The Use of Cryopreserved Sperm and Pre-embryos In Contemporary Jewish Law and Ethics

Abstract

We report here on the use of cryopreserved sperm and pre-embryos in contemporary Jewish law and ethics (Halakha). In general, Halakha welcomes the use of these cryopreserved materials to the extent that they are used within the context of a traditional marriage or as the only alternative to procreation within an anticipated marriage. It does not approve of electroejaculation for retrieval of sperm from brain dead individuals. Contrary to the position of the American Fertility Society, it rejects the use of a husband's cryopreserved sperm after his death without his explicit approval. Halakha accepts the position increasingly adopted in secular society that the genetic father is not considered the legal father of a child born from sperm inseminated or a pre-embryo implanted after the donor has died.

Introduction

In 1990, the Ethics Committee of the American Fertility Society¹ published a comprehensive reaction to the Roman Catholic Instruction on Respect for Human Life and the Dignity of Procreation.² In general, the Instruction argued from the perspective of its religious tradition against the moral legitimacy of most new procedures; the Ethics Committee, arguing from the consensus of contemporary society, found these procedures to be morally acceptable.

The Ethics Committee rebuffed the Instruction's general conclusions because it saw assisted reproduction "not as a replacement of sexual intimacy, but as its logical and technical extension.... The Committee believes that the Instruction, in its laudable effort to avoid mechanizing marriage and procreation, has too easily accepted natural procedures as morally normative." The Ethics Committee³ recently issued a restatement of its position, reaffirming its general approach and investigating additional ethical concerns of Assisted Reproductive Technologies.

There is a misperception among some professionals involved in assisted reproduction that all conservative religious systems have identical attitudes on these matters. We^4-7 have reported elsewhere on the position of Halakha (traditional rabbinic Jewish law and ethics) on various issues that relate to assisted reproduction and present here a report on recent halakhic discussions concerning the use of cryopreserved sperm and pre-embryos (pre-transplanted embryos fertilized in vitro). Religious deliberations generate and contribute to public debate on the issues, much as they each compete, in a sense, in determining public policy.

The Instruction presents its version of revealed religious truth, while the Ethics Committee articulates what it considers to be secular societal consensus. Yet religious presumptions permeate large segments of apparently secular thought, and different assumptions and perspectives do not preclude a meaningful dialogue. Indeed, such dialogue is essential not only in developing public policy, but in generating one's personal principles. As Dans⁸ observes, "Reproductive technology raises fundamental questions about the nature of human relationships and what limits, if any, should be placed on human procreation. Physicians ... must define where they stand personally and professionally on these issues."

Halakhic Judaism

Like Roman Catholicism, Halakhic Judaism looks to its religious sources rather than public consensus in developing its moral positions. It posits a dual legal structure, asserting a universal human morality, which it sees as binding on all people, and a specifically Jewish system, which is generally more stringent but which is applicable only to Jews. The basic sources for the investigation of the traditional Jewish position on any ethical or legal issue are the Bible, the Mishna and Talmud, and universally accepted codifications such as Maimonides' Mishneh Torah or Karo's later Shulhan Arukh. Some issues associated with artificial reproduction have been discussed from Talmudic through contemporary sources, and Hebrew and English summaries of these discussions exist.^9-11 But most of the current issues center on problems that arise from applying new technologies, and these must be addressed by contemporary rabbinic scholars. Unlike the situation in the Roman Catholic community, halakhic rulings on current issues cannot be promulgated by any central authority, as there is no formal hierarchical structure to the various rabbinic authorities and courts currently functioning.

Positions on prevailing issues are developed by circulation of responsa (rabbinic rulings) to questions posed to various rabbinic authorities. As Lichtenstein¹² notes, "A sensitive posek [halakhic decisor] recognizes both the gravity of the personal circumstances and the seriousness of the halakhic factors.... He might stretch the halakhic limits of leniency where serious domestic tragedy looms, or hold firm to the strict interpretation of the law when, as he reads the situation, the pressure for leniency stems from frivolous attitudes and reflects a debased moral compass."

Collegial review and community acceptance eventually allow for specific opinions to emerge as dominant. Yet, even when one view surfaces as authoritative, individual rabbis or layman will often defer to their local authority, whose position is considered decisive.

Assisted Reproduction in Halakha

Like the Roman Catholic Instruction, Halakha considers natural marital procedures to be morally normative; but it does not regard them as morally absolute. Thus, abandoning the normative approach to procreation must be weighed against other moral imperatives. (In Halakhic Judaism, this judgment is relegated to the rabbinic authorities, not the individual conscience.) Accordingly, the religious obligation to procreate can sometimes outweigh the imperative to maintain natural procedures and AIH (artificial insemination with husband's sperm) or IVF (in vitro fertilization) might be allowed to overcome a fertility problem. Thus, as a matter of principle, Halakha rejects the all-encompassing declaration of the Instruction that conception must be "realized in the conjugal act wherein the spouses cooperate as servants and not as masters in the work of the Creator, who is love."

