EL ABORTO EN LAS FUENTES JUDIAS
A. SHEMOT 21:12
B. Rab Eliyahu Mizrahi
A. MISHNA OHALOT 7:6
B. SANHEDRIN 72
C. RASHI – YATZA ROSHI
A. PEREK 1:9 – HALAJOT ROTZEAJ
B. JIDUSEHI RABEINU JAIM DAVID HALEVI AL RAMBAM
• EL MATAR A UN NINO QUE AUN NO HA NACIDO, ES CONSIDERADO UN PECADO CAPITAL?
• CUALES SON LOS PARAMETROS DE UN ABORTO TERAPEUTICO?
Eres una joven mujer, no sabes que hacer. Sabes que es una gran decisión por el dano emocional que te puede causar y por las implicaciones morales.
Se llama matar o no? Tiene el estatus de una vida humana?
Cuando se forma la cabeza se llama un ser humano completamente vivo, antes de eso es vida parcial.
Se puede destruir una vida parcial?
Se puede remover escombros por safek si hay alguien que se le puede prolongar la vida, porque la duda de una vida parcial tiene un valor infinito. Guemara Shabat.
Esto aplica a un feto igualmente.
El aborto esta prohibido por el judaismo. Sanedrín 59a
Pueden haber excepciones cuando una vida parcial pone en peligro a una vida completa. Si sigue con el embarazo la madre va a morir. Se mata al feto para salvar a la mama. Guemara.
Como sabes donde pasar la linea? A que se le llama que pone en peligro a la madre?
Le va a alterar la condicion del corazon o se va a quedar ciega, no hay discussion.
Que hay con dano a su salud emocional? Si la mama fue violada, y el pensar que va a tener a ese nino le va a causar un break down nervioso y un trauma emocional.
Hay otros factores, si esta dentro de los primeros 40 dias, pero cada caso hay que preguntar a un Rabino.
* * *
2 millones de abortos anuales en USA el 75% se atribuye a conveniencia, no se ha graduado de la universidad, le incomoda con el trabajo, no tiene plata para mantenerlo.
Esas son rezones inaceptables. Si un papa se pone Viejo y necesita una medicina muy cara, lo matarias por consideraciones financieras?
Si tiene defectos, algunos dicen que le salva de una pobre calidad de vida.
Si la mama de Stephen hawking hubiera decidido abortar, que hubiera sido del astrofisico numero uno del mundo que esta casi completamente paralizado.
Cada vez que alguien pierde un organo en un accidente decides matarlo?
Retardo mental? Lo bajo que sea un iq amerita aborto.?
Esto se parece al programa nazi T4 que sistematicamente mataba a todas las personas invalidas fisica y mentalmente.
No podemos evaluar el ultimo bien. Somos sujetivos, lo difícil que es tener y educar a un nino asi. Pero en el sentido espiritual puede tener una unica y muy especial mision, que no sabemos en este mundo. Igrot Moshe Joshen Mishpat 2;69
El valor de la persona es su alma. El Jazon Ish se lebantaba frente a personas con síndrome de down, decia que para haberle dado semejantes limitaciones su alma debe ser muy grande, venir a este mundo a completar el proceso de perfección de esa manera.
* * *
Porque si esta moralmente claro hay tanto debate?
Les es difícil aceptar responsabilidad de las consecuencias de sus actos.
Cuando un hombre y una mujer tiene relaciones hay varios peligros involucrados, trasmisión de enfermedades, amare emocional, embarazo.
Abortion in Jewish Law
by Daniel Eisenberg, M.D.
The traditional Jewish view of abortion does not fit conveniently into any of the major “camps” in the current debate over abortion.
As abortion resurfaces as a political issue in the upcoming U.S. presidential election, it is worthwhile to investigate the Jewish approach to the issue. The traditional Jewish view of abortion does not fit conveniently into any of the major “camps” in the current American abortion debate. We neither ban abortion completely, nor do we allow indiscriminate abortion “on demand.”
A woman may feel that until the fetus is born, it is a part of her body, and therefore she retains the right to abort an unwanted pregnancy. Does Judaism recognize a right to “choose” abortion? In what situations does Jewish law sanction abortion?
To gain a clear understanding of when abortion is permitted (or even required) and when it is forbidden requires an appreciation of certain nuances of halacha (Jewish law) which govern the status of the fetus.1
The easiest way to conceptualize a fetus in halacha is to imagine it as a full-fledged human being — but not quite.2 In most circumstances, the fetus is treated like any other “person.” Generally, one may not deliberately harm a fetus. But while it would seem obvious that Judaism holds accountable one who purposefully causes a woman to miscarry, sanctions are even placed upon one who strikes a pregnant woman causing an unintentional miscarriage.3 That is not to say that all rabbinical authorities consider abortion to be murder. The fact that the Torah requires a monetary payment for causing a miscarriage is interpreted by some Rabbis to indicate that abortion is not a capital crime4 and by others as merely indicating that one is not executed for performing an abortion, even though it is a type of murder.5 There is even disagreement regarding whether the prohibition of abortion is Biblical or Rabbinic. Nevertheless, it is universally agreed that the fetus will become a full-fledged human being and there must be a very compelling reason to allow for abortion.
As a general rule, abortion in Judaism is permitted only if there is a direct threat to the life of the mother by carrying the fetus to term or through the act of childbirth. In such a circumstance, the baby is considered tantamount to a rodef, a pursuer6 after the mother with the intent to kill her. Nevertheless, as explained in the Mishna,7 if it would be possible to save the mother by maiming the fetus, such as by amputating a limb, abortion would be forbidden. Despite the classification of the fetus as a pursuer, once the baby’s head or most of its body has been delivered, the baby’s life is considered equal to the mother’s, and we may not choose one life over another, because it is considered as though they are both pursuing each other.
It is important to point out that the reason that the life of the fetus is subordinate to the mother is because the fetus is the cause of the mother’s life-threatening condition, whether directly (e.g. due to toxemia, placenta previa, or breach position) or indirectly (e.g. exacerbation of underlying diabetes, kidney disease, or hypertension).8 A fetus may not be aborted to save the life of any other person whose life is not directly threatened by the fetus, such as use of fetal organs for transplant.
Judaism recognizes psychiatric as well as physical factors in evaluating the potential threat that the fetus poses to the mother. However, the danger posed by the fetus (whether physical or emotional) must be both probable and substantial to justify abortion.9 The degree of mental illness that must be present to justify termination of a pregnancy has been widely debated by rabbinic scholars,10 without a clear consensus of opinion regarding the exact criteria for permitting abortion in such instances.11 Nevertheless, all agree that were a pregnancy to causes a woman to become truly suicidal, there would be grounds for abortion.12 However, several modern rabbinical experts ruled that since pregnancy-induced and post-partum depressions are treatable, abortion is not warranted.13
As a rule, Jewish law does not assign relative values to different lives. Therefore, almost most major poskim (Rabbis qualified to decide matters of Jewish law) forbid abortion in cases of abnormalities or deformities found in a fetus. Rabbi Moshe Feinstein, one the greatest poskim of the past century, rules that even amniocentesis is forbidden if it is performed only to evaluate for birth defects for which the parents might request an abortion. Nevertheless, a test may be performed if a permitted action may result, such as performance of amniocentesis or drawing alpha-fetoprotein levels for improved peripartum or postpartum medical management.
While most poskim forbid abortion for “defective” fetuses, Rabbi Eliezar Yehuda Waldenberg is a notable exception. Rabbi Waldenberg allows first trimester abortion of a fetus that would be born with a deformity that would cause it to suffer, and termination of a fetus with a lethal fetal defect such as Tay Sachs up to the seventh month of gestation.14 The rabbinic experts also discuss the permissibility of abortion for mothers with German measles and babies with prenatal confirmed Down syndrome.
There is a difference of opinion regarding abortion for adultery or in other cases of impregnation from a relationship with someone Biblically forbidden. In cases of rape and incest, a key issue would be the emotional toll exacted from the mother in carrying the fetus to term. In cases of rape, Rabbi Shlomo Zalman Aurbach allows the woman to use methods which prevent pregnancy after intercourse.15 The same analysis used in other cases of emotional harm might be applied here. Cases of adultery interject additional considerations into the debate, with rulings ranging from prohibition to it being a mitzvah to abort.16
I have attempted to distill the essence of the traditional Jewish approach to abortion. Nevertheless, every woman’s case is unique and special, and the parameters determining the permissibility of abortion within halacha are subtle and complex. It is crucial to remember that when faced with an actual patient, a competent halachic authority must be consulted in every case.
1 While there is debate among the Rabbis whether abortion is a Biblical or Rabbinical prohibition, all agree on the fundamental concept that fundamentally, abortion is only permitted to protect the life of the mother or in other extraordinary situations. Jewish law does not sanction abortion on demand without a pressing reason.
2 Igros Moshe, Choshen Mishpat II: 69B.
3 Shulchan Aruch, Choshen Mishpat, 423:1
4 Ashkenazi, Rabbi Yehuda, Be’er Hetiv, Choshen Mishpat 425:2
5 Igros Moshe, ibid
6 Maimonides, Mishneh Torah, Laws of Murder 1:9; Talmud Sanhedrin 72B
7 Oholos 7:6
8 See Steinberg, Dr. Abraham; Encyclopedia of Jewish Medical Ethics, “Abortion and Miscarriage,” for an extensive discussion of the maternal indications for abortion.
9 Igros Moshe, ibid
10 See Encyclopedia of Jewish Medical Ethics. P. 10, for references.
11 See Spero, Moshe, Judaism and Psychology, pp. 168-180.
12 Zilberstein, Rabbi Yitzchak, Emek Halacha, Assia, Vol. 1, 1986, pp. 205-209.
13 Rabbi Shlomo Zalman Aurbach and Rabbi Yehoshua Neuwirth cited in English Nishmat Avraham, Choshen Mishpat, 425:11, p. 288.
