D'var Torah, Parshat VaYishlach, December 17 2005

I gave the d'var Torah at shul this weekend, and this is what I said:

Infertility in the Torah: A Jewish Perspective on Assisted Reproduction Techniques (ART)

I know that most of you are used to seeing me standing up here with the Torah in front of me, but I figured it was time to talk about some of the contents of the Torah. I am not going to discuss this week’s parsha, VaYishlach, in particular, but I could have given this d’var any time in the last several weeks, as we’ve been reading Bereshit. I’d like to discuss a subject that unfortunately I have become an expert on - infertility and assisted reproduction. As most of you know, David and I have been struggling to have a baby for the last three years, and this is a subject that is rampant in the Torah.

Bereshit 1:28 says, "Be fruitful and multiply, fill the earth and subdue it".

Unfortunately, Sarah, Rebekah, and Rachel all had a difficult time fulfilling this commandment. Let’s take a look at each of our matriarchs and how they dealt with infertility.

First we have Sarah. Bereshit 11:30 says, “and Sarai was barren; she had no child”. Eventually she offers her handmaid, Hagar, to Avram, and Hagar becomes pregnant. This is the first instance of some type of assisted reproduction in the Torah, and was very common in Biblical times. But Sarah then feels that her social position has been diminished, because Hagar was merely a servant and she is the wife. Yet G-d continually promises Abraham that he will be the father of a great nation, and Sarah surely wonders when this is going to happen, if ever. We know that Sarah was bitter in her old age about being infertile, to the point where she laughed when G-d’s messenger told her she was finally going to become pregnant. I would laugh too, if I had given up all hopes of ever having a child of my own, I wouldn’t believe it and would be totally surprised. Bereshit 21:1-2 says, “And G-d remembered Sarah as He had said, and G-d did unto Sarah as He had spoken. And Sarah conceived, and bore Abraham a son in his old age, at the set time of which G-d had spoken to him”.

Our second infertile matriarch is Rebekah. The only mention we have of her infertility is Bereshit 25:21, which says, “Isaac pleaded with the Lord on behalf of his wife, because she was barren; and the Lord responded to his plea, and his wife Rebekah conceived.” I am not sure why Isaac pleads on her behalf, rather than her asking G-d directly. But Isaac’s prayers are answered and she becomes pregnant with twins. However, it is a difficult pregnancy, and she is worried through the entire pregnancy that something is wrong. This is a very common reaction for a woman who has finally become pregnant after years of infertility. She just can’t believe it’s real, and she has so many friends who have miscarried that she is convinced it will happen to her as well.

Our third infertile matriarch is Rachel. She is not only infertile, but she also has to deal with an infertile woman’s worst enemy – the uber-fertile sister. Every time Leah becomes pregnant, Rachel’s pain becomes more and more magnified. She anguishes over when it’s going to be her turn, or if it will ever be her turn. Finally she becomes so desperate that she says to Jacob, “give me children or I will die”. Rashi explains that this statement signifies that a childless person is accounted as dead. Rachel's next act was even more desperate. Reuven, the firstborn son of Leah, returned from the field with some plants called "dudaim" (Bereshit 30:14). The biblical commentator Nachmanides suggested that these plants were herbs which promoted conception. Reuven presented them to his mother for her use (although I don’t know why she would need them, since she already has 4 sons at this point). Rachel observed this and begged her sister for the plants. Then she made a deal: in return for the dudaim she would allow Leah to spend one night with Jacob. Ironically, Leah's fifth son was born as a result of this deal. Finally after seeing Leah give birth to two more children, Rachel’s prayers are answered and G-d opens her womb and she gives birth to Joseph. Immediately, she asks for G-d to give her another son. Even though Rachel’s prayers are again answered, sadly, she dies in childbirth with Benjamin.

There are some other lovely stories in the prophets about infertile women, such as the famous Hannah whom we read about on Rosh Hashanah, and the story of Samson’s unnamed mother.