This is not to say that Halakha fully embraces all aspects of assisted reproductive technologies. For example, it has strong reservations about any use of donor gametes, although some halakhists are willing to consider allowing it under certain circumstances. Unfortunately, halakhists often express widespread distrust of the medical establishment's integrity and a fear that foreign sperm will be added to or substituted for that of the husband in order to insure a successful insemination. This can usually be alleviated by establishing a good relationship between the doctor and the patient's halakhic authority.

There is a reluctance to intrude into the private marital relations of the couple or to allow masturbation to obtain sperm for testing or insemination. Therefore, most halakhists insist that a full workup of the wife be conducted before the husband's infertility is examined, and that all other therapies be attempted before IUI (intrauterine insemination) or IVF with the husband's sperm is attempted.

Jakobovits¹³ summarizes the hierarchy of preferred methods of sperm collection from the husband for testing or insemination procedures. Most preferred is collection of the sperm from the vagina following normal intercourse. If that is impossible for technical or psychological reasons, the sperm may be collected following coitus interruptus. If that is impractical, the sperm may be collected by use of a condom or a collecting receptacle placed intravaginally. But if, as a practical matter, all these methods cannot be used, the sperm may be obtained by masturbation, preferably done by the doctor using a mechanical stimulator, although self-stimulation can also be allowed. (Roman Catholicism considers use of a perforated condom during natural intercourse to be the only acceptable method of obtaining the husband's semen for fertility testing and appears to disallow even AIH, although McCarthy^14-15 has argued that it is a "solidly probable opinion in Catholic moral theology" that under certain conditions artificial insemination with the husband's sperm might nevertheless be allowed.)

Health professionals who are not personally familiar with (or committed to) the limitations that are integral to their patients' religious commitments can be incredulous that such restrictions could be allowed to frustrate or complicate the fertility therapy if the couple had a real desire to conceive. Such value judgments have no place in the patient-doctor relationship. Fertility therapy, like all legitimate medical therapy, must address the patient as a whole. The religious commitments of a patient may be at the core of his or her personal identity; understanding these commitments can help the physician construct a therapy protocol best suited for the patient at hand.

Cryopreserved Sperm Within and Without the Marriage Bond

While some halakhists would prohibit even AIH, the overwhelming consensus is to allow it if it is the only way for a married couple to have a child, and there would appear to be few new halakhic issues involved in cryopreserving the sperm before the insemination. Indeed, it may solve certain halakhic problems. For example, halakha prohibits intercourse from the beginning of a woman's menstrual cycle until she immerses in a ritualarium (mikve) a number of days following its cessation. If the woman's cycle is such that insemination must be done at a time when intercourse is prohibited, using cryopreserved sperm allows a specimen to be obtained using a condom during regular coitus rather than through masturbation, which is generally less preferred. In addition, cryopreservation allows one specimen to be used for a number of inseminations.

But Bakshi-Doron¹⁶ prohibits an unmarried man from cryopreserving his semen in anticipation of chemotherapy that might leave him sterile. Such a procedure is allowed, he argues, only to fulfill the halakhic obligation to procreate. Inasmuch as an unmarried man cannot yet be considered bound by this obligation, he argues, he cannot be permitted to secure the semen by masturbation. (It is not at all clear that his ruling would apply to some future possible procedures not yet technically feasible, such as removing spermatogonial stem cells by biopsy and then injecting them into his testes after the chemotherapy, or cryopreserving an unmarried woman's ova harvested before she undergoes hysterectomy.)

Malakh¹⁷ rejects Bakshi-Doron's argument, noting that while the obligation to procreate should optimally be fulfilled with one's wife, post factum it can be fulfilled outside of a marriage. An unmarried man is clearly under the obligation to procreate and therefore should be allowed to procure and cryopreserve his sperm towards that end. Avraham⁹ quotes Auerbach, who, while seeing no basis for a halakhic distinction between married and unmarried men in this matter, personally feels that in either case such a procedure runs counter to general halakhic ethics. Sushard¹⁸ and Kurtztag¹⁹ dispute the existence of any prohibition, even for an unmarried man. They argue that masturbation is allowed for any legitimate and compelling reason, a criterion clearly met by a bachelor facing chemotherapy that might leave him infertile. (Sushard¹⁸ quotes D. Feinstein as concurring.)

While there is no unanimity on the issue, it is clearly within the bounds of halakhic ethics to allow an unmarried man facing chemotherapy to store his semen for use after his marriage. There appears to be no current possibility of legitimizing such a procedure within Roman Catholicism.