14 Tzitz Eliezer, Volume 13:102.
15 Rabbi Shlomo Zalman Aurbach and Rabbi Yehoshua Neuwirth cited in English Nishmat Avraham, Choshen Mishpat, 425:23, p. 294.
16 See excellent chapter in English Nishmat Avraham, Choshen Mishpat, 425 by Dr. Abraham Abraham, particularly p. 293.
– Mishnah – Ohalot 7:6
– Maimonides – Laws of Rotzeach 1:9
– Code of Jewish Law C.M. 425:2
– Rabbi Moshe Feinstein – “Igrot Moshe” E.H. IV 10, and C.M. II 69-70
– Rabbi Ovadia Yosef – “Yabia Omer” IV E.H. 1
– Rabbi Moshe Sternbuch – “Teshuvot V’Hanhagot” I 880; II 731, 734, 737; III 359
On the emotional side, I recommend an article written by the father of a handicapped boy. He asks: “Everything that God does is done with perfection. But my child cannot understand things as other children do. My child cannot remember facts and figures as other children do. Where is God’s perfection?”
The father then recounts an incredible story to show how when God brings such a child into the world, the perfection He seeks is in the way people react to this child. It’s a great, inspiring story, that you can read online at: http://www.innernet.org.il/archives/baseball.htlm
• Iggrot Moshe, Orach Chaim, vols. 1 & 4; & Choshen Mishpat, vol. 1.
• Shulchan Aruch, Orach Chaim 306:6
• Maimonides, Hilchot Melachim 9:4
• Tractate Shavuot 30a
Diario de un bebé
Hoy he recibido un regalo de mis padres: mi vida. Ellos aún no lo saben, pero cuando se enteren, sus corazones se llenarán de felicidad. En este momento, soy solo una pequeñísima célula, pero ya tengo todas mis futuras características: el color de mi piel, de mis ojos, de mi cabello, mi altura, mi carácter, mi inteligencia, etc.
Ha pasado una semana, y ya no soy una célula única. Cada día adquiero nuevas células y espero ansiosamente desarrollarme. Pronto mis células se convertirán en tejidos y éstos en órganos.
Dos semanas han pasado desde el comienzo de mi vida. Mi mamá aún no sabe que existo. Mientras tanto, ya comienza a desarrollarse mi sistema circulatorio. Mamá continúa con sus actividades normales y no siente aún el milagro que está ocurriendo dentro de su cuerpo.
Creo que hoy mamá se ha dado cuenta que existo. Siento su estado de ansiedad. El ciclo se atraso y cuenta los días. Si pudiera solo abrir mi boquita que recibí esta semana, le gritaría: “mamá, estoy acá!”
Hoy cumplo 4 semanas. Mamá aún no decidió hacerse un exámen de embarazo. Mientras tanto mi corazón se contrae y hace circular la sangre a través de mis pequeños vasos sanguíneos.
El tiempo corre, y mi desarrollo es aún más rápido. En las últimas dos semanas he comenzado a moverme, y ya tengo un cerebro que me permite sentir, mover mis piernas, manos y dedos: “Mamita, cuándo me sentirás?”
Hoy cumplo 8 semanas. Mamá ya sabe, y está muy nerviosa. Estaba seguro que la novedad la va a hacer felíz. Sé que le preocupa la situación económica. Pero, si supiera qué cosa dulce se desarrolla dentro de su cuerpo, seguro se alegraría. Yo, al menos, me siento muy bien, nado casi sin descanzar mientras tanto se desarrolla mi cuerpo.
Han pasado ya 10 semanas. Mamá decidió que no quiere el embarazo. Mamá no comprende que este “embarazo” soy yo. Ya se comunicó con un médico para que suspenda mi vida. Tengo mucho miedo. Si pudiera le gritaría: “no me quieres?”. Hoy vió en el ultrasound que ya soy un pequeño bebé completo con todos los órganos. Si supiera qeu me van a fotografiar, hubiera sonreído…
Hoy fui con mi mamá al Comité de Interrupción de Embarazo. Qué podía yo hacer? en pocos minutos, mi destino fue decidido. Quisiera decirles “Esperen, ¿Dónde está mi abogado?”, pero nadie me escuchó. Mamá cree que su decisión de terminar mi vida es correcta. Mamá quisiera que llegue al mundo en un momento más adecuado. Pero ahora yo ya existo, ya soy alguien, y ella debería ante todo considerar mi vida…
Ya hay fecha para interrumpir mi vida. En este momento, siento lo impotente y desgraciado que soy. Quisiera preguntar: “por qué los seres humanos tienen piedad a las plantas y a los animales, en cambio los embrionescomo yo son abandonados por completo. Soy menos importante que una planta? Mi única esperanza es, que a último momento aparezca alguien que explique a mamá, que es lo que va a perder, y quizas alguien que ayude economicamente a mis padres en sus momentos difíciles…
Mañana es el día de mi sentencia.
En el hospital ya nos esperan.
Este es mi último día.
Mamita, te pido piedad.
Si no los vas a hacer, nunca te
arrepentirás! En mi último momento
de vida, te pido:
• When does life begin? Conception, Quickening, Ensoulment, Birth
• If life begins before birth, what rights should that life have vis-?-vis the mother? If life does not begin until birth, should we say that the potential life has rights?
• Should a person who injures an expectant mother and causes her to have a spontaneous abortion be adjudged a murderer? (Keeler v. Superior Court of Amador County, 470 P.2d 617 (1970) versus Commonwealth v. Lawrence, 536 N.E.2d 571 (1989)).
• Should an expectant mother who uses crack during her pregnancy be prosecuted for child abuse, when that child is born drug dependent? (Whitner v. State, No. 2446 (S.C. Oct. 27, 1997)).
• Should abortion be available at the will of the mother or should that right be conditional? If so, what conditions? How does the answer to this question relate to the previous two questions?
• Close to 1.5 million abortions are performed annually in the US.
• Abortion is perhaps the most hotly contested political issue in contemporary politics.
o Activists on both sides see the world through a single lens.
o Both sides of the debate threatened the RCA with retribution.
• Catholic Doctrine (Conception & Baptism)
o One who performs an abortion is subject to automatic excommunication.
o The current state of canon law holds that the prohibition begins at conception, but a various times in Church history, the prohibition took effect only at “animation” or at “ensoulment.”
o Abortion is permitted to save the life of the mother under the doctrine of “double effect.”
• Common Law/English Law
o At early common law abortion was viewed as a felony and a capital offense.
o Later common law distinguished between abortions at the pre- and post-quickening stages.
o The Offenses Against the Person Act, 1861, viewed abortion as a felony and made no distinction in terms of quickening.
o The Abortion Act of 1967, while maintaining the general prohibition of abortion, included various exceptions for mental and physical “health.” As a result, abortion is generally permitted in the UK.
• Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court held that the 14th Amendment encompassed a right to privacy, which included a woman’s qualified right to terminate her pregnancy. As a fundamental right, state regulation of abortion was subject to the “strict scrutiny” of judicial review, meaning a state must have a compelling interest in restricting abortion. In defining a woman’s right to abortion, the court adopted a trimester scheme to evaluate whether the state’s interests were compelling:
o During the first trimester the state’s interest in the life/health of the mother and the potential life of the fetus was not compelling enough to regulate abortion. Thus, a woman was essentially free to elect an abortion during this period.
o During the second trimester the state’s interest in the health of the mother grew, and the state was permitted to regulate procedures in such a way as to promote maternal health.
o In the last trimester, the potential life of the fetus was deemed viable, and the state’s interest in it became compelling. Therefore, a state could proscribe abortion at this time, provided that it permits an exception for the life and health of the mother.
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). The Supreme Court upheld the essential rulings of Roe (that a woman has the right to choose a pre-viability abortion without undue interference) but allowed states greater latitude in regulating abortion. Significantly, the court struck down Roe’s trimester scheme, holding that the only critical distinction was whether the fetus was viable. In addition, the Court loosened its standard of review of pre-viability abortions from “strict scrutiny” to an “undue burden” test, meaning that state statute’s were unconstitutional where they had the purpose or effect of placing a “substantial obstacle” in the woman’s path of electing an abortion. The Court reiterated that bans on post-viability abortions were constitutional, so long as they provided exceptions for the life and health of the mother. Pre-viability regulations could include:
o Parental consent requirements for minors, as long as there is a judicial bypass option
o Limited waiting periods
o Informed consent and counseling
o Record keeping
• Stenberg, Attorney General of Nebraska v. Carhart (2000). In this recent pronouncement, the Supreme Court struck down a state law banning the use of a certain type of abortion technique – the partial birth abortion. The law applied to both pre-and post-viability abortions. The Court viewed the law as unconstitutional, because it contained no exception for the health of the mother (only for the life of the mother) and because the ban placed an undue path in the woman’s right to choose an abortion.
ZOHAR, SHEMOT 3b: There are three [persons] who drive away the Devine Presence from the world, making it impossible for the Holy One, blessed be He, to fix His abode in the universe and causing prayer to be unanswered … [the third one is] he who causes the fetus to be destroyed in the womb….
NON-JEWS – NOACHIDE LAWS
• Gen 9:6 – He who spills the blood of a person within a person [is a murderer]
• Sandedrin 57b – R’ Yismael states that this refers to the prohibition of abortion, and it is a capital offense.
What prohibition does abortion implicate?
Abortion is clearly not a capital crime.
• Ex 21:22-23: When two men fight and accidentially harm a pregnant woman, causing her to miscarry. If there is no fatal injury to the woman, the guilty party must pay compensation.
• Ex 21:12: He that kills a man shall surely be put to death. Mekhilta & Sanhedrin 84b – a man not a fetus
• Tosfot Nida 44b – Abortion is not murder (R’ Moshe says this Tosfot is a printing error)
Abortion is akin to murder and is prohibited from the Torah.
