CHAPTER FOUR

Grounding the Jewish Bioethical Discourse

Regarding Assisted Reproductive and Genetic Technologies In the United States, bioethical considerations of ART often begin with a discussion of rights, i.e. procreative liberty and the legal and especially women’s moral claims for assistance in reproduction.1 _{Several Supreme Court rulings have established}

the right not to procreate, whether through the use of contraception, or through the abortion of a pregnancy, due to the substantial burdens upon women of an unwanted pregnancy and child rearing, as well as concerns for personal privacy and the right to self-determination regarding one’s body.2 _{At the same time, until the arrival of ART, the}

United States government had little reason to interfere in or regulate procreative liberty, which is conceived of as a basic human dignity, although societies historically have tended to prefer marriage as the appropriate context through which to exercise this fundamental human right.3 _{With the advent of ART, numerous legal and moral questions}

have arisen regarding the right to procreate, including the welfare right to assistance in

1 _{See Hull 2005a, 1-53, who begins Ethical Issues in the New Reproductive Technologies precisely with the}

question of procreative liberty and its legal and moral claims. See also Brake and Millum 2013, who discuss procreative autonomy, including the philosophical claims for and against the negative right against interference and the positive right of assistance.

2 _{Griswold v. Connecticut, 381 U.S. 4.79 (1965); Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood} v. Danforth, 482 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979); and City of Akron v. Akron Reproductive Center, 103 S Ct 2481 (1983). See Hull 2005a, 18n2. Hull 2005a, 14-6, identifies six grounds

for which a person may potentially have a moral duty not to reproduce in light of the principles of beneficence and non-maleficence to the resultant child and the social good: 1. transmittable infectious or genetic disease; 2. unwillingness to provide proper pre-natal care; 3. inability to rear children; 4. likelihood of psychological harm to offspring; 5. overpopulation; 6. non-marriage.

3 _{Consider the “United Nations Declaration of Human Rights,” United Nations 1948, Article 16.1: “Men}

and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family.” One notable exception to procreative liberty in the United States is states’ right to involuntarily sterilize intellectually disabled (then called “mentally retarded”) persons, i.e., Buck v. Bell, 274 U.S. 200 (1927). For a brief history of Buck v. Bell, see Mukherjee 2016, 78-85. The coerced sterilization of criminals has similarly been proposed in legal arguments before the Supreme Court.

reproduction, i.e. health insurance coverage, professional medical assistance, and the availability of gamete providers or gestational carriers (Hull 2005a, 9-21).

In Jewish bioethics, with Judaism’s emphasis on covenantal duties, i.e. the mitzvot – divine commandments, considerations of ART begin not with a discussion of rights, but of responsibilities.4 _{The first commandment in the Torah is the charge to}

procreate: “Peru urevu – Be fruitful and multiply” (Genesis 1:28; 9:1). This opening chapter of Part II will ground the Jewish bioethical discourse by briefly exploring the Jewish scriptural sources, religious significance, and scope of the procreative imperative, especially regarding the questions of whether utilizing ART leads to the fulfillment of this religious duty, and relatedly, whether there is an obligation to pursue procreative outcomes through ART, and if others have a religious and moral duty to assist. In addition, this chapter will also briefly review early halakhic considerations of ovarian transplants, as well as of artificial insemination with a woman’s husband’s sperm (AIH) or with donor sperm (AID).5 _{Since these two medical therapies were the first ARTs}

employed to benefit individuals or couples struggling with infertility, their foundational discussion among halakhists undergirds later medical halakhic and Jewish bioethical considerations of the four subsequent cases of ART considered in this dissertation.

4 _{For example, rabbinic and halakhic literature do not speak of the right not to procreate, but of exemptions}

from the obligation to reproduce. See “The Prohibition of Sexual Intercourse in a Time of Famine,” Irshai 2012, 47-52.

5 _{The “H” in AIH is decoded as “homologous,” rather than “husband,” even though it still refers to a}

woman’s husband, as opposed to heterologous artificial insemination, AID, in which donor sperm is used, employing a “D” for “donor.”