Retrieval of Sperm from Brain-Dead Individuals

Ohl²⁰ notes that brain death is an increasingly common situation in which electroejaculation for retrieval of sperm is requested. Such requests have come from the wives (widows) or girlfriends of the brain-dead person as well as from family members who want to preserve the "bloodline" through some subsequent artificial insemination. It is doubtful if such a procedure could be allowed halakhically, as it is forbidden to derive any personal benefit from a corpse. The only exception is a life-saving procedure, such as transplanting organs; retrieving sperm would not fit under this rubric.

Jakobovits²¹ has summarized the rabbinic debate on whether or not brain death constitutes halakhic death. Those who hold that brain-dead people are not yet halakhically dead would place them in the halakhic category of gosses, a person on the verge of dying. A gosses may not be touched or moved for anything that does not relate to its immediate care, ruling out the possibility of electro-ejaculation for retrieval of sperm.

Post-mortem use of Cryopreserved Sperm

Halakha, unlike American secular law, does not recognize the right of a court to create legal parental relationships between genetically unrelated individuals. Adoption may establish legal obligations on the parties, but it does not establish halakhic filial or sibling relationships. On the other hand, Halakha recognizes paradigms in which genetic realties are considered irrelevant. For example, conversion is considered such a radical personal transformation that previous legal bonds and relationships are halakhically severed. Theoretically, siblings who convert could marry each other (although this was prohibited rabbinicly for reasons of public propriety). In the case of an intermarriage, the non-Jewish genetic father is not considered the halakhic father of a child born to his Jewish wife. Such a child is Jewish and is considered halakhically fatherless.

Some halakhists have argued that physical intercourse is a sine qua non for establishing halakhic relationships, suggesting that a child born through either artificial insemination or in vitro fertilization has no legal relationship to its genetic father. However, the current consensus is that such a child has the same relationship to its genetic father as if the conception had been effected through natural intercourse. Nonetheless, Yisraeli,²² one of Israeli's leading contemporary halakhists, points out that when cryopreserved sperm is used, the child has no relationship to the father if the insemination is done after his death. He²³ subsequently extended this ruling to frozen embryos implanted after the genetic father had died. (While he does not address the issue, it would seem that his logic would apply to a child born from a cryopreserved ovum fertilized after the death of the donor, assuming that such a procedure becomes technically possible in the future.)

A conclusion identical to that reached by Yisraeli is mandated by the United Kingdom's Human Fertilisation and Embryology Act (HFEA) 1990,²⁴ which legislates that "Where the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not to be treated as the father of the child." The Uniform Status of Children of Assisted Conception Act²⁵ proposes the same position. Morgan and Lee²⁶ report that this provision was inserted in HFEA to ensure that estates can be administered with some degree of finality. A similar logic motivated Yisraeli,²² who argues that any other conclusion regarding posthumous children could preclude finality to a deceased's status as "childless," an unacceptable halakhic situation. Morgan and Lee note that s. 29 of HFEA extends this ruling to questions of incest and prohibited degrees of marriage. Yisraeli's²² ruling likewise extends to these areas.

Yisraeli²³ also rules that one should assume that a man would want his cryopreserved sperm (or pre-embryos) to be used only by a man trying to procreate children who are halakhically his; hence once he has died there is no legitimate possible use for the cryopreserved material unless he has explicitly expressed his wishes to the contrary In his view, Halakha therefore mandates that the sperm or pre-embryos be destroyed, any contrary wishes of the widow or anyone else notwithstanding. This stands in contrast to the position of the American Fertility Society³ that "The fact that a spousal relationship existed before the preservation of the semen specimen and before the husband's death" makes posthumous insemination ethically acceptable.

The Code of Practice that accompanies the Human Reproductive Technology Act (1991) of Western Australia and the German Law for the Protection of Embryos (1991) prohibit knowingly using sperm in an artificial fertilization procedure after the death of the gamete provider. The Constitutional Council of the French Republic²⁷stipulated that the man and woman of constituting the couple requesting artificial insemination or in-vitro conception should both be alive." Fadel²⁸ notes that in Islamic law assisted reproductive technologies are allowed only in the context of an intact marriage, during the life span of the marriage when both partners are alive.

The Legal Status of Cryopreserved Pre-embryos

Couples undergoing fertility therapy often cryopreserve pre-embryos for future use. At times, such as in the case of subsequent divorce, the couple disagree as to the disposal of the cryopreserved material. For example, in Davis v. Davis²⁹ the central issue in the divorce case was the disposition of seven pre-embryos which were cryopreserved following the couple's last IVF attempt. The wife wanted to implant them over the objections of her estranged husband.

The trial court held that these seven frozen entities were human beings, that life began at the moment of conception, and that the Davises had accomplished their goal of creating life. The court further held that the state had an interest in protecting the "life" contained in the pre-embryos, and, to promote their interest, awarded the wife temporary custody so that she could implant.

