CHAPTER THREE

Epistemological and Moral-Axiological Dimensions of Contemporary Jewish Bioethics

Rapidly evolving scientific understandings and technological capabilities, amidst changing moral judgments in larger society, provide a unique window into Jewish religion and science relations in contemporary Jewish bioethics. This dissertation

investigates how Judaism’s robust textual tradition, creative legal process, and history of legal precedents and religious and moral instruction, respond to and develop in light of scientific and technological advancement. More specifically, as introduced in Chapter One, this exploration is grounded in a focused analysis of epistemological and moral- axiological dimensions of the contemporary Jewish bioethical debate concerning the identification of maternity and paternity, and their attendant halakhic and bioethical considerations, in four current cases of assisted reproductive and genetic technologies: 1. In Vitro Fertilization; 2. Gestational Surrogacy 3. Cloning; and 4. Mitochondrial Replacement Therapy, i.e., “three-parent babies.” In this chapter, I will explain more precisely what I mean by “epistemological and moral-axiological dimensions” of

contemporary Jewish bioethics and more fully describe my method for their examination. In philosophy, “epistemology” refers to the study of knowledge, its sources, structure, boundary conditions, limitations, modes of acquisition and dissemination, as well as its justification (Steup 2014). In this study of the interface of Judaism and science within Jewish bioethics, I am more narrowly interested in the question of what constitutes recognized sources of warranted knowledge toward the elucidation of Jewish bioethical inquiries and the resolution of bioethical dilemmas, such as the definition of maternity

and paternity in ART. I am particularly interested in how Jewish bioethics integrates new scientific knowledge and technological capability when such contemporary

understandings and capacities have not been anticipated by, and may even conflict with, more ancient Jewish knowledge, such as Torah and talmudic texts and their rabbinic interpretive traditions. In this chapter, I will contextualize this dissertation’s study of the epistemic orientation of the representative exemplars of Jewish bioethics (chapters five through seven) with a brief review of Jewish theological theories of knowledge, Halakhic process, and schemata of religion and science relations, more generally, and specific to Judaism in cases of seeming conflicts of Torah and science.

In moral philosophy, “axiology” refers to the identification, evaluation, classification, and assessment of ethical values, of the right and the good, whether in meta-ethical or normative ethical inquiries (Schroeder 2012).1 _{In this study, I am more}

narrowly interested in the adopted and adapted ethical values as expressed or implied in discrete Jewish bioethical analyses of the four aforementioned cases of assisted

reproductive and genetic technologies. Since one’s moral axiology helps navigate the ethical considerations and consequences of new bioethical challenges, I aim to identify the values at play, evaluate their potential sources (which partially crosscuts with my above-explained epistemological interests), and consider how they orient and impinge upon the pertinent Jewish bioethical analyses. In order to better contextualize the role of ethical values in Jewish bioethics, I will explore the interrelationship of ethics and

1 _{In philosophy, more generally, “axiology” refers to the study of values, whether morally relevant or not.}

The etymology of “axiology” points to this more general usage, since ἄξιος means “worthy.” However, in this dissertation, “axiology” will be used refer to ethical values.

halakhah, with particular consideration of the Jewish theological issue of whether there exists an ethic independent of halakhah.

Finally, I will conclude this chapter by reviewing and outlining my method of investigation. I will explain how I incorporate the above mentioned philosophical and theological considerations into my dissertation’s investigative method. I will also present the assessment matrix that I used to research and identify the epistemological and

axiological dimensions of the contemporary Jewish bioethical debate regarding the definition and identification of maternity and paternity in the new assisted reproductive technologies.

Contextualizing Epistemological Dimensions: Jewish Theological Theories of Knowledge

The two primary origins of knowledge recognized in the intellectual history of Judaism are revelation and reason. Generally, revelation refers to the divine self- communication of knowledge to humanity, while reason refers to humanity’s autonomous generation of knowledge. Of course, theologically, the two are also inextricably linked. Since revelation is experienced by a human prophet, one of whose primary roles is to further communicate the received divine knowledge to others, by necessity the prophet’s rational faculties are required to mediate the prophetic process. Human beings will then exercise their reason to interpret, apply, and elaborate upon the prophetic message being received.2 _{Further, some Jewish philosophers more}

2 _{In Judaism, the exercise of human reason within the study of divine revelation is itself considered a} mitzvah (divine commandment). See Maimonides, Mishneh Torah, “Laws of the Study of Torah.”