The Mitzvah of “Peru uRevu” – The Commandment of “Be Fruitful and Multiply”

Scriptural Sources and Religious Significance of the Mitzvah of Procreation

The Talmud (TB Yevamot 65b) identifies the scriptural source for the mitzvah of procreation in the verse addressing Adam and Eve, the first persons, immediately

following their creation on the sixth day: “And God blessed them, and God said to them, ‘Be fruitful and multiply, fill the earth and master it; have dominion over the fish of the sea, and over the birds of the sky, and over every living thing that moves upon the earth” (Genesis 1:28).6 _{In another place, the Talmud (TB Sanhedrin 59a) identifies two alternate}

sources. The first charges humanity, more generally, with procreative repopulation in the aftermath of the world-destroying flood, through the Noahide covenant: “And God blessed Noah and his sons, and said to them: ‘Be fruitful and multiply, and fill the earth’” (Genesis 9:1).7 _{To add this charge to the Children of Israel’s Sinaitic covenant, the}

6 _{Maimonides (1138-1204), Sefer Hamitzvot, positive commandment 212, and Mishneh Torah, Sefer} Nashim, “The Laws of Marriage,” 15:1, points to this verse as the source of the commandment of

procreation. Locating the charge in the context of the first woman and man underscores the rabbinic idea that within each person inheres the capacity to populate, over the generations, a whole world, just as did Adam and Eve, see Mishnah Sanhedrin 4:5; Maimonides, ibid., 15:16. The medieval Spanish Jewish bible commentator Abraham ibn Ezra (1089-1167; ad loc., Genesis 1:24), opines that the verse addressing Adam and Eve is solely a blessing and not a command, since this verse is similar to the blessing at the conclusion of the fifth day of creation addressed to the fish and birds, who are not subject to commandments like willful human beings: “And God blessed them, saying, ‘Be fruitful and multiply and fill the waters in the seas, and let the birds multiply in the earth’” (Genesis 1:22). See also Rashi (1040-1105) and

Nachmanides’s (1194-1270) commentaries on Genesis 9:7; and Tosafot (12-14th _{centuries) Yevamot 65b,}

s.v. “veLo.” However, others, such as Rabbeinu Nissim (1320-1380) in his biblical commentary (ad loc. Genesis 1:28), parse the verse as containing both blessing and commandment: “And God blessed them” – this clearly establishes an orientation of benediction; “and God said to them” – this refers to the additional valence of commandment in the verse. For a full discussion of the scriptural source of the commandment of procreation, see Ciment 2010, 188-9.

7 _{The Noahide covenant refers to the prohibitions and affirmative duties that God imposed upon Noah, his}

family, and their descendants after the flood. The apocryphal book of Jubilees 7:20-8, as well as the New- Testamental book of Acts 15:1-31, refer to “Noahide laws,” which likely parallels this rabbinic tradition. The second-century-CE rabbinic Tosefta (Avoda Zara 9:4) lists six prohibitions and one affirmative duty as comprising the “seven mitzvot of the Children of Noah”: 1. denial of God; 2. blasphemy; 3. murder; 4, illicit sexual relations; 5. stealing; 6. eating the limb of a living animal (prohibitions); 7. the establishment of just laws and courts (affirmative duty). The Talmud (TB Sanhedrin 59a ff.) cites this Tosefta and