• Tosfot Hullin 33a – Is there anything that would be forbidden to a ben Noah, and yet permitted to a Jew?
§ However, Tosfot clearly indicates that abortion is not a capital offense for Jews. If so, what differentiates the Noachide laws?
• A technicality – no warning
Abortion is akin to murder but a rabbinic prohibition (R’ Aharon Shmuel Koidonover)
Abortion is not murder but prohibited by the Torah as Hashchatat Zera, wasting seed/potential life (Havot Yair)
Abortion is not murder but Chavala, wounding. (Maharit)
• Deut 25:3 – This verse prohibits excessive physical punishment by a court and by extension any unwarranted physical injury.
• Mishna Arachin 1:4: “If a woman is about to be executed, one does not wait until she has given birth.” Therefore, according to the Maharit, killing a fetus cannot be murder.
Lo taamod al dam re’echa (Don’t stand on your brother’s blood)
Hashavat Aveida (A person is obligated to return lost objects)
Within 40 day
• Yevamot 69a – Rav Hisda allows a widowed bas Cohen to eat trumah (sanctified produce, which only priests and their family members are permitted to eat) in her father’s house.
• Mishna Nidda 30a – A miscarriage within 40 days does not engender the tuma (a type of spiritual impurity) accompanying childbirth.
What is the implication of a fetus being just water?
• No murder
• For a non-Jew, there is no prohibition. (Ramban, R’ Unterman)
R’ Chaim Ozer, within 40 days the prohibition is rabbinic
• No chavala to fetus
• Still chavala to Mother
• For Hashchatat Zera, there is no difference.
• Lo Taamod
• Hashavas Aveida
How are these principles applied?
Abortion is permitted when the life of the mother is at stake (her life takes precedence):
• Ohalot Mishna 7:6 – The woman having difficulty in labor – cut up the fetus inside of her and remove it limb by limb, because her life take precedence over its life. Once most of it emerges [generally understood as when most of the head emerges], do not harm it, because we do not set aside one life for another.
• Rashi – the fetus is sacrificed because though it has a claim to life sufficient to make its indiscriminate destruction an offense, its status of human life is not equal to that of the mother.
• This is mandatory not permissive.
• What distinquishes the final stage?
• Saahedrin 72b – Pursued by heaven
• Rambam – Natural course
• What if both will certainly die if nothing is done? (Look at the issue of specified versus guilty in the case of Sheva ben Bichri)
• Rambam Hilchot Roze’ah 1:9
It is a negative precept not to have compassion on the life of the pursuer. Therefore, the Sages ruled regarding a pregnant woman in hard travail that it is permitted to dismember the fetus in her womb, whether by chemical means or by hand, for the fetus is as one pursuing her in order to kill her; but if it has already put forth its head it may not be touched for one life may not be set aside for the sake of another, and this is the natural course of the world.
• Abortion is akin to murder and therefore needs the justification of the pursuer (and the laws of the pursuer are applied by analogy).
• R’ Chaim Soloveichik – abortion is only permitted in a case similar to that of a rodef, where the fetus threatens the life of the mother.
• R’ Chiam Ozer – Rambam understands the case with regard to a woman already in labor, where the fetus is separating from the mother and thus has a separate claim to life. Prior to this, one need not refer to the law of pursuit.
• Shulchan Aruch HM 425:2 – [Having reviewed the law pertaining to obligation to save a person from a pursuer in the previous section…] Therefore, a woman who is pregnant and having difficulty in labor, it is permitted to cut up the fetus whether by hand or by chemical means, because it is like one pursuing to kill her, and if its head has emerged, do not touch it, because we do not set aside a life for a life and this is the nature of the world.
• The question is how far does this principle – that her life takes precedence – extend.
What’s the practical difference regarding how abortion is classified.
• WWI German officer case
• If akin to murder then the doctor has a problem.
• R’ Unterman says, even so, the mother’s blood is redder.
• Extreme medical need of the mother which is not life threatening:
• R’ Y. Emden (permits in cases of extreme pain); R’ Uziel (permits if the pregnancy will result in the mother’s deafness)
• Dissenting views
• Psychiatric Grounds § Where the mother may become mentally deranged, many authorities consider this a risk to the life of the mother and permit an abortion on this basis (Note – this is an extreme case and must be judged by a competent authority based on the specific facts of a specific case).
• R’ Waldenberg
• Based on R’ Emden and the Maharit, Abortion is permitted in a case of tremendous need. (Again, each case must be judged on an individual basis.)
• In such a case, the abortion is best done by a Jew, a woman, and before 40 days.
• In any event, R’ Waldenberg cautions against reading his opinion too broadly, and he quotes the Zohar, which he says should send chills down the back of one who contemplate permitting an abortion. Furthermore, he definitely would not permit in cases of convenience or for pregnancies resulting from immodest sexual activities.
• R’ Moshe absolutely prohibited in such cases as murder. He permits only in a case of Pikuach Nefesh.
• Rape, incest, adultery
• Adultery – Havot Yair prohibits; R’ Emden permits.
• Incest – Probably, this is the same as adultery.
• Rape – Perhaps R’ Waldenberg would permit.
The Preembryo in Halacha
Rabbi Yitzchok Breitowitz
The development of new reproductive technologies over the past 15 or so years has offered great hope to many infertile couples. Along with the blessings they bring, however, these technologies are also a source of major ethical dilemmas. For the Jew whose every decision is guided by the Davar Hashem, it is the halacha to which he or she must turn. The specific topic of this paper concerns the halachic status of the preembryo, a particular configuration of human cells that did not really exist in externalized form until the advent of in-vitro fertilization (IVF) in the late 1970’s.1
In-vitro fertilization may exist in various forms but at its simplest, it involves the extraction of immature eggs (oocytes) from a woman’s ovaries, the placement of those eggs in a petri dish which is supplied with nutrients, the obtaining of sperm from a donor, the fertilization of the egg in the dish, the transplantation of the fertilized ovum into the woman’s uterus (usually at the 48-72 hour developmental stage)2. If all goes well, the embryo will implant and a pregnancy will ensue and be detectable within 10-14 days after the transfer. Since the procedure was first introduced in 1978, over 25,000 IVF babies have been born. The average take-home baby rate is 17%; 19% for women under 39, 66% for older women. “Preembryo” is the term often used for a fertilized ovum that has not yet been transferred into a uterus.
Although in the natural course of ovulation, a woman’s ovaries release only one egg at a time, the modern IVF procedure involves the extraction of multiple oocytes to raise the probability of successful fertilization.3 As a consequence, there may be several eggs that are fertilized. Multiple eggs may be transferred for implantation; cryopreserved for future use in another reproductive cycle; donated to other infertile couples; used for experimentation and research; destroyed; allowed to thaw; or just kept in storage which will effectively result in their destruction after the passage of time. At least under American law, all of these options are legal possibilities though the locus of dispositional authority in the event of disagreement has not been definitely identified.
The existence of literally thousands of preembryos in freezers raises difficult problems. What happens if both or any one of the gamete (egg or sperm) donors die? What if they get divorced? Are frozen embryos “children” subject to a custody determination or marital property? Do preembryos have inheritance rights? In light of the Jewish restrictions on abortion, must all preembryos be implanted? May they be donated? In the event of a donation (whether permissible or not), who does halacha regard as the parents? Must thawed preembryos be buried? Are they considered “human life” for purposes of chillul shabbos, etc.? What about yibum? A number of these issues have been discussed extensively; some have not.
After briefly outlining the general principles governing IVF, this article will proceed to analyze seven specific problem areas: (1) may “surplus” preembryos be destroyed; (2) may such preembryos be utilized for experimentation and research and subject to what limitations; (3) may such preembryos be donated to other infertile couples, Jewish or non Jewish; (4) may a Jewish couple utilize a donated preembryo of Jewish or non Jewish origin in their own IVF protocol; (5) does the halachic system recognize a right of compensation to the gamete providers if preembryos are wrongfully destroyed without their consent; (6) do preembryos have inheritance rights and do they “count” for purposes of yibum, chalitza, and pidyon haben; (7) who has ultimate decisional authority over preembryos if husband and wife are divorced, deadlocked, or dead. To facilitate comparison to the secular legal system, an Appendix to this article describes the status of the preembryo under American law.4
Needless to say, no statements in this article are intended to be psak halacha.
I. General Considerations on the Use of IVF Technology
The halachic literature on assisted reproductive technologies is quite large and cannot be fully surveyed here. Much of it concerns artificial insemination where either husband or donor sperm is inserted vaginally or into the uterus.5 Many of the halachic concerns with AIH, particularly those involving the methods by which sperm is procured, apply equally to in-vitro fertilization.6
Subject to careful supervision of the physician, waiting periods, and exploration of alternatives, AIH is generally regarded as a halachically permissible procedure through which paternity can be established and the mitzva of p’ru v’revu or at least lashevet can be fulfilled.7 By and large, most poskim have assimilated IVF to AIH and have permitted its utilization subject to the same limitations.8 A notable exception is Rabbi Eliezer Waldenberg who maintains that IVF is an impermissible procedure and even ex post facto one does not fulfill the mitzva of p’ru u’revu.9 He argues that IVF is more problematical than AIH in a number of distinct respects: (1) Unlike AIH where all sperm is deposited into the vagina or uterus, IVF only transfers the fertilized ova with the rest of the sperm discarded, thus violating the edict against hashchatat zera; (2) One does not fulfill the mitzva of procreation where fertilization occurs outside of the womb. This independently creates a violation of hashchatat zera; (3) There is neither a paternal or maternal10 relationship with an IVF-offspring. Rabbi Moshe Sternbuch11 also denies paternal identity in cases of IVF and consequently, prohibits the practice as violative of hashchatat zera. R. Yehuda Gershuni12 agrees with Rabbis Sternbuch and Waldenberg that there is no paternal bond between a sperm donor and an externalized embryo even if later brought to term but he nonetheless permits the procedure; since IVF does in fact result in the creation of a physical human being albeit one that is not halachically related to the genetic parents, it is a fulfillment of the prophetic statement, “He did not create the world to be void but he formed it so that it would be settled” [lashevet yatzara] (Isaiah 45:18). R. Gershuni argues that even the mere fulfillment of lashevet is enough to prevent the emission of the seed from being levatala.