fundamentally identify human reason as the “image of God” (see Genesis 1:27) within human beings, thus connecting all human cognition to divine intelligence.3 _{At the same}

time, divine knowledge, at its most basic level, is believed to exist independent of human reason, and human reason is understood to be capable of generating knowledge

independent of divine revelation. The nature of revelation and its relationship to human reason constitutes one of the main topics in the Jewish philosophical study of the epistemology of religion, especially during the medieval period. The philosophical warrants of belief in God and divine revelation have been of interest to modern Jewish and Christian theology considering the epistemological challenges of modern philosophy, the scientific revolution, biblical criticism, and new bio-cultural understandings of

religion.4

Prophetic revelation forms the sacred scriptures of Judaism, i.e., the twenty-four books of the Hebrew Bible, also known as TaNaKh, which serves as an acronym for

Torah (the five books of Moses); Nevi’im (the eight books of the prophets: Joshua,

Judges, Samuel, Kings, Isaiah, Jeremiah, Ezekiel, and the Twelve Minor Prophets, which itself includes the prophetic works of Hosea, Joel, Amos, Obadiah, Jonah, Micah,

Nahum, Habakkuk, Zephaniah, Haggai, Zechariah, and Malachi (so-called “minor”

3 _{See Maimonides 1963, Guide 1:26.}

4 _{A full elucidation of the themes adumbrated in this paragraph is beyond the scope of this dissertation. For}

an overview of prophecy and revelation in medieval Jewish philosophy, see Rynhold 2009, 104-130. For an overview of medieval Jewish philosophers, their intellectual history, and areas of philosophical interest, including prophecy and revelation, see Sirat 1996. For a more general philosophical consideration of prophecy, see Davison 2014, and Wolterstorff 1995. For an introduction to the epistemology of religion and modern theological warrants for belief, see Forrest 2014. For an investigation of the impact of the scientific revolution on religion, see Brooke 1991; and Barbour 1997, 3-76. For biblical criticism, see Grassie 2010, 133 ff., and Brettler 2005, 1-37; cf. also Berman 2017. For an explanation of the bio-cultural approach to the study of religion, see Wood 2014.

because of the size of the literary legacy, and not the import of their message); and

Ketuvim (the eleven books of the writings: Psalms, Proverbs, Job, Song of Songs, Ruth,

Lamentations, Ecclesiastes, Esther, Daniel, Ezra-Nehemiah, and Chronicles). Judaism, however, affirms a dual-Torah system comprised of the Written Torah, i.e., the

aforementioned twenty-four books of the Hebrew Bible, and the Oral Torah, i.e., the teachings of the Rabbis, continually developing and expanding from ancient times until today through ongoing study, interpretation, commentary, statutory codification, and normative halakhic application. The multi-genre, diachronic, voluminous, and expanding canon of the Oral Torah, now written down, enjoys a privileged epistemological status within Judaism. On the one hand, the rabbis of the Talmud assert, and later rabbis affirm, that the Oral Torah represents an unbroken chain of the transmission and conservation of divine knowledge prophetically received by Moses at Sinai through the generations until today.5 _{On the other hand, throughout Jewish history, the literature of the Oral Torah has}

been clearly and consistently generative, not merely conservationist. Theologically, the early rabbis justified this generativity as the actualization of the divinely-set, interpretive potential of the Hebrew Bible and of the ancient traditions of the Oral Torah, and thus newly generated rabbinic scholarship is fully sanctioned as part of the Oral Torah tradition.6 _{The epistemic orientation of religious Jewish scholarship, including Jewish}

bioethics, thus begins with the literary sources and interpretive traditions of the Written

5 _{Contemporary ultra-Orthodoxy tends to espouse a maximalist theology that emphasizes the revelatory}

origin of the entire Oral Torah tradition. Silber (1994) argues that this maximalist theology is a modern invention developed to safeguard traditionalism, obstruct modernization and assimilation, and better control halakhic innovation.

and Oral Torah, and their ongoing interplay of revelation and reason. This certainly holds true for Orthodox Jewish scholarship that asserts a belief in the divine origin of the Written and Oral Torah. It also, arguably, holds true for liberal interpretations of Judaism that embrace modern and post-modern critiques of religion and reject more traditional religious truth claims. The warrants for the liberal-Jewish epistemological privileging of the Written and Oral Torah, though, may vary depending on the theological, cultural, and social bases for understanding religious covenant and commitment.