Infertility was not only a painful and tragic experience for the Matriarchs. It continues to afflict many Jewish couples. The biblical notion of infertility was that it was due to the female (notice how Hagar got pregnant immediately, in contrast to Sarah). Among all cases of infertility, about 20 percent can be traced to male factors, 38 percent can be traced to female factors, 27 percent can be traced to factors in both the male and female partners, and 15 percent cannot be traced to obvious factors in either partner. Infertility should therefore be viewed as a “couple” disease, regardless of which partner is affected. The Conservative movement has also created a ritual for coping with infertility, so that the pain need not be borne alone. You may recall that Rabbi Strauss did a lovely prayer for us in the synagogue about a year ago. This ritual can be performed in public or private, as the couple wishes.

In modern times, we have many assisted reproduction techniques to help infertile couples, and Judaism is fairly liberal on the use of ART. In fact, in Israel, in-vitro fertilization is covered by the state health care. Judaism also appreciates medicine as an aid to G-d, so these techniques are not considered abhorrent. In general there is no problem in Jewish law with seeking out any treatment where the woman’s eggs and the man’s sperm are being used. Halacha becomes interesting when you are using donor eggs, donor sperm, or a gestational surrogate, and I will talk about these issues in a moment. Another interesting point is that if a couple is diagnosed as infertile, they are released from the commandment of “be fruitful and multiply”, and are not obligated to pursue any ART (they may, however, choose to do so).

First, let’s answer the question: What is infertility? The International Council on Infertility Information Dissemination (INCIID) says that infertility is the inability to conceive after a year of unprotected intercourse in women under 35, or after six months in women over 35, or the inability to carry a pregnancy to term. The first step in seeking treatment is to determine if the woman is ovulating regularly, and to do a semenalysis on the male partner. Both of these tests are simple and painless, and can save time down the road. Also a test called a hysterosalpingogram (HSG) is done, in which dye is injected into the fallopian tubes to ensure that they are open (side note – this was by far the most painful procedure I went through). There are drugs such as Clomid that can be taken orally in order to help regulate anovulatory or irregular women. If natural conception (with or without Clomid) does not work, then the woman will find a reproductive endocrinologist, who specializes in infertility disorders. If the woman is ovulating and the male partner is normal, generally the first line of treatment is to try artificial insemination, also called intrauterine insemination (IUI). In this procedure, a semen sample is collected from the male partner, and the sperm is injected directly into the woman’s uterus, after being treated to remove proteins that could cause shock and even death in the woman. Many more sperm can be injected into the uterus than would find their way naturally. Hopefully the sperm will find their way into the fallopian tubes and fertilize the egg. There is some controversy regarding how semen may be procured for the procedure. Since there is a biblical admonition regarding the "spilling of seed", some rabbis insist that the husband may not ejaculate to provide a specimen. However, since the intention of the procedure is specifically to enhance procreation and the semen is not being wasted, ejaculation to produce the semen may indeed be permissible. Artificial insemination has been performed for many years, and the question of the halachic validity of this procedure has been discussed by many sources. Most rabbinical authorities approve of artificial insemination if the husband's sperm is used.

The next line of treatment is to use injectible hormones for the female partner in order to hyperstimulate her ovaries, so she is producing multiple eggs (on the order of 2-6) to fertilize. As long as there is no male factor, this technique can be successful with IUI. Giving the sperm more “targets” can increase the likelihood of one of them finding its way. If IUI fails, often laparascopic surgery will be performed in order to assess the condition of the woman’s uterus and uterine lining. Endometriosis is one of the main causes of female infertility, and often removing the endometriosis can remove barriers to contraception.

After IUI doesn’t work, the next line of treatment is in-vitro fertilization (IVF). In this case, the woman’s ovaries are hyperstimulated with a regimen of injectible hormones in order to produce many, many follicles (10-20), and when they are mature, they are removed in an outpatient procedure. The husband provides a semen sample, and the eggs are then allowed to fertilize in a dish in the laboratory. After 3-5 days, the best embryos are chosen, and they are returned to the woman’s uterus, where hopefully one of them will implant and make it 9 months.

