery whatever.14

The term 'artificial adultery' reflects the view that A.I.D. for a married woman constitutes substantive infidelity to her husband. The artificial mode of this 'adultery', that is, lack of sexual intercourse, may mitigate against applying the severest sanctions, but it cannot obscure the abhorrent character of the deed: "Heaven forbid that she should abandon herself…"

Feinstein argues that A.I.D. "has no connection to adultery whatever." Even when stipulating a requirement for the husband's consent, he is careful to ground it exclusively in the indirect effects upon what he takes to be a spouse's legitimate interests.

His approach is expressed even more clearly in his attitude toward A.I.D. with the husband's consent. Such consent is not viewed as given grudgingly, a surrender to the wife's obstinacy, but as true participation. For crucial to Feinstein's lenient ruling is the consideration for the infertile couple's plight, "in a situation of great distress, when they are very much pained in their desire for a child". Indeed, the plural pronoun reflects a perception of the husband's relation to the perspective child quite distinct from that warranted by the purely biological definition of paternity. Legally it is the donor who is the child's father, and yet the husband significantly regards it as his own as fulfilling the desire for a child shared with his wife.15

Still, the legal affirmation of biological paternity combined with donor anonymity continues to raise the specter of marriage between unsuspecting half siblings. Here Feinstein takes a further step away from strict biological parenthood. Presuming the donor to be non-Jewish, his solution utilizes the general Halakhic ruling which refuses to recognize paternity in mixed procreation: where only one of the parents is Jewish, traditional Halakah regards the child as having only one mother. Thus the children of two Jewish women inseminated by sperm from the same non-Jewish donor are not legally siblings.16

What does Judaism teach with regard to A.I.H.? 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.

The only issue is the means by which the husband's sperm is obtained. To ensure that there is no "destruction of the seed in vain", some rabbis advocate collecting it from the vaginal cavity after intercourse, but an obstetrician whom I consulted - who has many observant Orthodox and Conservative patients - told me that collecting sperm in that way is simply "unrealistic". Moreover, the vaginal pH kills the sperm, since it is more acidic than cervical mucus. Consequently, rabbis have permitted using a condom to collect the semen for A.I.H. (clearly, one without spermicide). Some of these rabbis insist that the condom have a small hole so that there is still some chance of conception through the couple's intercourse. While I have no particular objection to such stringencies, it does seem to me that they are unnecessary, for producing semen for the specific purpose of procreating cannot plausibly be called wasting it. Indeed, some Orthodox rabbis follow the same line of reasoning and permit a man to masturbate to produce semen for artificial insemination of his wife. We should adopt this latter approach.17

In the same spirit, Rabbi Morris Shapiro has argued that where the husband is the donor, he should be credited with fulfilling the mitzvah of procreation, for the mitzvah is to produce two viable children for which both intercourse and artificial insemination are merely preparations. This severs the command to procreate from the method of conception, interpreting the command to procreate instead as a matter of the couple's intent to produce children and their success in doing so. Despite this separation of procreation from sexual intercourse and the emotional bonding that commonly accompanies it, I would agree with Rabbi Shapiro for three reasons: 1) The sperm involved is the husband's, in any case, and the child is therefore the husband's, according to all understanding of Jewish law. 2) The husband, by hypothesis, cannot fulfill the commandment in any other way. By virtue of going through the expense and trouble of artificial insemination, though, he has demonstrated clearly that he wants to obey the commandment, and the Talmud says that God attributes the merit of fulfilling a commandment if one tries to do so but cannot. 3) The husband generally goes through considerable humiliation, pain, and perhaps depression in coming to terms with his inability to impregnate his wife through sexual intercourse, and therefore we should do all we can to augment his satisfaction with the whole procedure so that he does not forever associate his new child with his own frustration in the process of conceiving him or her - a result that is as important for the child as it is for the man.18

While there is no denying the fact that the Catholic Church's position regarding artificial insemination is different from Jewish tradition, the fact is, as we saw, that even within Judaism there is a varying of opinion. This is particularly true with regard to the practice of artificial insemination by a donor.

The anguish experienced by a couple who is unable to get pregnant cannot and must not be either dismissed or diminished in any way. The bearing of children is one of the premier fruits of marriage and for many, particularly those who do not believe in life after death, that they will be able to live on in their children long after they have died. These are powerful and important motivations for couples who begin to examine the various options available to them in the area of reproduction.

Even though I would not condone the use of artificial insemination by a couple who might come to me for advice, I do believe it is important that they know all of the facts regarding this procedure and examine the moral issues so that they can make an informed decision and perhaps determine that based upon the moral objections being raised that adoption would be a much better option for them.


End Notes

1 D.P. Murphy and E.F. Torrano "The Day of Conception: A Study of 48 Women Having 2 or More Conceptions by Donor Insemination" Fertility and Sterility 14:410-415, 1963 [Back]

2 "Artificial Insemination in Jewish Law" by Fred Rosner in Jewish Bioethics (ed. by Fred Rosner and J. David Bleich) NJ: KTAV Publishing House, 2000, p. 125 [Back]

3 Immanuel Jakobovits Jewish Medical Ethics (NY: Bloch Publishing Co., 1975), p. 245 [Back]

4 Jakobovits, p. 245 [Back]

5 Catechism of the Catholic Church (NY: William H. Sadler, Inc., 1994) #2376 [Back]

6 Jakobovits, p. 246 [Back]

7 Quoted by Rabbi Joel Sirkes Bayit Hadash (Bab) on the Tur, Y.D. 195 [Back]

8 "Artificial Insemination: General Considerations and Insemination Using the Husband's Sperm" by Elliot N. Dorff in Life and Death Responsibilities in Jewish Biomedical Ethics (ed. by Aaron L. Mackler) NY: Jewish Theological Seminary, 2000, p. 23 [Back]

9 Noam J. Zohar Alternatives in Jewish Bioethics (NY: SUNY Press, 1997), p. 72 [Back]

10 Tsits Eliezer, IX, 51, iv, ii, 1: pp. 246-247 [Back]

11 Zohar, p. 73 [Back]

12 Zohar, p. 74 [Back]

13 Zohar, p. 75 [Back]

14 Iggerot Moshe, Even ha-'Ezer 71 [Back]

15 Zohar, p. 77 [Back]

16 Zohar, p. 77 [Back]

17 Dorff, p. 29 [Back]

18 Dorff, p. 30 [Back]


Bibliography

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