While there is consensus within Judaism regarding the privileged status of the literatures of the Written and Oral Torah, there has been debate throughout the ages as to the epistemological legitimacy of other forms of rational knowledge, such as philosophy, including natural philosophy – i.e., what we call science. During the medieval period, these debates raged throughout the Jewish communities of Europe, Africa, and Asia, and are collectively known in Jewish intellectual history as “the Maimonidean

controversies.”7 _{Moses Maimonides was a twelfth-century Spanish rabbi who lived the}

majority of his adult life in Fostat (Old Cairo), Egypt, and there rose to great local and international prominence as a Jewish leader, scholar, and physician.8 _{Maimonides’s}

literary legacy is a vast collection of major works, minor treatises, epistles, and responsa concerning talmudic commentary, rabbinic law, Jewish theology, medicine, and natural philosophy. His three major works are: Commentary on the Mishnah, written in Judeo- Arabic and completed in 1168; Mishneh Torah, a monumental restatement and

7 _{See Sarachek 1935, and Septimus 1982.}

codification of the entire corpus of Jewish law, written in Hebrew and completed in 1180; and The Guide of the Perplexed, Maimonides’s Jewish theological treatise wrought from both his reconciliation of Aristotelian philosophy with Jewish theology, as well as his own systematic, creative analyses and interpretations, written in Judeo-Arabic, and completed in 1190. All of Maimonides’s works, and certainly his oeuvre as a whole, display his native genius, his total mastery of biblical and rabbinic Jewish literature, and that he had been educated in the Hispano-Arabic Jewish cultural synthesis of classical Greek, Islamic, and Jewish intellectual traditions.9

Perhaps this can best be exemplified by the structure and content of Mishneh

Torah, his encyclopedic compilation and reorganization of all of Jewish law, including all

laws currently binding, those relating to the era preceding the destruction of the second Temple in 70 CE, and those anticipating the messianic era and the restoration of the Jewish national state.10 _{Maimonides divides the entire corpus of Jewish law into fourteen}

books, each having many topical subdivisions of numerous chapters: 1. Knowledge (theology and ethics); 2. Love (ritual practice directly cultivating God awareness); 3. Festivals; 4. Women (marriage and divorce law); 5. Holiness; 6. Separation (vows and oaths); 7. Seeds (agricultural laws); 8. Worship (Temple service); 9. Sacrificial Offerings; 10. Purity Law; 11. Injuries (criminal and tort law); 12. Acquisition (laws of the

marketplace); 13. Judgments (civil law); and 14. Judges (governance).11 _{It is noteworthy}

9 _{See Davidson 2005, 122-537; Stroumsa 2009.}

10 _{The establishment of the State of Israel has brought to the fore questions regarding the modern}

application of Jewish law to Israeli law. For example, both Steinberg 2003 and Sinclair 2003 in their surveys of topics in contemporary Jewish bioethics include Israeli statutory law in their presentations and analyses.

that Maimonides’s first book, Sefer haMad’a (The Book of Knowledge), in this series purporting to be a complete codification of Jewish law, is a tract devoted to matters of belief, theology, and ethics.12 _{Maimonides clearly believes that philosophical and}

theological contemplation is an affirmative religious duty, worthy of standing first and foremost among Jewish legal directives.13 _{In Mishneh Torah (Book of Knowledge, “Basic}

Principle of the Torah,” 2:1-2) and The Guide of the Perplexed (1963, 3:28), Maimonides also champions the idea that the universe, as a creation of God, is a material expression of divine will and knowledge, and thus, should be regarded, like Torah, as a form of

revelation. The contemplation of the universe, what Maimonides calls “ma’aseh bereishit – the works of creation,” often translated as “physics,” in contradistinction to

“metaphysics,” whose study Maimonides also advocates, has great spiritual benefit in that it leads to fear, awe, and love of God.14

For Maimonides, Torah, physics, and metaphysics have epistemological

legitimacy and inspire the interplay of revelation and reason, including through the study of law, ethics, and medicine.15 _{In the ongoing Maimonidean controversies, the scholarly}

elites of the medieval Jewish world divided into camps of those who supported or

opposed the theological program and expansive epistemology of Maimonides. In truth, it would be misrepresentative of the great diversity of nuanced Jewish theological views

12 _{See Davidson 2005, 231n184, for additional sources on non-legal aspects of the Mishneh Torah.} 13 _{See Davidson 1974.}

14 _{The use of “physics” and “metaphysics” here is drawn from the Aristotelian-philosophical lexicon. For}

more on Maimonides and the sciences, see Langermann 2003; Stroumsa 2009, 125-52.

15 _{In his “Introduction to Commentary on the Mishnah,” Maimonides differentiates within the Oral Torah}

between unequivocal truth representing the rabbinic traditions originating with Moses at Sinai, and contingent truths arbitrated by the interpretive methods and decisional protocols of the rabbis. See Hartman 1976, 102-38; Ross 2004, 63.

and epistemological positions to reduce them all to “for or against” the study of

philosophy and science.16 _{At the same time, the epistemological legitimacy of non-Torah}

forms of rational thought, such as science and philosophy, and the license to study them in addition to works of Torah, continued to be debated through modern times, and indeed is still a debate within segments of the contemporary Orthodox Jewish community. This perhaps is most apparent when seeming conflicts of Torah and science emerge (see below, “Strategies for Contending with Conflicts Between Torah and Science,” p. 107 ff.).