As noted, Rabbis Waldenberg, Sternbach, and Gershuni are decidedly in the minority. Virtually all contemporary poskim have concluded, first, that the egg and sperm providers do have a parental relationship with an IVF – generated offspring; second, that the procedure if undertaken for procreation by an otherwise infertile couple13 does not violate the prohibitions against hashchatat zera; third, that one may fulfill from any resulting offspring either the mitzva of p’ru u’revo or at the very least, the “lesser” mitzva of lashevet.14 These will be the assumptions on which this paper is predicated.15
II. May Surplus Preembryos Be Destroyed?
In the early days of IVF, this was an especially pressing concern. Before the development of freezing techniques, there was no way to store preembryos for future use. Whatever ova were not implanted during this particular cycle would inevitably be discarded. As a result, some halachic authorities permitted IVF procedures only if all fertilized eggs were implanted. Since, however, the implantation of five, six, or seven preembryos could severely jeopardize the prospects of a successful pregnancy, this also meant that only a small number of eggs could be extracted (typically no more than four). This sharply reduced the prospects of successful fertilization in the dish necessitating repetitive IVF attempts. Insurance plans commonly did not cover IVF after two or three attempts, thereby rendering IVF a less effective procedure for Orthodox Jews.
Two technological developments have rendered these concerns less pressing. First, the development of preembryo freezing means that fertilized ova can be stored for use at a future date. Second, use of specialized ova penetration techniques (such as drilling) allows for a greatly increased probability of fertilization even with a smaller number of eggs. Nevertheless, while the practical issues are less pressing, they have not gone away; the theoretical problems of alternative disposition remain: must a fertilized egg be transferred in an attempt to achieve a pregnancy?
Issues concerning the destruction of embryonic or fetal life fall within the halachic strictures against abortion. The basic guidelines concerning abortion have been detailed in a number of places and will not be repeated here.16 Briefly, however, a number of principles bear repeating:
1. The killing of a fetus is not a capital crime, at least for a Jew.
2. Notwithstanding its exclusion from the death penalty, the vast majority of halachic authorities regard killing a fetus as a violation of Torah law. A small minority views the prohibition as purely rabbinic.17
3. The violation of feticide is committed not only by the person actually performing the procedure but, according to R. Auerbach, also by the woman who hires the physician and makes herself available for the operation. At the very least, making oneself available for an abortion would violate the prohibition of lifnei ivair – aiding and abetting a transgression whether the physician is Jewish or not.18
4. The source of the Torah prohibition is subject to disagreement.
Some opinions view abortion as form of murder [retzicha], albeit one that does not carry the death penalty similar to the case of killing a tereifah where there is a transgression of lo tirtzach without its corresponding punishment. Others view abortion as falling within the prohibition of hashchatat zera (destruction of seed) in that it wastefully destroys that which could potentially blossom into life. A third view treats “abortion” as an unjustified act of chavala (“wounding”). Within this view, there are some that regard the “chavala” in terms of the mother and others that regard the prohibited chavala as being done to the fetus. A final view would prohibit abortion as being inconsistent with the affirmative obligations to protect and preserve life and well-being, an obligation derived from “lo taamod al dam rayecha” or “hashavat aveida”.
5. The halachic theory for the prohibition would determine which extenuating circumstances may amount to a proper justification, i.e., if the issur is retzicha, abortion can be sanctioned only if the fetus qualifies as a rodef. General considerations of pikuach nefesh would not suffice. At the other extremes, considerations of chavala may be set aside by lesser concerns. Hashchatat zera and hatzala can be arguably set aside for pikuach nefesh even where the fetus does not qualify as a rodef but nothing short of pikuach nefesh would suffice.
6. The foregoing refers to abortions performed by Jews (whether to Jewish or non-Jewish fetuses).19 Abortion performed by non-Jews (whether to Jewish or non-Jewish fetuses) is a capital offense under the Seven Laws of Noach. There is considerable discussion and debate whether Noachides may perform abortions even where there is pikuach nefesh or the baby is a rodef.20
b) Abortion Prior to Forty Days
The Talmud records in a number of instances that fetal development prior to the 40th day is considered “mere water”. Thus, a miscarriage within 40 days carries no tumat leidah nor does it necessitate the bringing of a korban. A widowed bas cohen who was married to a yisrael is allowed to eat the terumah in her father’s house for forty days following her husband’s demise because even if she is pregnant, the ubar doesn’t count as an entity of disqualification. Based on those teachings, some poskim have concluded there is no issur of hapala within 40 days.21
To the extent there is an absolute heter to abort a pre-40 days embryo, there would certainly be a dispensation to destroy or discard a preembryo (regardless of how many days may have passed from fertilization) since its development has certainly not progressed to the 40-day point. In truth, however, the 40-day limit is subject to much disagreement. The argument that an embryo of less than 40 days is “mere water” is relevant to the abortion issue only if abortion is predicated either on its being murder, i.e., the taking of existing life or on its being chavala of the embryo – arguably, one cannot “wound” that which does not have the status of an existing person. The forty-day cut off is clearly irrelevant insofar as chavala of the mother is concerned. It is equally irrelevant on hashchatat zera grounds – after all, destruction of sperm is prohibited even prior to fertilization.
Moreover, the affirmative obligations of hatzala based on “lo taamod al dam rayecha” and “hashavat aveida” may apply at all stages of embryonic development. There is a disagreement among the rishonim if one is permitted to desecrate shabbat or otherwise violate the Torah in order to save or prolong the life of a fetus where the mother’s life is not endangered.22 According to some authorities, the dispensation of “V’chai Bahem” applies only to autonomous lives. The Baal Hilchot Gedolot seems to concede that the verse “V’chai Bahem” does not cover a fetus but maintains that the potential for life and future observance of mitzvot triggers the rationale of “Better that one shabbat be violated so that many other shabbatot (may) be kept.” The Behag apparently utilizes this concept as a justification for pikuach nefesh independent of the verse “and they shall live by them.” Ramban makes clear that according to Behag, no distinction should be drawn between pre-40 day and post. It is the potential for human life, not its actualization, that justifies the dispensation of pikuach nefesh. The final decision is in accordance with the Behag. Moreover, even according to those who dispute Behag, it is arguable that there may indeed be a mitzva of “lo taamod” and “hashavat gufo” even towards a fetus and even before the fortieth day but this obligation does not fall within the parameters of pikuach nefesh when such obligations conflict with other prohibitions such as shabbat. In the absence of such a conflict, all might concede the duty of hatzala. Be it as it may, however, according to the Behag, one can clearly be mechallel shabbat for a fetus less than 40 days old. It would be incongruous and illogical to permit and apparently mandate the violation of shabbat in order to save a life that one is in fact permitted to extinguish. Thus, unless chillul shabbat be termed optional, a right to chillul shabbat for life preservation should inescapably lead to a prohibition against the taking of such life.23 Note, however, that most assuredly the converse is not necessarily true; the inability to be mechalel shabbat does not automatically suggest that active termination is permitted.
Conceding, however, that abortion within 40 days is not retzicha or chavala of the child does permit consideration of other factors and mitigating circumstances that would otherwise be ignored. Thus, genetic defects or medical reasons falling short of rodef or pikuach nefesh, such as serious genetic conditions (e.g.,Tay-Sachs), may justify abortion. (What about rape, incest?)
c) Abortion Prior to Forty Days Under Noachide Law
The source of the Noachide ban on abortions is the verse “Shofeich Dam HaAdam B’Adam Damo Yishafech” (Genesis ____) which is interpreted as meaning, “He who spills the blood of a man [person] within a man [person], his blood shall be spilled.” As the Talmud points out, a “person within a person” aptly describes a fetus.24 Since, however, the Noachide prohibition is premised on there being a “person” and an embryo less than 40 days does not have the status of “personhood”, some poskim have concluded that there is no Noachide ban on feticide within 40 days;25 Noachides are enjoined only against the taking of actual life (even fetal), not potential life. The latter could be proscribed only under hashchatat zera, a nullification of p’ru u’revu, chavala of the mother or as a violation of the affirmative duty to “desecrate one Sabbath so that he may keep many Sabbaths.” None of these obligations pertains to non Jews.
This psak gives rise to two questions: Could a Jew perform an abortion on a Noachide if the embryo is less than 40 days? Could a Jewish woman procure such an abortion by the expedient of utilizing a non Jewish physician?
The answer to the first question appears to be in the affirmative. While a Jew may not take the life of a non Jew, there is no positive duty of protecting future life. Nor is there the problem of lifnei ivair in aiding and abetting the woman in obtaining the abortion since the non Jew herself is not commanded with the affirmative obligations of hatzala. Thus, notwithstanding the fact that a Jewish physician could normally not abort the fetus of a non Jew, he would be permitted to abort a Noachide fetus of less than 40 days even according to the authorities that prohibit such an abortion for a Jew.26
The answer to the second question, however, is in the negative. It is indeed true that insofar as the non Jew is concerned, aborting any embryo within 40 days is halachically permissible whether the embryo is Jewish or non Jewish. However, given the fact that the abortion prohibition is triggered not only by the one performing the procedure but by the woman who makes herself available and hires the physician, the obligation to preserve and protect even potential Jewish life would preclude her acquiesence in the procedure.
