Academic journal article The Journal of Gender, Race and Justice

Fruit of the Womb: Artificial Reproductive Technologies & Jewish Law

Academic journal article The Journal of Gender, Race and Justice

Fruit of the Womb: Artificial Reproductive Technologies & Jewish Law

Article excerpt

I. BE FRUITFUL AND MULTIPLY

The tenets of Judaic law,1 or halakha, govern decisions, acts, and practices of observant Jews in their daily lives, from birth to death. Halakha represents a legal system based on Scripture and thousands of years of subsequent commentaries, which serves as a guide for living in a modern world. For instance, there are dietary rules, codes for dress and modesty, laws concerning marital relations, highly specific directives regarding the Sabbath day, and guidelines defining the beginning and end of life. Modern reproductive science is opening doors to novel situations that ancient texts seemingly cannot address. When we delve deeply into Scripture, however, we can in some instances, interpret religious directives in light of new technologies. From some perspectives, halakha may appear to govern a rigid and unbending approach to life choices. Yet, with regard to reproductive science and advances, rabbinic interpretation of Jewish law has been extraordinarily accepting of the use of technology to support conception. This paper will address halakhic responses to artificial reproductive technologies and will show that rabbinic sources have, within the framework of Jewish law, striven for and in many cases achieved remarkable flexibility, enabling the application of modern medical interventions for reproductive purposes.

A. The Ancient Commandment to Reproduce

"Be fruitful and multiply, fill the earth and subdue it . . . ."2

With these words, the Bible commanded humankind to populate the world and to use ingenuity, power, and technology to subdue and control the world. Thus, in this verse there is a directive regarding reproduction, and in case natural reproduction does not succeed, the verse tacitly approves assisted reproduction. "Be fruitful and multiply"3 serves as the cornerstone of the obligation and need of Jews to reproduce. According to biblical accounts, the commandment to have children is the first commandment that God gave to Adam after his creation. Isaiah 45:18 presents a similar directive that reads: "He did not create the world to be desolate, but rather inhabited."4 Since God specifically charged Adam to "[b]e fruitful and multiply," that positive commandment has been interpreted as referring to the male's obligation to reproduce. Similarly, the quote from Isaiah, which many interpret as pertaining to both men and women, includes women in the obligation to populate the world.

The implied flexibility of the Torah regarding assisted reproduction is not surprising. After all, three out of four biblical Matriarchs suffered from infertility. Genesis documents in detail the sufferings of Sarah, Rebecca, and Rachel due to infertility, which provided much of the human drama in the relationships between the Matriarchs and their husbands, and the Matriarchs and God. Infertility was not only a painful and tragic experience for the Matriarchs, as it continues to afflict many Jewish couples today. The infertility rate for couples of all ages in the general population is estimated to be approximately 20%; that is to say, 20% of couples are unable to conceive after one year of trying.5 When older women are considered, infertility is more prevalent. More than a third of women in their late thirties will fail to get pregnant within one year of trying.6 Infertility is thought to be higher than average for Jewish couples, since there is a tendency for women to delay pregnancy until graduate or professional studies are completed, and Jewish women pursue graduate studies at higher rates than the general population.7

Although the biblical instances of infertility appeared to be cases of female infertility, the cause of infertility among Orthodox Jewish couples today may be more commonly due to male factors. Dr. Vincent Brandeis, who runs fertility centers in New York State, has estimated that in 60% of Orthodox couples, infertility is due to problems with sperm quality.8 This contrasts with the general population in which estimates of male factor infertility range from forty to fifty percent. …

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