All Jewish bioethicists, by virtue of the scholarly framework and conventions of the discipline, affirm, at some level, an epistemology that recognizes the legitimacy and authority of Torah traditions, scientific knowledge, and philosophical contemplation.17

However, the same may not be claimed for all halakhists writing on medical issues, and whose talmudic commentary, responsa, and legal decisions often serve as the Torahitic source material for Jewish bioethicists. This is not to claim that such halakhists are anti- science, per se, but simply that in the epistemological hierarchy of truth claims Torah traditions stand supreme. Medical halakhists, and even some Orthodox Jewish

bioethicists, at times, will regard scientific claims, secular ethics, medical

recommendations, and bioethical analyses with a strong hermeneutic of suspicion. Therefore, new scientific understandings and technological capabilities, unanticipated by

16 _{For contemporary Jewish theologies of the integration of Torah traditions and worldly knowledge, see}

Lamm 1990; Lichtenstein 1997. For a historical overview of Judaism’s encounter with other cultures and worldly knowledge, see Schacter 1997.

17 _{While Reform Judaism embraces personal autonomy over traditional authority, Torah sources still enjoy}

pride and privilege of place as foundational, thought-shaping traditions, even if subject to modern critique and change.

and perhaps even in conflict with more ancient Torah traditions, present fertile case- studies for Jewish religion and science relations, especially regarding their

epistemological dimensions.

Process and Methodologies of Halakhah

Beginning with the Wissenschaft des Judentum movement in nineteenth-century Germany until today, there has been a persistent effort to deconstruct and detail the halakhic system.18 _{Vered Noam (2007) insightfully identifies a certain irony in the}

academic study of Jewish law. For those who study Jewish law, historically

contextualizing its different layers and establishing rigid principles of methodological procedure, Halakhah can get stifled, even trapped within all of the constructed categories, conventions, and boundary conditions. On the other hand, most of those who study, write, and live Jewish law, i.e., primarily Orthodox Jews, do not usually engage in such

dispassionate and detached analysis. Their experience of Jewish law is one of native, creative, organic development. Thus, medical halakhists, employing great literary and legal interpretive ingenuity, produce views and positions that emerge out of and are resonant with the whole of their religious-cultural experience, in keeping with their theological and ethical commitments. At the same time, Jewish bioethicists with a wider epistemological embrace of scientific knowledge are likely to be more open to new ways of looking at older issues, such as the definitions of maternity and paternity.

Any academic study of halakhah first requires a review of its legal literary sources, placing them in the historical context of halakhah’s development, as well as a brief introduction to their defining legal methodologies.19 _{Biblical and Second Temple}

scholars study legal texts in comparison to other ancient near eastern legal codes and documents.20 _{Intellectual historians of the rabbinic, medieval, and modern eras will often}

analyze the legal method of particular works, schools, or of individual talmudists and halakhists in their historical context.21 _{Scholars of Jewish and comparative law will often}

look at more discrete principles, methods, and mechanics of Jewish law, as well as engage in comparative topical analyses.22 _{Others study the role, status, and authority of}

Jewish folk custom and its relation to the development of Jewish law.23

Broadly speaking, the primary genres of rabbinic literature, i.e., the

aforementioned Oral Torah, are: Talmud, Midrash, talmudic and biblical commentary, legal codification and commentary, and responsa literature. After the Biblical and Second Temple periods, continuing in broad sweep, rabbinic literature and Jewish law developed chronologically within distinct geo-political spheres within three different time periods: the Rabbinic, Medieval, and Modern Eras. Beginning with the Rabbinic Era, from the

19 _{A thorough, compact presentation of “The Structure of Jewish Law” comprises the first chapter of Rabbi}

David Feldman’s early landmark study, Marital Relations, Birth Control, and Abortion in Jewish Law (1968, 3-20). The most comprehensive review can be found in the third volume of former Israeli Chief Justice Menachem Elon’s Jewish Law: History, Sources and Principles (1994, vol. 3). Elon’s Jewish Law also reviews the systemic principles and fundamental concepts of Jewish law more broadly construed (1994, vols. 1 and 2). His edited collection of Encyclopaedia Judaica articles on issues of Jewish law pursues a similar exploration, and also provides brief summaries of the topics that Jewish law has traditionally addressed (Elon 1995).

20 _{See Brettler 2005, 61-72.}

21 _{See, for example, Katz 1971; Soloveitchik 2013.} 22 _{See, for example, Broyde 1988 and 2001b.}

23 _{See, for example, Sperber 1990-2007. A full review of these scholarly literatures is beyond the scope of}

end of the Second Temple period in Roman Palestine, circa first century BCE, through the sixth century CE in Palestine and Babylonia, the foundational rabbinic literatures were produced: the Midrashim; the Mishnah, a highly-categorized, literary repository of