In short, whatever leniencies may exist under Noachide law for the termination of a pregnancy less than 40 days old would not extend to a Jewish woman enlisting the assistance of non Jews. [At the very least, this would also be prohibited rabbinically under the rubric of amira l’akum but in all probability would involve a direct violation of “lo taamod” and “hashavat gufo”, certainly according to the Behag and possibility even according to those who differ with the Behag concerning chillul shabbat.]
d) Preembryo Disposition
A preembryo should certainly be entitled to no more halachic protection than a pre-40 day implanted embryo and there are logical grounds to afford it less. Thus, if genetic testing uncovers a defect which would justify abortion of a pre-40 day embryo, destruction of the preembryo may be similarly permitted. A number of contemporary poskim have gone further and have allowed the virtual indiscriminate discard of “surplus” embroys even where actual abortion of a transplanted “less than 40 day” embryo would not be justified.27
Without in any way intending to issue a psak, it would appear that the validity of this leniency should depend on the reasons why abortions are genreally prohibited. Because a preembryo is outside a woman’s body, there is obviously no issue of chavala of the mother. Since the preembryo is not in an environment in which it will be able to be brought to term and live, it arguably does not have the status of a living being even according to those who might accord such status to an implanted embryo before 40 days. Thus, neither retzicha nor chavala of the embryo would be implicated. It is not likely that destruction of a preembryo could be regarded as a chavala since there is no existing living being which is being “wounded.” It has also been suggested that regardless of the 40 day rule, until there is implantation within a human being, no human life can be said to exist.28 (It might also be added that since the preembryo is microscopic, not visible to the unaided human eye, the Torah does not invest its existence with any halachic significance.)29
To the extent abortion restrictions rest on hashchatat zera considerations, however, those concerns should apply equally to the preembryo. As noted, many authorities refuse to equate abortion of any embryo or fetus with the sin of hashchatat zera arguing that the latter is violated only at the time of seminal emission and not after an ovum has been fertilized.
The fundamental question is not whether there is a sin to destroy preembryos which at best may only be life in potential not actualization but rather whether there is a mitzva to preserve them. What about considerations of “lo taamod”, “hashavat gufo”, “vechai bahem”, “mutav sheyechallel shabbat achat v’al yechallel shabbatot harbai”? Do these concepts impose an affirmative obligation to sustain the “life” of a preembryo and compel its implantation? Assuming there is no hashchatat zera issue, the matter is not clear. I have already mentioned the halachic view of the Behag and the argument of Chavot Yair that whenever there is a dispensation for chillul shabbat, there is a duty to affirmatively sustain life and a corresponding prohibition not to diminish it.
A recent responsum of R. Shmuel Wozner of B’nai Brak has ruled that even according to the Behag, one may not be mechallel shabbbat on behalf of a preembryo.30 Since the justification of chillul shabbat is based not on the presence of actual human life (since mayim be’alma) but only on its potential, where the potential for realization is very remote or improbable (as is the present percentage of successful IVF pregnancies brought to term), the dispensation for chillul shabbat or other transgression of the Torah is not present. If we understand this ruling to suggest that there are no affirmative obligations to sustain preembryo life, the surplus embryos may indeed be discarded with impunity for any reason. If, however, as is more likely, R. Wozner’s ruling is limited to conflicts with other prohibitions but in the absence of such conflict, there would indeed be an obligation to protect potential life, then one could not automatically assume the unlimited right to discard unwanted preembryos.31
I would suggest, however, an alternative basis of leniency. It must be kept in mind that what is involved in preembryo disposition is not necessarily active destruction but simply allowing them to thaw out or disintegrate in storage. Thus, we are not dealing with active homicide (retzicha b’yadaim) but simply omitting to affirmatively act – the sin is shev v’al taaseh on hatzala. Moreover, for reasons of meyim bealma, even active destruction would at worst be violative only of the affirmative duty to protect potential life, i.e., under no circumstances would it be retzicha. Certainly, from the perspective of the husband and wife, they are at worst authorizing the cessation of affirmative activity that would culminate in embryo transfer and implantation.
Assuming that in the abstract there is a mitzva to sustain life based on “lo taamod”, “hashavat gufo”, “vechai bahem”, or “mutav sheyechallel”, at what cost? The halacha is very clear that one need not endanger one’s life in order to preserve or protect even the existing life of another.32 While it is permitted and perhaps encouraged to do so, there is no duty.33 It is also clear that pregnancy and parturition are life-threatening conditions that justify chillul shabbat. Thus, a woman should not be halachically compelled to receive a fertilized ovum in order to possibly preserve its life because through that process she would be endangering her own. Accordingly, fertilized eggs do not have to be implanted.
Admittedly, this argument might prove too much. After all, it is a crystal clear that a healthy woman may not abort a viable pregnancy merely because pregnancy and childbirth per se are life threatening experiences. Because these experiences are normal, common and natural and the risk of danger in ordinary course is low, the life of the fetus must be respected. Moreover, although a woman is technically not obligated in the mitzva of pr’v u’revu, she certainly could not insist on contraception or abstinence on the grounds that pregnancy per se is a dangerous condition. The obligations and responsibilities of the marital bond including onah, lashevet yatzara, and the duty to facilitate the husband’s mitzva of pru v’revu all combine to negate the elements of sakkana which at best is remote and infrequent. Similarly, the existence of a concrete nefesh (embryo or fetus after 40 days) precludes such reliance. Where, however, the prospects of hatzala are in themselves extremely remote, perhaps even remote dangers may justify inaction. Insofar as onah and lashevet are concerned, these obligations do not require consent to an IVF procedure nor would it require her to complete the procedure once begun. [Onah can also be waived by mutual consent.] In the absence of countervailing concerns, therefore, the woman’s claim of sakkana at least in the context of a preembryo should be given credence. (What about within 40 days? Is this only an argument for not implanting but not to destroy?)
The conclusions that emerge from this analysis are a bit unusual:
(1) all extracted eggs that are fertilized should be implanted;
(2) the wife would have the right to refuse implantation;
(3) if the wife is willing, the husband would have no right to abort the process;
(4) if wife says no, it is questionable whether the embryos must be discarded or whether they can be donated. While logic would support the latter, the alternative of donation is not accepted by most poskim addressing the matter.
e) The Propriety of Initiating the Procedure
A final question: given the fact that a woman has the right to refuse the receipt of fertilized eggs on grounds of sakkana, is it proper to perform or authorize an IVF procedure which may result in more preembryos than the woman is willing to receive either now or later? Must the IVF protocol be structured so that only a very limited eggs are retrieved to guarantee that all fertilized eggs will be “rescued”? While freezing for later implantation minimizes the problem, it does not eliminate it. If, for example, twenty eggs are retrieved and six are fertilized, a woman may be unwilling to have all the embryos implanted even over a period of several years.
Without coming to a definitive conclusion, this question may be connected to a well-known dispute between the Ramban and the Baal HaMaor. In Talmudic times, babies needed warm water after circumcision. If the brit was taking place on Shabbat the water had to be prepared before Shabbat because it is only a machshir milah – something necessary for the brit but not part of the actual ceremony. If one did circumcise a baby and then the water spilled, it is clear that one would be allowed to boil water for pikuach nefesh. But what if the water spilled before the milah? Is one allowed to perform the brit knowing that a situation of sakkana will thereby be generated necessitating the desecration of Shabbat or is it preferable to defer the milah until the next day? Baal HaMaor rules the milah should be postponed while Ramban rules that the mitzva that is incumbent to be performed should be performed even with the knowledge that a situation of pikuach nefesh will be generated.34 While the precise dispute of Ramban and Baal HaMaor is not explicitly addressed in the Shulchan Aruch, the halachic consensus follows Baal HaMaor and necessitates that the milah be deferred.35
If we may extrapolate from shabbat to other areas, the governing principle appears to be that one is not allowed to engage in conduct [which may be permissible in and of itself] with the knowledge that a situation of pikuach nefesh necessitating transgression will be thereby generated. Applying this to the disposal of surplus embryos, while the in vitro fertilization may be halachically permissible in and of itself – donation of eggs is not problematical and the emission of sperm was for procreative purposes and not levatala – it would be halachically improper to utilize the procedure in such a manner that there are likely to be surplus fertilized eggs that will then have to be discarded. Even if halacha permits those eggs to be discarded once they are generated (because of considerations of maternal health and pikuach nefesh), it would be improper to generate them. In effect, therefore, unless the mother is willing to have fertilized ova cryopreserved for future use, oocyte extraction would have to be limited to the number of eggs that the mother is able and willing to have implanted.
The analogy to brit milah and shabbat may not be exact. Circumcising on shabbat in the absence of warm water will inevitably necessitate chillul shabbat by virtue of pikuach nefesh; because of this certainty, Baal HaMaor rules that the milah should be delayed. By contrast, the extraction of multiple eggs will not necessarily result in transgression. Presumably, even according to Behag the mitzvot of hatzala, lo taamod, hashavat aveida etc. come into effect only upon fertilization. It is quite possible that out of a total of eight, ten, or twelve eggs, only one or two (or none) may be fertilized. It is possible, of course, that multiple fertilizations may occur thereby necessitating their disposal, but since this is only a possibility, not a certainty, the parties are permitted and indeed encouraged to proceed in any way that will enhance the efficacy of the procedure regardless of what the later consequences might be.
This conclusion – distinguishing between certainty and possibility – finds support in another law of milah on Shabbat. Chazal had a tradition that for the first three days following milah (according to some, only the third day) the child’s health may be especially precarious permitting the violation of Shabbat because of pikuach nefesh. Some poskim have concluded that it is improper to perform a milah on Thursday or Friday (unless it is a bris performed on eighth day) since this may necessitate chillul shabbat.36 The majority of poskim rule, however, that Thursday or Friday milah is permitted and it is in fact improper to delay the performance of a mitzva.37 While it is indeed true that purely elective surgery should not be performed after Wednesday because of the mere possibility of shabbat having to be violated,38 such possibilities carry no weight where a mitzva is being performed.