The Tennessee Court of Appeals³⁰ reversed, holding that the pre-embryos were not persons entitled to the protection of the court. In this, the Court reached a conclusion identical to that of Halakha.

The Ethics Committee of the American Fertility Society^{1, 3} holds that the pre-embryo deserves respect greater than that accorded to human tissue because of its potential to become a person but not the respect accorded to actual persons. Halakha in many ways holds such a position with regard to embryos themselves, allowing them to be aborted under a variety of circumstances, but not capriciously, as Bleich³¹ summarizes. But, as Eliyahu,³² Halevi,³³ and Bleich³⁴ have noted, cryopreserved pre-embryos which are not destined for implantation have no standing as fetuses in Jewish law and may be discarded. Generally, Sabbath prohibitions may be set aside to save human life but not property; embryos developing to full human status are also protected this way. However, as Eliyahu,³² Halevi³³ and Wosner³⁵ rule, pre-embryos do not enjoy this protection and may not be saved at the expense of violating the Sabbath.

The Tennessee Court of Appeals²⁹ also held that the pre-embryos were property, awarding the Davises joint control. The Tennessee Supreme Court³⁶ affirmed the Appeals Court decision, but moved somewhat away from the ruling that the pre-embryos were property, holding that they occupied an interim category that entitled them to special respect because of their potential for human life. The Supreme Court held that such disputes should be decided first on the basis of the existing contract agreement. If no prior agreement exists between the progenitors as to disposition of the pre-embryos, then relative interests of the parties in using or not using the pre-embryos must be weighed if a dispute arises as to custody.

In demanding the posthumous destruction of cyropreserved material even in conflict with the wishes of the heirs, Yisraeli has not necessarily ruled that this material is not property. He is apparently relying on a more general principle that anyone may destroy any property for which there is no licit possible use. Indeed, in a different context Yisraeli rules that pre-embryos are indeed property subject to contract law.

In 1991, Ruth Nahmani, an Israeli, underwent hysterectomy. In anticipation of the surgery, she and her husband Dani fertilized preembryos in vitro with the intention of gestating them in a surrogate in California and adopting them after birth. The couple were subsequently estranged, but Ruth wanted to continue with the surrogacy arrangement despite Dani's objection, claiming that at her age this was the only possibility for her having a biological child.

The Israeli district court in Haifa³⁷ ruled in favor of Ruth, holding that just as a husband cannot prevent his wife from having an abortion, he cannot intervene once he has given his initial consent to the procedure. Dani appealed to the Israeli Supreme Court, arguing that his initial agreement presumed a stable family which was no longer a reality. He claimed that he should not be forced to become a parent against his will, and that the analogy to abortion rights is flawed because the current situation does not involve the question of the autonomy of a woman over her body.

The Supreme Court³⁸ held 4-1 in Dani's favor. The imposition of parenthood was against the public interest and acceptable judicial policy. The contract between the parties was of a special nature, involving intimate relationships between the parties. It could not be enforced under regular contract law. (An anology would be a contract to marry.) Dani could not be held to his original consent to the process as the basic change in the relationship between the parties had fundamentally altered it. While the pre-embryo should be respected for its potential to develop into a human, it has no right to life that the State will protect. The minority held that forcing childlessness on a women violated her basic rights and protecting that right took precedence over protecting the right of a person to not have fatherhood forced on him.

Offering a halakhic analysis of the Nahmani case, Shafran³⁹ applies halakhic contract/ property law. He notes that when two individuals pool their resources to accomplish an agreed goal, Halakha allows neither to withdraw arbitrarily; he therefore rules in favor of Ruth.

Yisraeli⁴⁰ notes that there is a long-standing halakhic debate on whether embryos constitute property, but limits that debate to embryos which can develop into humans without outside intervention. This does not include pre-embryos, which, he agrees, should be judged by property/ contract law. However, he sees implied in the agreement between the Nahmanis an assumption that their child be raised in the context of their stable marriage. As the divorce of the Nachmanis makes this an impossibility, Yisraeli therefore rules in favor of Dani withdrawing his agreement. Moreover, he would automatically void any agreement to implant the pre-embryos in a non-Jewish surrogate, as the resulting child would be a non-Jew having no halakhic relationship to its genetic father.

Conclusion

In general, contemporary Jewish law and ethics welcomes the use of cryopreservation of sperm and pre-embryos to the extent that they are used within the context of a traditional marriage or as the only alternative to procreation within an anticipated marriage. It does not approve of electroejaculation for retrieval of sperm from brain dead individuals. Contrary to the position of the American Fertility Society, it rejects the use of a husband's cryopreserved sperm after his death without his explicit approval. Halakha accepts the position increasingly adopted in secular society that the genetic father is not considered the legal father of a child born from sperm inseminated or a pre-embryo or semen implanted after the donor has died.