Talmud cites a second source. In recounting the revelation at Sinai to a new generation, Moses, in his deuteronomic farewell oration, recalls God instructing him after the giving of the commandments: “Go say to them (i.e., the Children of Israel), ‘You shall return to your tents’” (Deuteronomy 5:27). The Talmud understands this verse allusively and euphemistically charging the people to return to their marital beds to procreate. The talmudic sage Rava (TB Yevamot 62a) discovers further grounds for a commandment of procreation in the prophetic words of Isaiah (45:18): “For thus says the Lord who created the heavens; God Himself who formed the earth and made it; He has established it, He created it not in vain, lashevet yetzarah – He formed it to be inhabited; I am the Lord; and there is no one else.” Through the populating of the world, humanity partners with God in the ongoing creation of the world thereby progressing its intended purpose. Additionally, the Talmud (TB Yevamot 62b), cites the opinion of Rabbi Joshua that the procreative imperative applies in one’s old age, just as in one’s youth, based on a metaphoric reading of a verse in Ecclesiastes (11:6): “In the morning sow your seed, and in the evening, do

provides the halakhic midrashim through which several of them are exegetically derived from the verses of Genesis. In is interesting to note that the commandment of procreation is not including in this list of seven Noahide commandments. The Talmud (TB Sanhedrin 59b) asserts that any commandment explicitly charged to the Children of Noah, but not repeated to the Children of Israel at or after Sinai, became incumbent solely upon Israelites, and was no longer binding upon gentiles. Other rabbinic voices, however, demur, and expand the list of Noahide laws beyond the seven enumerated above. The Talmud, for example, cites the opinion of ‘Ulla (TB Chulin 92a,b) who claims that there were thirty commandments included in the Noahide covenant. Although the Talmud doesn’t identify all thirty, Rabbi Menachem Azaria de Fano (1548-1620) in Asarah Ma’amarot (Ma'amar Chikur Din 3:21) reconstructs the identity of all thirty, and indeed includes the commandment of procreation among them. See Tosafot Sanhedrin 59a s.v. “Veha

priyah verivyah”; Maimonides, Mishneh Torah, Book of Judges, “Laws of Kings” 8:11; 9:1-10:6; Bleich

not withhold your hand; for you do not know which shall prosper, either this or that, or whether they both alike shall be good.”8

The Scope of the Mitzvah of Procreation

The Mishnah (Yevamot 6:6) reads: “A person should not refrain from [the

mitzvah of] being fruitful and multiplying unless he has children. The House of Shammai say: [‘Children’ is minimally defined as] two males; and the House of Hillel say: a male and a female, as it says, ‘male and female He (i.e., God) created them’” (Genesis 1:27).9

According to the House of Hillel, the minimal measure of the fulfillment of the

commandment mirrors its original context and intent: a male and a female offspring have the capacity, like Adam and Eve, to populate the world.10 _{According to the House of}

Shammai, apparently once the world has been populated, the minimum contribution of two male offspring constitutes the basic requirement of procreation, regardless of whether or not daughters have also been born.11 _{When a person has reached the minimal measure}

of procreative accomplishment, the obligation to reproduce detaches. In contradistinction

8 _{This section on the commandment to procreate was influenced by a self-study, professional education unit}

prepared for Yeshiva University’s Center for the Jewish Future by Rabbi Joshua Flug, see Flug 2012a,b,c.

9 _{The Talmud (TB Eruvin 13b) establishes the rule that the law always accords with the House of Hillel.}

TY Kilayim 8:4 notes three exceptions to this rule; Tosafot Sukkah 3a, s.v. “Deamar,” note an additional six exceptions.

10 _{This symbolically holds true despite brother and sister being proscribed by incest laws from actually}

mating themselves.

11 _{The Gemara (TB Yevamot 61b-62a) in its commentary on this Mishnah cites explanations for the House}

of Hillel and the House of Shammai’s respective positions. Either the House of Hillel bases their view on the original charge in Genesis to Adam and Eve, or by the divine telos for creation as described by Isaiah 45:18. The House of Shammai models their measure on the example of Moses who had two sons, and subsequently, per rabbinic biblical interpretation, withdrew from engaging in sexual relations with his wife Tzipporah. Alternatively, based on the example of Adam and Eve, who after Cain murdered Abel, had only one additional child, a son, Seth. Further opinion in the Gemara asserts that it is actually the opinion of the House of Shammai to require a male and a female, and reduces the House of Hillel’s minimum measure to one male or one female, see TB Yevamot 61b.