As between a mitzva like milah where only the certainty of desecration warrants postponement and an optional medical procedure where even the possibility of chillul shabbat necessitates rescheduling, IVF falls somewhere in the middle. On one hand, the obligations of p’ru v’revu and lashevet have never been understood as compelling resort to any type of surgical procedure to achieve procreation. At the same time, most poskim do consider the offspring produced from IVF as having a familial bond to the biological parents. The father either fulfills p’ru v’revu or at least the prophetic injunction of lashevet. As such, the kiyum hamitzva that one may attain, by analogy to milah shelo bizmana, may be sufficiently great that one may be permitted to pursue whatever avenues carry the greatest prospects of success even if there is a possibility (not a certainty) that pikuach nefesh will be invoked to violate prohibitions, i.e., disposal of surplus eggs.
In fact, one might argue that to the extent IVF is permissible only because the sperm is procured for purposes of reproduction, the prohibitions of hashchatat zera require, not only permit, that IVF be implemented in a manner most likely to produce a successful pregnancy and minimize the need for repetitive semen procurement. Since multiple egg retrieval greatly increases the chances for success, its utilization may actually be preferable notwithstanding the “risk” of surplus embryos that will not be implanted.39
1. The term “preembryo” is commonly used to describe the stage of cell development from the time an egg is fertilized by sperm until implantation into the uterine wall. Implantation commonly takes place within 10-14 days after fertilization. (Obviously, in the case of an IVF frozen preembryo, implantation can occur only after transfer to a uterus which may and often does occur years later.) At the 10-14 days point, a primitive dark streak begins to appear within the otherwise undifferentiated cells. This dark streak will eventually form the neural tube. In modern medical parlance, the appearance of this streak coupled with uterine implantation mark the transition from preembryonic to embryonic status. [Technically, immediately after fertilization, the fertilized ovum is a single cell known as a zygote. The zygote becomes a true preembryo only after cleavage which occurs shortly after fertilization.] Those who distinguish the preembryo from the embryo justify that distinction on the basis that prior to the embryonic axis being formed, the cell has no developmental individuality; twinning can occur either naturally or experimentally. The embryonic stage lasts for around eight weeks by which time there is at least rudimentary development of differentiated organs. After that point, the organism is termed a “fetus”. See generally American Fertility Society, Ethical Considerations of Assisted Reproductive Technologies (Nov. 1994), 29S-31S. This usage is not consistently followed and the terms “embryo” and “preembryo” are often used interchangeably.
2. Many changes and improvements have been made since the first successful IVF was performed in 1978. The two most important developments were the use of medications which stimulate the ovaries to produce multiple eggs (superovulation) and the development of cryopreservation to freeze embryos for future use. Another important development is in egg retrieval. The procedure originally required laparoscopy under general anesthesia. Today, transvaginal ultrasound guidance allows the insertion of a thin probe through the vagina directly into the ovary and the visualized eggs are removed by suction. The procedure requires only mild sedation and recovery is rapid. The IVF-ET Registry for 1985 indicated that 94.2% of oocyte retrievals were performed by laparoscopy. By 1984, 87% were done by ultrasound. See, for the data, Moghissi and Leach, “Future Directions in Reproductive Medicine,” 116 Arch. Path. Lab. Med. 436-441 (April 1992).
3. The best chance of achieving an IVF pregnancy involves the transfer of 2-4 embryos. Fewer than two greatly reduces the chance of pregnancy. More than four increases the risk of multiple gestation which may pose risk to mother and fetus. Eight or more eggs are routinely retrieved and recovery of more than 20 is increasingly common. See Wood et al, “Factors Influencing Pregnancy Rates Following In-vitro Fertilization and Embryo Transfer,” 43 Journal of Fertility and Sterility 295 (1985).
4. Considerations of space obviously do not permit full discussion of all areas of preembryo technology. One area that will not be extensively discussed is embryo cloning. In October 1993, physicians at the George Washington Hospital were able to separate cells from 2-8 celled preembryos and have them grow into separate entitites. While the new preembryos did not survive, as the technique gets perfected it will allow for the artificial creation of genetically-identical human beings, i.e., identical twins. See Robertson, “The Question of Human Cloning,” Hastings Center Report 24, no. 2 (1994), 6-14. Theoretically, preembryos can be split enabling one to be implanted and the other to be transferred. This creates the anomaly of not only siblings but genetically-identical people having different parents. Without addressing all the issues of cloning, it may be said that the existence of an identical genotype is not a halachically relevant factor. Notwithstanding their common genetic structure, twins will not be siblings unless they share common parental bonds. With respect to virtually all the aspects discussed in this paper – destruction, experimentation, donation – there should be no distinction between preembryos that are produced by cloning and those that are produced by a separate sperm fertilizing a separate egg.
Other aspects of preembryo technology that have been regarded by the general public as ethically problematical do not necessarily engender halachic questions. For example, (1) concern has been expressed about persons donating or even selling some of their embryos while using the rest, thereby generating siblings who are unaware of each other’s existence. While the possibilities of unknown incest are indeed halachically problematical, the problem existed well before the externalization of the preembryo with the widespread use of artificial insemination, sperm banks etc. (2) Cryopreservation, donation, etc create possibilities that eggs that were fertilized at the same time may be born years apart. While this may raise issues concerning inheritance etc., that is not a circumstance that halacha particularly condemns. (3) Finally, much concern has been expressed about intrafamily sperm or ovum donations, e.g., brother to brother, sister or even mother donating an egg to siblings/daughter. Some clinics have prohibited the practice. See M.V. Sauer et al., “Survey of Attitudes Regarding the Use of Siblings for Gamete Donations,” Journal of Fertility and Sterility 49(4):721 (1988) and “Ethical and Legal Issues in Human Egg Donations,” Journal of Fertility and Sterility 52(3):353 (1989). From the standpoint of halacha, however, the problems of intrafamily donations are not unique. All sperm donations (from Jews) raise possible adultery and mamzeirut issues even from unrelated parties and all ovum donations even from related parties may not. See text at notes _____. The intrafamily aspect does not appear to be significant.
5. Artificial insemination with husband’s sperm (AIH) may be a helpful procedure for men who have low sperm counts since it allows the combination of several ejaculates and may also be indicated when a woman’s fertile period around ovulation precedes the date she can go to the mikvah. See generally A. Steinberg, “Artificial Insemination in the Light of Halacha,” Sefer Assia 128-141 (1982) and A. Cohen, “Artificial Insemination,” 13 Journal of Halacha and Contemporary Society 43 (Spring 1987).
6. The issues raised by AIH included: (1) whether or not the husband had a paternal relationship to the child; (2) whether or not a child conceived through AIH is a fulfillment of the Torah commandment of p’ru v’revu or at least the prophetic edict of lashevet; (3) whether the methods that were employed for the procurement of semen violated the edicts against hashchatat zera and what alternatives could minimize the prohibition; and (4) fear concerning substitution or mixing with donor semen.
7. See, for example, Teshuvot Maharsham III, no. 268; Minchat Yitzchok I, no. 51; R. Shlomo Zalman Auerbach, I Noam at 157 (5718); Seridei Aish III, no. 5; Tzitz Eliezer IX, no. 51; Yabea Omer II, E.H. no. 1. See also the excellent summary in Nishmat Avraham E.H. 1:5.
While the procedure as such has been validated, controversial areas remain. May a woman be inseminated while she is a niddah? This is extremely important for cases of early ovulation. Compare Teshuvot Maharsham III, no. 268 (prohibited) with Igrot Moshe E.H. II, no. 18 and Yabea Omer E.H. II, no. 1 (permitted). See also Minchat Yitzchok I, no. 50 (willing to permit woman to immerse seven days from the onset of her period so that she is no longer a niddah under Torah law but only if other authorities agree). Interestingly enough, the advent of IVF may avoid the need for insemination during niddah since the egg can be obtained during ovulation and fertilized later and in any case would not be fertilized within the niddah’s body. [Note too that artificial insemination per se is not treated as a ptichat hakever which would render a woman niddah – R. Auerbach in Noam.] May an AIH child be circumcised on Shabbat? See Nishmat Avraham Y.D. 240:2.
8. See Rabbi Ovadiah Yosef, I Techumim at 287; R. Avigdor Nebenzal, 34 Assia (Tishrai 5743); R. Shmuel Wozner, Shevet Levi V, no. 47 (although one may not desecrate shabbat to save the preembryo because of the low probability of its ever coming to term).
9. Tzitz Eliezer XV, no. 45. Query whether utilization of GIFT would change his view. In GIFT, the egg and the sperm are mixed together but are then placed in the fallopian tube where fertilization takes place. See infra text at notes ___________.
10. Even where the egg donor carries the baby to term and is thus both the gestational and birth mother.
11. Bishevilai HaRefuah, no. 8 (Kislev 5747), p.33.
12. Kol Tzofayich, pp. 361-367; Or HaMizrach (Tishrai 5749).
13. Other aspects of AIH or IVF may be more problematical. First, may AIH or IVF be undertaken by a couple who already have the minimum son and daughter but desire to have more? Compare the views of R. Auerbach (even where he has a son and daughter, a man may be permitted to obtain sperm in order to fulfill the imperative of lashevet or where his wife is in significant psychological distress in not having more children) cited in Nishmat Avraham E.H. 23:1 (however with the qualifying term “yitachen” – it may be possible) with the contrary view of R. Eliyahu Bakshi-Doron, the present Sefardic Chief Rabbi of Israel (then the Rav of Haifa), who ruled that the ban on hashchatat zera can be lifted only for the Torah commandment of p’ru u’revu and not for the lesser mitzva of lashevet. Letter to Joel Wolowelsky, Dec. 15, 1991. Rabbi Moshe Feinstein also seemingly subscribes to this restrictive view. See Igrot Moshe E.H. IV, no. 73. Note, however, that both Rabbi Feinstein and Rabbi Bakshi-Doron are addressing the use of sperm procurement for testing, not actual procreative use. The latter may be considerably more lenient. Note too that any halachic distinction between p’ru u’revu or lashevet must assume that one fulfills p’ru u’revu through AIH or IVF. This too is a matter of controversy. See next note and note ___.