When more than one fertilized egg is implanted into the woman, this may result in a multiple pregnancy. When there are three or more fetuses growing in the womb, this results in a high risk pregnancy, and selectively eliminating one or more of the fetuses, may be recommended. Is this halachically permissible? Ending the life of a fetus is not considered murder by halachic definition, but it is not permissible either. The Conservative movement ruled that it is halachically acceptable in certain cases – in order to protect the woman from a serious threat to her health, and of course with the justification of protecting the remaining fetuses. However, Jewish law recommends transferring no more than 2 to 3 embryos in order to minimize the risk of selective reduction.

One procedure associated with IVF is preimplantation genetic diagnosis (PGD). In this case, a cell is removed from an embryo in the early stages of development and the DNA is tested for genetic disorders. This procedure is acceptable in Jewish law in order to avoid having a child with a severe genetic disease. PGD should certainly not be performed purely for the issue of gender selection, unless there is a disease that would be genetically linked to a specific gender.

Another issue with IVF is that when IVF is performed, the woman is stimulated by hormone treatment so her ovaries can produce up to 20 eggs per cycle. The eggs are harvested and fertilized, but only three or four can be used in that cycle. The rest can be preserved by freezing. How does Jewish law address the issue of extra embryos? The fate of extra embryos could include: (A) Use of them by the original couple to establish future pregnancies (rabbis affirm this use). (B) Destruction of the extra embryos (permissible halachically if this is done passively, by letting them thaw out and die on their own). (C) The use of these extra embryos for research. Since this is an active process and results, ultimately, in their destruction, this is not generally acceptable by Orthodox rabbis. (D) Donation of the extra embryos to another infertile couple. This option is not approved by many Orthodox rabbis because the "adopted" child may inadvertently marry his/her genetic sibling, resulting in incest. However, the Conservative movement has ruled that after careful consideration of the implication of their actions, a couple may donate embryos to another couple to have a child.

The issues involved in using donor sperm or eggs can create halachic problems. Some rabbis object to the user of donor insemination on grounds of adultery. In this case the child would be illegitimate (a mamzer). There is also the possibility of unintentional incest in the next generation if the sperm donor is unknown. This issue is resolved in Jewish law if the donor is known and the children avoid his offspring as mates. The Conservative movement has ruled that donor insemination does not constitute licentiousness or adultery, and the child conceived is fully legitimate. For purposes of priestly status, the child follows the status of the semen donor, if known, or else adopts the default status of Israel.

In the case of egg donation, the procedure is more medically risky than in the case of donor sperm, since the egg donor is treated to hyperstimulate her ovaries and obtain as many eggs as possible. Jewish law does not permit one to endanger onself unduly. Egg donation should only be used, therefore, when the couple has seriously considered all other options, including adoption.

When an egg donor provides an egg for an infertile couple, the recipient, usually a sterile woman who cannot produce eggs, serves as the gestational and birth mother and she gives birth to and raises the baby as her own. In this case there are two categories of motherhood: a genetic mother, and a gestational/birth mother. These functions can be performed by two different people, who may or may not be related to each other and may or may not have any connection with each other (other than their individual contributions to producing and raising the child).

There are rabbinical authorities who reject outright the idea of using donor eggs. Others believe that a woman may receive donor eggs as long as her husband has consented. The question of who is the mother is extremely complicated to answer. This is certainly a critical question as it impacts on the status and identity of the baby. According to traditional Judaism, the status of "who is a Jew" is determined by whether or not the mother is Jewish. In the case where the genetic mother and the gestational mother are the same person, then the issue is clear. What happens when the genetic mother is a different person from the gestational mother? Which mother is considered the mother for the halachic decision on religious status? If the genetic mother is not Jewish and the gestational mother is, what is the status of that infant? Rabbi Moshe Heinemann, Rabbinic administrator of Star-K Kosher Certification, states unequivocally that if the egg is from a non-Jewish woman, then the baby is not Jewish. In this very stringent ruling, when a donor egg is used, the birth mother is not considered the halachic mother.