to these minimums, the aforementioned teaching of Rabbi Joshua to procreate in both one’s youth and old age seemingly mandates an ongoing obligation, though many authorities rank Rabbi Joshua’s imperative as a second level obligation, either of rabbinical, as opposed to biblical force, or as supererogatory, in fulfillment of an independent quasi-obligation of “shevet – inhabitation,” per Isaiah, which goes beyond the basic minimal biblical requirement of procreation as debated by the Houses of Shammai and Hillel.12

The same Mishnah (ibid.) also teaches: “A man is commanded regarding [the mitzvah of] being fruitful and multiplying, but not a woman. Rabbi Yochanan ben Beroqah says: regarding both of them it (i.e., the Torah) says: ‘And God blessed them and said to them, ‘Be fruitful and multiply’” (Genesis 1:28). Although procreation naturally requires the participation of a woman in addition to a man, the halakhah somewhat surprisingly follows the anonymous first opinion of the cited Mishnah obligating only the man, despite Rabbi Yochanan ben Beroqah’s competing opinion of equal obligation.13 _{The Gemara justifies the exclusion of women from the commandment}

of procreation based on midrash halakhah (rabbinic hermeneutical exegesis):

How do we know this? Said Rabbi Ila’a in the name of Rabbi Elazar ben Rabbi Shimon: [juxtaposed with the command to be fruitful and multiply,] Scripture said: “fill the earth and conquer it” (Genesis 1:28). It is the way of a man to

12 _{Rabbi Joshua’s statement is one of several sagacious interpretations of Eccelsiastes 11:6, and may be}

intended more as wise counsel than legal prescription. See Irshai 37-47, for a full survey of interpretations and normative applications of Rabbi Joshua’s statement. Irshai frames the whole question of procreative obligation in light of the duty of Torah study, alleging that minimal obligations allow greater opportunity for participation in elite, rabbinic study culture, while maximal obligations limit such opportunities.

13 _{See Shulkhan Arukh, Even Ha’ezer, 1:1,13. It should be noted that per the formalized rules of the}

adjudication of competing halakhic opinions in the Mishnah, the halakhah is usually decided in favor of the anonymous first opinion, which is often attributed to the rabbis, or to Rabbi Judah the Patriarch, the scholar to whom the compiling of the Mishnah is attributed.

conquer and not the way of a woman (thus, teaching her exclusion by

implication). But Scripture wrote: “conquer it” (in the plural)? This implies two (i.e., both male and female were obligated)! Said Rav Nachman bar Yitzchak: it is [actually] written [in the singular], “conquer it.”14 _{Rav Yosef said: We learn it}

from: “I am El Shaddai. Be fruitful and multiply (singular verbs)” (Genesis 35:11); it does not say: “Be fruitful and multiply (plural verbs).” (TB Yevamot 65b)

Despite the formal textual reasons for exclusion of women from the mitzvah of procreation provided by the Talmud, talmudic and biblical commentators, as well as Jewish historians and feminist critics have sought to provide the underlying explanations for this counter-intuitive, normative, halakhic position. Rabbi Meir Simchah of Dvinsk (1843-1926), in his biblical commentary Meshekh Chochmah (ad loc. Genesis 9:1), explains that since pregnancy and parturition carry life-threatening risks, the Torah, whose ways are the “ways of pleasantness” (Proverbs 3:17), did not obligate women in procreation. The medieval, Spanish, talmudic commentator Rabbeinu Nissim (1320- 1380) nonetheless posits a woman’s ability to voluntary fulfill the biblical imperative (for men) to procreate, assuring her religious significance of, and heavenly reward for, her non-obligatory reproductive efforts.15

Today, some historians and feminist scholars look to a larger patriarchal frame of rabbinic culture to explain the seeming privileging of male spirituality through greater mitzvah obligation, including procreation, and the consequentially legislated

subservience and depersonalization of women by relegating them to functional utility for

