Fertility Halacha Needs a Major Update

A foundation of halacha is that while times and circumstances may change, halacha remains the same. No one would argue that the prohibition of Tochen (grinding on Shabbat) does not apply nowadays since we do not have stone mills like in the times of the mishkan. The new circumstances need to be taken into consideration, and halacha must be applied to those circumstances. This is why it is important to note that halachot applied in the early days of fertility treatments should not be stagnant today, as medical treatment so radically differs from what it was. This relates most of all to the topic of having hashgacha in the process of fertility treatment. Many Orthodox couples believe there is a need to have a mashgiach/a for transfers of semen and embryos when indeed that is far from being a matter of consensus. Hashgacha is especially outdated today when DNA tests are so common and test with such great accuracy.

Requiring hashgacha at fertility treatments began as a leniency enabling treatment aligned with halacha at times when better options were not available. Halacha requires that there be knowledge of who a child’s mother and father are. This is vital for purposes of making sure the child is not a mamzer, knowing who the child can marry, whether the child is a Cohen and a myriad of other reasons many of which apply in every civil society. It is vital we have a means of establishing who a child’s parents are. While usually, we require to kosher witnesses for any marital related issues, the Talmud states that a mother can be relied on to establish the paternity of a child. The Talmud goes further to say that a midwife can also be relied on to say this is the child of this woman.

This all ran into trouble in the 20th century with the development of treatments such as IUI where the mother does not conceive directly from her husband but rather then semen goes through a tube which is at the disposal of a doctor. After all, there were no two witnesses, nor was there the testimony of the mother to establish who the father is. The prospect of having two kosher witnesses at every fertility treatment was not convenient or realistic even as mothers and midwives could not testify on the paternity of a child conceived in a doctor’s office.

Rabbis such as Rabbi Shlomo Zalman Aurbach OBM and several others, with their broad and brilliant halachic knowledge, ruled that one can establish the yichus i.e., paternal relationship, with having one witness, i.e. ed echad, present at the transfer.

This was all true when one witness was the one and only way of establishing paternity. The majority of halachic decisions on this matter were written before 1980. Then, in the late 1980s, early 1990s came the spread of DNA paternal testing.

As to this day, several articles have been written establishing the halachic reliability of DNA testing, used not only to allow 9/11 victims wives to remarry, but in many other cases as well.

In such a world, it is fair to argue that establishing paternity and yichus through the use of a simple DNA kit is more sensible, cost-effective, and dignified than having on-site hashgacha for fertility treatments.

While many rabbis such as Rabbi Moshe Shternbuch of the Edah Charedit, Rabbi Mordechai Willig and Rabbi Yaakov Neuburger of Yeshiva University, and Rabbi Dovid Cohen of Brooklyn, are of the opinion that regardless of DNA testing, hashgacha is not needed in fertility treatments due to the high levels of professionalism and the low instances of mishaps, it is reasonable to argue that even those that did require hashgacha in the past would advocate for replacing hashgacha with DNA tests.

There are many reasons to advocate for the hashgacha to DNA switch. The first is accuracy. While a mashgiach/a in the 1950s can look at the tube of semen taken from the husband and inserted into the wife, today’s procedures are far more complicated. The semen is put into a machine that bleaches the semen, which can be larger than a microwave(see below).

 

That machine can contain the semen of many other men. Seeing the tube given to the technician or put into the tube gives no assurance that for that particular semen sample to be inserted into the woman or that it fertilize her egg. Ultimately, all are relying on the professionalism and the expertise of the lab technician, the incredibly high liability of the doctor in case of any mistake, and yes, the possibility of a DNA test which can easily assert paternity.

If there is no harm or cost, why not just have a mashgiach/a at the site, some may argue. While couples that find it emotionally helpful to have on-site hashgacha should most defiantly do so, there are many downsides to having on-site hashgacha. It is essential that couples be informed that hashgacha in the fertility process is not required the same way it is, say, in the field of food and restaurants. Thinking hashgacha is required can lead couples to delay treatment cycles, discard samples they collected with no hashgacha, violate the spirit and laws of Shabbat by going the extra mile to work treatment cycles around hashgacha, and other issues that are assumed to be halacha but are not.

Even local Orthodox rabbis who should be informed on the topic, operate on the common knowledge that hashgacha is required and base their answers on that when in fact that may not be true.

There are other major halachic and hashkafic downsides to insisting on hashgacha in fertility treatments.

Rabbi Moshe Isserlis, in his notes to Shulchan Aruch Yoreh De’ah(198:48), states in sharp and unforgiving terms of the need to maintain the privacy surrounding one’s marital relations. Disclosure of time or occurrence of marital relationships is seen as an unacceptable deviation from the law and spirit of Judaism. Many rabbis do not permit collecting semen through masturbation in the doctor’s office, but rather that it be collected through normal intercourse using a condom and then brought to the doctor’s office. Medical best practices require the semen to be brought in within an hour of its collection. If you do 1+1+1, here is the picture you get: the wife and husband need to find a place to have normal intercourse close enough to the doctor’s office, then they need to get there with the semen sample within an hour, register there, call the lab technician, and hand the sample to them. Add to this having a witness from their own community watching over the whole process and it all seems like a profoundly violating experience trampling the laws and spirit of tzni’ut (modesty) in a strong way. With the possibility for fertility cycles to occur on Shabbat and holidays, it does not take a great imagination to see how requiring supervision is a halachic nightmare in the making.

With the last reported case of semen samples being switched being reported in the United States occurring in the year 2000, almost 20 years ago, and one more case of embryo misplacement in 2006, coupled with the absence of concrete halachic literature requiring hashgacha for fertility treatment, the Orthodox community must recognize that there are better options out there. Communities who feel the need for additional verification should do so through DNA testing after a child is born. Those concerned this is an ex post facto (le’achar ma’aseh) test, should not delude themselves that an on-site mashgiach/a adds an iota of certainty to established medical standards. Those who feel emotionally calmer with a mashgicha/a should, by all means, follow what makes them feel best about this emotionally turbulent process.

About the Author
The writer is a rabbi, writer, teacher, and blogger (www.rabbipoupko.com). He is the president of EITAN-The American Israeli Jewish Network and lives with his wife in New York City.
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