Other rabbinic authorities have also addressed this question and have concluded that there is halachic uncertainty regarding who is the mother. Rabbi Moshe Tendler writes: "the contributions of the gestational mother are quite consequential" (Pardes Rimonim, 1988). In fact, many halachic authorities regard the birth mother, rather than the egg donor, as having maternal status. The halacha on many issues relies on what can be readily observed with the naked eye. For instance, microscopic or small amounts of non-kosher contaminants in kosher foods, do not necessarily render the food non-kosher. Thus, the decision on maternity may be based on which mother gives birth (an action which is incontrovertible, and readily proven), rather than which mother provided the egg (a microscopic contribution, albeit a critical one). On the other hand, considering the important role that inherited status plays in some Jewish circles, genetic status could be of paramount importance, and perhaps the mother who provided the egg should determine Jewish status. The Conservative movement ruled that egg donation is not licentious or adulterous. The identity of the mother for the purposes of Jewish law follows the bearing mother – i.e. the child is Jewish if the woman who bears the child is Jewish.

The use of a gestational surrogate, where the couple’s own embryos are implanted into another woman who then carries the baby to term, is still a relatively new area of Jewish law and opinions are divided. Rabbi Elie Spitz says that surrogacy is a new legal construct, and that Jewish law has no precedent for splitting biology and gestation. However, he believes it would be wrong to outlaw a procedure that has the potential to help so many couples overcome infertility, as long as one is aware of all the ramifications. The surrogate should have her rights protected, and be allowed to make any medical decisions regarding her health. There should be concern for the well-being and rights of the child and to avoid exploitation of the child or the surrogate. Rabbi Spitz concludes that it is permissible to employ a surrogate, and that the man fulfills the mandate of procreation in this case.

In contrast, Rabbi Aaron Mackler says that surrogacy cannot be halachically recommended, and in most cases would be forbidden by Jewish law and ethics. He is primarily concerned with exploitation of the surrogate and the child, particularly if the surrogate already has a family; and about the legalities that we discussed in the case of egg donation about who is the child’s mother. He believes the surrogate should be allowed to request custody of the child at birth, while Rabbi Spitz believes the surrogate is obligated to release all claims to the child once it has been born.

Most of these issues can be overcome by converting the child at birth, to ensure that they are halachically Jewish.

David and I underwent most of the treatments I have just described to you, and we chose to end treatment after our third IVF cycle ended in miscarriage. Our diagnosis sadly falls in the “unexplained” category of infertility, although my doctor has suggested the use of donor eggs simply due to my advanced maternal age (yes, since I’m over 35, I am advanced maternal age). We have chosen instead to build our family through adoption, because it is the one treatment that is 100% guaranteed to result in a baby. I have struggled a lot with my faith during these last few years, especially when I read the stories of the matriarchs and how their prayers were answered. Lord knows I have prayed enough for my womb to be opened, and it hasn’t happened yet. Deuteronomy 7:12-14 says “if you obey these rules and observe them faithfully, the Eternal, your G-d, will maintain for you the gracious covenant that G-d made on oath with your forbears. G-d will love you and bless you and multiply you … there shall be no sterile male or female among you.” For an infertile woman, the implication seems to be that fertility is an integral part of the covenant. Is barrenness next to godlessness? I choose to believe the answer to this question is a resounding “no”. I believe that G-d will answer my prayers to be a mother, just in a different way.


Note: much of the information in this d’var was taken from an article written by Dr. Miryam Z. Wahrman, who is a Professor of Biology at William Paterson College in Wayne, New Jersey. She set up and ran the first In Vitro Fertilization laboratory in New York City. I would also like to thank Rabbi Steve Morgen for loaning me the Responsa of the Conservative Movement to help me with the legal issues.