Assisted Reproduction in Jewish Law
Sinclair, Daniel B., Fordham Urban Law Journal
I. ARTIFICIAL INSEMINATION USING THE HUSBAND'S SPERM ("AIH"): JEWISH AND CATHOLIC POSITIONS
This Section is devoted to a survey of Jewish law, or halakhah, in relation to AIH, and a comparative discussion of Jewish and Catholic approaches to reproductive technology in general. AIH accounts for a small proportion of artificial insemination cases, and is recommended in situations where the husband suffers from anatomical defects of his sexual organ or from severe psychological impotence. It is also used, although rarely, where the husband has a low sperm count. Occasionally, AIH may be recommended if the husband is scheduled to undergo medical treatment that will render him infertile or is likely do so.
AIH is permitted by a majority of halakhists. (1) The minority opposition argues that AIH breaches the halakhic prohibition on seed destruction. (2) According to the minority view, any sexual act in which the husband does not ejaculate directly into his wife's reproductive tract is considered seed destruction, and must be avoided. (3) In accordance with this definition, the collection of semen for the purpose of artificial insemination runs afoul of the prohibition on seed destruction. Another argument used by these authorities against AIH is the concern that the husband's sperm might be replaced, either inadvertently or by design, with that of a stranger, with the result that the legal status of the child will be seriously compromised. (4) It is important to emphasize that there is no specific mention amongst the prohibitionists of any opposition to AIH on the grounds that it offends against the natural order of things.
Those who permit AIH do not find it difficult to overcome these objections. Regarding the prohibition of seed destruction, the permissive scholars maintain that if the goal of the procedure is to bring a child into the world, it is halakhically irrelevant that in the course of achieving that goal there is a break between the ejaculation of the semen and its entry into the female reproductive organ. Indeed, some semen always goes to waste, even in the course of "natural" sexual relations. Regarding the concern of sperm replacement, it is well established, on the basis of general halakhic principles, that the mere fear of such a scenario is not sufficient to prohibit an otherwise halakhically permitted procedure, especially when the object of the procedure is as worthy as the establishment of a family. (5) In any case, it is possible to take measures to ensure that mix-ups are minimized. To this end, there are now trained supervisors available in a number of clinics used by observant Jews, who have the responsibility of ensuring that no foreign semen enters the procedure from the point of collection until insemination. (6)
On the assumption that AIH is permitted, especially in relation to a couple for whom it is the only method for having children, the most halakhically acceptable method for collecting the semen would need to be worked out in consultation with a halakhic authority. (7) Halakhic consultation would also be required when there is a possibility that in order to achieve conception, the insemination must take place during the wife's menstrual period, during which intercourse between her and her husband would be forbidden under Jewish law. (8)
A question that arises in relation to AIH is whether it constitutes fulfillment of the biblical commandment to "be fruitful and multiply." (9) Some authorities maintain that because sexual intercourse is a vital ingredient in the performance of this commandment (mitzvah), having a child through AIH does not constitute fulfillment of the obligation. (10) The competing view is that the essence of the obligation lies in the production of live progeny, and the process is irrelevant. According to this view, the biblical commandment to procreate is, indeed, fulfilled by a husband who inseminates his wife in an artificial manner. …