Second, is it permissible for a single person who is undergoing chemotherapy that will probably render him sterile to freeze sperm for later impregnation? The poskim have responded in the negative. See Nishmat Avraham [App. Vol.] E.H. 23(1) quoting R. Elyashiv. See also Letter of Machon Eretz Chemdah, an Israeli “think-tank” specializing in medical halacha (9 Tevet 5754, Dec. 23, 1993) to Dr. Joel Wolowelsky. (The signatories on the letter were Rabbis Yosef Carmel and Moshe Ehrenreich and the conclusions were approved by Rabbi Shaul Yisraeli, the head of the Machon. Dr. Wolowelsky was kind enough to furnish a copy of the correspondence.) Nishmat Avraham quotes R. Auerbach as disapproving of such a practice even for a married man who has not yet fulfilled the mitzva of p’ru u’revu but l’fi aniyus daati, this psak is very difficult to understand.
14. It appears to be unresolved whether one can fulfill the Torah command of p’ru u’revu though either AIH or IVF. R. Auerbach in his Noam article states that the matter is not clear. The Aruch L’Ner to Yevamot 10a explicitly rules that one does not fulfill p’ru u’revu in the absence of a sexual act. On the other hand, Rabbi Bakshi-Doron apparently assumes that p’ru u’revu is fulfilled since he only permits the procedure to achieve this purpose.
The foregoing assumes a paternal bond. If one adopts the views of Rabbis Waldenberg, Sternbach, and Gershuni that sperm contributors do not have paternity in IVF cases, it is clear that there is no mitzva of p’ru u’revu though, as noted, R. Gershuni even here would concede the mitzva of lashevet.
15. One further point concerning IVF needs further elucidation. While the poskim who permit IVF have not been explicit, none of them indicate that the entire seminal ejaculate or sperm be deposited in the vagina or otherwise preserved. R. Yisraeli has expressly so ruled, indicating that surplus sperm should be destroyed to prevent its unauthorized donation to another woman. See Letter of Dec. 1993. In the normal course of events, an egg is fertilized by a single sperm. Even if all fertilized eggs are transferred, there will clearly be much sperm that goes to “waste”. (As noted, this is one of the reasons why R. Waldenberg condemns IVF.) This problem does not arise in regular intercourse since all the zera enters the body and is thus not levatala even if only a single sperm fertilizes an egg or indeed even if no pregnancy results at all. (It is axiomatic that marital intercourse with an infertile woman is not hashchatat zera.) Where, however, the sperm is obtained for procreation outside of the woman’s body, why isn’t the extra “going to waste”? The theory must be that since the sperm was obtained for procreative purposes and the egg was exposed to all the sperm in the dish, the sperm is effect was permitted to perform its natural functions, i.e., compete to fertilize the egg, and, as true for insemination within the body, need not be retrieved or preserved to try again.
This analysis would have major repercussions for certain aspects of AIH or IVF. Could either of these procedures be used for sex selection by separating out the X or Y sperm? Obviously, in the absence of an underlying fertility problem utilization of these procedures would be forbidden but what if there is a fertility problem that justifies the obtaining of semen outside of marital intercourse? Could there then be separation? Based on the above analysis, the answer would still be no. AIH would require that the entire ejaculate be deposited in the woman’s vagina or uterus and even IVF would necessitate that all sperm be exposed to the egg and enabled to perform their natural function, although once fertilization took place, the excess sperm could be discarded. (But cf. Nishmat Avraham (App.Vol.) E.H. 1:1 which quotes R. Auerbach as permitting sperm separation in AIH to prevent the conception of a male child that may carry hemophilia.)
A similar problem exists with respect to genetic testing and screening. Individual sperm can now be examined for chromosomal abnormalities and genetic defects and discarded. Is such discarding violative of hashchatat zera? Must all sperm be placed in the petri dish or as long as some sperm is, the emission was not levatala? For a variety of reasons, poskim have permitted selective discard on the basis of genetic defects although they have not permitted it for “mere” sex selection. (As noted, however, R. Auerbach did permit sperm separation where the possibility of a genetic defect was sex linked.) Moreover, at least one posek has permitted such genetic screening not only in cases where the IVF procedure was independently justified for infertility concerns but even in cases where there was no infertility treatment and IVF was being employed as a diagnostic device. R. Yitzchok Silberstein, quoted in Grazi, Be Fruitful and Multiply, pp. 182-184. This is clearly a matter that needs further discussion.
A final problem area is the recently developed medical technique of drilling the outer layer of egg and inserting a specific sperm. Since the other sperm have no chance of penetrating the egg, was the procurement of such sperm an act of hashchata? Presumably not – unlike sex selection or genetic screening, this procedure is specifically calculated to improve the prospects of fertilization . If such drilling is warranted on the basis of fertility considerations, i.e., sperm is not strong enough penetrate, there would then appear to be nothing objectionable to choosing the sperm on the basis of sex or chromosomal makeup. It would appear to be halachically preferable, however, to obtain the single sperm required through testicular biopsy, thereby avoiding the emission of extra sperm that would be levatala.
16. The most complete study of the halachic aspects of abortion appearing in English is Bleich, “Abortion in Halachic Literature,” I Contemporary Halakhic Problems 325. See also Nishmat Avraham H.M. 425.
17. One isolated reference in Tosafot, Niddah 44a, s.v. Ihu, seems to suggest that the killing of a fetus may actually be permitted even rabbinically but must commentators have concluded that Tosafot’s words cannot be understood literally or that they represent a scribal error. See, e.g., comments of Yaabetz there; Igrot Moshe H.M. II, no. 69. See also Achiezer III, no. 65(14) and Beit Shlomo H.M. 132 who assert that Tosafot’s blanket dispensation applies only to the Sages who maintain that feticide is not a capital crime under Noachide law. Since the halacha is in accordance with the view of R. Yishmael that feticide is a capital offense under Noachide law, it would automatically follow that such practice be Biblically prohibited to a Jew based on the general rule that there is nothing that is prohibited to a Noachide that is permitted to a Jew (though the Noachide punishments may be more severe).
18. In cases of abortion, it is not entirely clear who is the technical transgressor. Is it only the physician who actually kills the embryo or fetus or would it also be the woman (and perhaps the husband) who requests the service and, in the case of the woman, makes herself physically available for the service to be performed? If we assume the former, the only transgression the woman would be violating is “lifnei ivair lo titain michshol” – causing another to transgress (equally applicable to causing non Jews to violate the Noachide laws as well); under the second possibility, the woman is a direct and primary transgressor and not merely an aider and abetter of someone else’s sin. R. Auerbach seems to rule that the patient is not simply a facilitator but is a direct violator. See Nishmat Avraham O.H. 656:1 at p. 92. Such a characterization is quite logical if abortion is proscribed because of the affirmative obligations of hatzala – conduct facilitating fetal destruction is as inconsistent with this duty as actual destruction is. This result may also follow if abortion is described as noncapital murder since, as Rambam rules, one who hires the murderer is guilty of murder at least in the eyes of Heaven. See Mishna Torah, Hilchot Rotzeach 2:1. It is difficult to regard the woman as a primary offender if the offense be defined as hashchata zera since merely allowing seed to be destroyed does not appear to be an act of hashchatat. (Note too that many opinions rule that a woman is generally not subject to the prohibition of hashchatat zera). The same difficulty arises if abortion is prohibited because of chavala.
It must be reiterated, however, that even if an woman is not a primary violator, she is prohibited from obtaining an abortion from either a Jewish or non Jewish physician because of lifnei ivair.
19. The halacha is clear that a Jew is not permitted to perform an abortion on a non Jew but the reason is uncertain. If Jews are prohibited to perform abortions because feticide is regarded as a species of murder (albeit non capital murder), then just as a Jew is not allowed to kill a non Jew, he is not allowed to abort a non Jewish fetus. If, however, the abortion prohibition of a Jew is subsumed under hashchatat zera, chavala of child or mother, or as a violation of the affirmative obligation to sustain life, none of these are obligations that Jews owe non Jews. Why then cannot a Jew perform an abortion on a non Jew? The answer would be that the Jew would be transgressing lifnai ivair. If we accept R. Auerbach’s ruling that the woman is not merely an accessory to the doctor’s primary violation (which in this case would be nonexistent) but that she herself committed the equivalent of an act of (capital?) murder, it would be prohibited for the Jewish doctor to facilitate such a transgression. Even if there are other doctors who would willingly perform the abortion if he declines, his assistance is still prohibited because those others are themselves subject to the same proscription. [See Mishna L’Melech, Hilchot Malveh V’Loveh 4:2 – the existence of alternative facilitators removes lifnai ivair only where those facilitators are allowed to extend such assistance].
Thus, if abortion is viewed as retzicha, the Jewish physician performing it on a non Jew is a primary transgressor; if abortion is not viewed as retzicha (from the perspective of a Jew), the physician is an aider and abetter of a primary transgression of Noachide law committed by the patient.
20. Tosafot in Sanhedrin remains in doubt whether the Noachide prohibition against feticide may be set aside even in the event of danger to the mother’s life. The various possibilities in understanding Tosafot’s doubt are thoroughly catalogued in Bleich, “Fetal Tissue Research: Jewish Tradition and Public Policy,” 24(4) Tradition 69, 87-88 n. 47 (Summer 1989). Rabbi Feinstein rules that because of this doubt, the non Jewish doctor should not perform the abortion. [CITE] Two questions R. Moshe does not fully address are: (1) Could a Jewish doctor perform an abortion on a non Jewish woman where her life is in danger? (2) Could a non Jewish doctor perform an abortion on a Jewish woman if her life is in danger?