14 _{While biblical Hebrew distinguishes between plural and singular nouns and verbs, biblical Hebrew is}

written without vocalization making it sometimes difficult, absent context, to identify a word’s number. Thus, while the vocalized reading of the word “vekivshuah – and conquer it” in Genesis 1:28 is in the plural, per the simple contextual reading, the actual written form of the word is morphologically in the singular.

men’s fulfillment of their religious duties.16 _{Ronit Irshai (2012, 30-5), however, argues}

for a feminist reading of women’s exemption from the mitzvah of procreation as creating greater flexibility in what today we would call family planning. A women’s exemption from the mitzvah allows her the option of contraception, saving her from difficult pregnancies and dangerous labors, and further grants her the discretion to limit the number of children she bears. She asserts these practical outcomes while remaining agnostic about the original motivation of the rabbis in excluding women from the procreative commandment (ibid., 34). Irshai (ibid., 53-110) contends that over time, and especially in contemporary Orthodoxy, restrictions on contraception and a maximalist theology of family building, rather than planning, has substantively reduced such flexibility.

The Mitzvah of Procreation: Action or Result Oriented?

Talmudic commentators of the later Modern era in their conceptual analysis of the mitzvah of procreation have pinpointed the nature of the mitzvah as hinging on the following dialectical investigative question: Is the religious obligation to procreate action or result oriented?17 _{In other words, is the mitzvah to try to have children by engaging in}

lawful sexual relations whatever the outcome (i.e., action oriented), or is the mitzvah

16 _{See Daube 1981, 57; and Wegner 1988, 42, 171. Others, however, argue that while rabbinic society was}

certainly patriarchal, the rabbis esteemed women and women’s spirituality, and championed their material and spiritual welfare, see Hauptman 1998, 140-41.

17 _{Babad 1998, mitzvah 1; Ciment 2010, 188, 1:4. For the history and dialectical methodology of modern,}

actually to produce offspring (i.e., result oriented)?18 _{The answer to this question}

produces a marked practical difference – namely, if the mitzvah is action oriented then a couple struggling with infertility fulfills the mitzvah of procreation simply by trying to have children, despite the negative outcome. While fulfillment of the mitzvah per se will not satisfy their desire for children, it does have potential halakhic ramifications as to the duty, or even permissibility, to pursue ART. A myriad of secondary issues may also pivot on whether there is a halakhic obligation to pursue ART including the expenditure of personal financial resources, emotional investment, and the obligation upon others to assist.

Two perplexing talmudic hypotheticals inspired this conceptual analysis and led to this demarcating dialectical question. The first considers the case of a convert to Judaism who procreated and produced children while still a gentile. Upon conversion, does his having had children in his gentile past automatically yield fulfillment of his newly assumed mitzvah to procreate, or must he procreate anew? The second concerns a Jew whose children have died. Does his fulfillment of the mitzvah survive their deaths or do their deaths nullify his fulfillment and obligate him anew? The Talmud records the following debates:

It was stated: If he had children while still an idolator and then converted – Rabbi Yochanan said: “He has fulfilled [the mitzvah of] ‘Be fruitful and multiply.” And Reish Lakish (Rabbi Shimon ben Lakish) said: “He has not fulfilled ‘Be fruitful and multiply.’” Rabbi Yochanan said that he fulfilled ‘Be fruitful and multiply’ since he already has them; Reish Lakish said that he has not fulfilled ‘Be fruitful and multiply’ since a proselyte who converts is likened to a newborn child (without former familial

18 _{Similarly, if an act is required, does this need to be a sexual act or is a medical procedure sufficient? In}

other words, is an act of artificial insemination sufficient to fulfill the ma’aseh mitzvah – the mitzvah action of procreation. See Steinberg 2003c, vol. 1, 63, and 63n49.

connections). … It was stated: If he had children and they died – Rav Huna said: “He has fulfilled ‘Be fruitful and multiply.’” Rabbi Yochanan said that he has not fulfilled