With respect to the first question, its resolution depends on understanding why the Noachide law of abortion should not be waived to save the mother’s life. After all, the Gemara in Sanhedrin concludes that Noachides may even violate idolatry for pikuach nefesh. If the reason pikuach nefesh does not set aside Noachide feticide is because for Noachides abortion is akin to murder and one may not destroy one soul to save another, a Jew could not facilitate a Noachide’s committing murder because at the very least the Jew would be transgressing lifnai ivair. If, on the other hand, considerations of pikuach nefesh would permit feticide even under Noachide law but the problem lies only in the use of third party intervention, i.e., a Noachide may commit feticide to save his or her own life, but cannot transgress any Noachide law to save the life of another, the woman herself is not a violator. It would only be the doctor. If the doctor is Jewish and his only sin is causing the woman to transgress, it might be permitted here since the woman is no longer a transgressor. See Minchat Chinuch, no. 296 (a Noachide may transgress Noachide law to preserve his own life but not to save another).
In short, (1) if abortion from a Jewish perspective is treated as (noncapital) murder, under no circumstances could the Jew perform the abortion on a non Jew since there is no affirmative obligation of saving life that would override the prohibition.
(2) If abortion from a Jewish perspective is not murder but a Jew may not abort a non Jewish fetus because it facilitates a transgression on the part of the woman and pikuach nefesh is not a Noachide dispensation for the woman because for Noachides feticide is equated to murder, a Jew once again could not perform the abortion.
(3) If abortion for Noachides is not murder but pikuach nefesh is nonetheless not a Noachide dispensation because illness is not equated to duress, once again a Jew could not facilitate the woman’s commission of transgression. See again Minchat Chinuch, no. 296 (a Noachide may violate Noachide law if he is threatened with death by another if he does not do so but may not violate such law to extricate himself from life threatening illness.)
(4) If, however, abortion is not murder for Noachides but pikuach nefesh is not a dispensation solely because of third party violations, the woman herself is no longer a direct transgressor. The Jewish doctor is therefore not the facilitator of a sinful act and could abort.
In sum, there is at least a tenuous basis in halacha to permit a Jewish doctor to abort a non Jewish fetus where the mother’s life is at risk.
With respect to the second question, here the poskim clearly indicate a preference for a Jew who is permitted to violate prohibitions in order to sustain life. A non Jew would not be permitted to so act. Nevertheless, from the perspective of the Jewish patient, the only prohibition involved is lifnai ivair and if necessary to save her life, she may certainly transgress lifnai ivair to have the doctor perform although halachically the doctor’s proper response would be to refuse.
21. See Beit Shlomo H.M. 132; Torat Chessed E.H. 42 (33); Seridei Aish III, no. 127. See also Achiezer III, end of no. 65 (“perhaps” there is no Torah prohibition). A stricter view is taken by R. Isser Yehudah Unterman, 6 Noam at ___, and Rabbi Moshe Feinstein, Igrot Moshe H.M. II, no. 69.
22. See Ramban, Yoma 82a; Torat HaAdam (Shaar HaSakkana); Noda B’Yehuda II, H.M. 59.
23. This correlation is rejected by Seridei Aish who argues that even according to the Behag abortion within 40 days may be halachically permissible. The dispensation to desecrate the shabbat to save a life does not, in his judgment, automatically imply a prohibition to terminate that life. As noted by Rabbi Weinberg himself, however, his assertion is flatly contradicted by Chavot Yair. See also Bleich at 340.
24. Sanhedrin _________.
25. R. Unterman, 6 Noam, at 4; Shevet M’Yehuda I, 9.
26. For reasons that are not clear to this writer, R. Bleich at 343 limits this dispensation to a Jew “giving advice or rendering indirect assistance.”
27. See R. Mordechai Eliyahu (the former Rishon L’Tzion), “Discarding Fertilized Eggs and Fetal Reduction,” 11 Techumin (1991); R. Chaim David HaLevi (Ashkenazic Chief Rabbi of Tel Aviv), “On Fetal Reduction.” Assia 47-48 (12:3-4) (1990) (“The law of abortion applies only to procedures in the womb but in vitro, there is no prohibition at all.”); R. Moshe Sternbuch, Bishevilai HaRefuah no. 8 (Kislev 5747), p. 29 (“The prohibition against abortion is in the woman’s uterus for [the embryo] has the potential to develop and become complete in her womb and it is destroyed.”) This also appears to be the implicit assumption of R. Shaul Yisraeli in an essay published as an Appendix to the Entzyclopedia Hilchatit Refuit, Vol. 4, where he discusses the Nachmani case, see text at _____, and rules that the embryos should be destroyed.
28. See R. Ezra Bick, “Ovum Donations: A Rabbinic Conceptual Model of Maternity,” ____ Tradition _____.
29. To the extent permissibility of preembryo disposition rests on the fact that the embryo is microscopic and less than 40 days old, eventual technological “progress” – if that is the proper term – in allowing the embryo to develop outside of the womb for more than forty days may remove the halachic dispensation. On the other hand, if permissibility hinges on the fact that the embryo is not in an environment in which it can be brought to viability, this would permit disposal even if embryonic development outside the womb went considerably further. Finally, if one accepts R. Bick’s definition of human life, one reaches the uneasy conclusions that if science ever produces a totally “test tube” baby, the baby would not be human and would be destroyed, Hashem yishmarenu.
30. Shevet Levi V, no. 47.
31. Two peripheral points that may suggest leniency should be rejected. First, the fact that the preembryos are likely to be destroyed by a non Jew would not in and of itself justify the procedure. Even if the non Jew is free of transgression as Rabbi Unterman argued, the Jewish parents who authorize the embryo destruction are considered in themselves to be primary violators of their halachic obligation to protect and sustain even potential life (according to the views that a Jew may not abort an embryo less than 40 days old). From the perspective of lo taamod, there is absolutely no distinction between acts of commission and sins of omission. Moreover, if we perceive the prohibition against a Jew aborting a “less than 40 day old” embryo as based on a recognition of the embryo’s actual life rather than its potential to become life and thus, it too is a form of noncapital murder, Rambam makes clear that at least insofar as Heavenly judgment is concerned, hiring the murderer (even if for him – the Noachide – it is not a murder) renders the hirers culpable. Hilchot Rotzeach 2:1 Second, in many cases, the preembryos will not be physically destroyed but will thawed out or left in storage which will cause their inevitable spoilage and deterioration. Death will occur only via grama (indirect causation). This too should not make a difference. Failure to affirmatively preserve life is implicated whether destruction is active and direct or merely indirect and gradual. The gravamen of “lo taamod” is not how the entity died but that no steps were taken to prevent its death. Even if the concern is with actual retzicha, Rambam rules that indirect homicide violates lo tirtzach even though the perpetrator is not subject to capital punishment. Hilchot Rotzeach 2:1.
32. The Beit Yosef, C.M. 426, quotes the Talmud Yerushalmi that one is obligated to expose oneself to possible danger in order to extricate another from certain danger. This rule is not quoted by either the Shulchan Aruch or Rema. According to Sema and Pitchai Teshuva, the Talmud Bavli disputes the Yerushalmi’s premise and the halacha follows the Bavli. See also Teshuvot Radbaz, no. 627 (It is forbidden to endanger oneself to save another. One who does is a chassid shoteh – a foolish pious person). Others permit (but don’t require) self-endangerment if the person to be rescued is a superior talmid chacham etc. but prohibit such endangerment if the rescuer is greater. Pitchai Teshuvah Y.D. 252:1 in name of Teshuvot Yad Eliyahu, no. 43. L’halacha, we permit altruistic volunteering regardless of the rescuer’s status but don’t compel it. See Igrot Moshe Y.D. II, 174:4 (kidney transplant) and Aruch HaShulchan C.M. 421:4 (cautioning, however, that one should not be overly protective and cautious of one’s safety in declining to render assistance). For further discussion, see Nishmat Avraham Y.D. 156:4 and 252:1.
33. Even according to the Yerushalmi cited by Beit Yosef, there would probably be no obligation to put oneself in danger here for the Yerushalmi imposes the obligation only if it is a relative certainty that rescue will be successful. In view of the small percentage of implanted IVF embryos that are brought to term, the prospects of rescue are at best safek. [CHECK]
34. See R. Pirutinsky, Sefer HaBrit 266:6 (Mekor U’Biur Halacha) for a complete discussion.
35. See Mishna Berurah 331:24 citing this as the position of “most acharonim”. If the milah does take place, however, one is of course obligated to be mechallel shabbat to extricate the child from sakkana. Id.
36. Tashbetz I, no. 21 quoted in Beit Yosef Y.D. 268; Birchai Yosef Y.D. 262; Maharsham V, no. 7; Yabea Omer V, Y.D. no. 23.
37. Shach, Y.D. 266:18; Magen Avraham, 331:9; Eliyahu Rabba, 331:10; Noda B’Yehuda II, Y.D. 166; Chacham Tzvi, Teshuvot Nosefot no. 9; Mishna Berurah 331:73; Shemirat Shabbat K’Hilchata 32:(96). See also Nishmat Avraham Y.D. 262:3 who quotes Rabbi Shlomo Zalman Auerbach to the same effect.
38. Some opinions prohibit this because of the prohibition against generating pikuach nefesh situations. Others prohibit this merely because it is improper to cause unnecessary pain and suffering over shabbat. According to the latter understanding, this halacha would have no relevance to the pikuach nefesh issue under discussion here.
39. A more subtle analysis lends further support to this argument. If destruction of a fertilized ovum is prohibited, it is not because it is a “life” but because it is an organism that has the potential to develop into life. It is its future existence, not its present reality, that is the predicate for justifying the obligations of hatzala. The “sin” of destruction is not abortion or feticide; rather it is the failure to bring to fruition a certain potential. That failure exists whether the fertilized ovum is discarded or whether the egg is never retrieved in the first place. Limiting oocyte retrieval to a small number of eggs does not eliminate the vice or evil that is being condemned and therefore, there is no logical reason why such limitation should be halachically mandated. [Would this be true even in cases of certainty?]