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How can the Torah say infertile couples must do IVF?!

When Rabbi Eliezer Melamed prescribes 4 children per family, he seems to ignore the challenges of infertility
Illustrative. Syringes and medical vials for IVF treatment. (iStock)
Illustrative. Syringes and medical vials for IVF treatment. (iStock)

I have a lot of respect for Rabbi Eliezer Melamed, whose work “Peninei Halacha,” has helped Torah-observant Jews around the world to better understand whole sets of Jewish law. I also admire the recent stance he has taken on vaccines.* That’s why I was excited to read his piece “The Mitzvah of Pru Urvu Requires Effort.” I thought it would be a piece encouraging couples who feel they need medical help, to not be afraid to seek it out. Instead, it was a piece proclaiming that couples are OBLIGATED to seek out treatments. I plan on going through the piece,  and responding point by point:

  1. According to Rabbi Melamed, a couple is obligated to undergo fertility treatments if they have trouble conceiving naturally.

Rabbi Melamed claims that a couple is halachically obligated to “do everything acceptable according to medical practice” in order to have children. First of all, I’m not sure it’s always halachically correct to order someone to undergo medical treatments in order to fulfill a mitzvah. For example, if someone suffers very bad dehydration every Yom Kippur and winds up fainting in synagogue and being forced to drink a sip of water, it would not be mainstream to tell this person that from now on, they must check themselves into a hospital every Erev Yom Kippur, at their own expense** and remain there for 25 hours hooked up to an IV, so that they don’t need to drink. Maybe they should have to undergo this relatively inexpensive, non-invasive medical intervention in order to fulfill the Torah commandment of not eating on Yom Kippur — a negative commandment of the highest severity! But that’s not the mainstream opinion.

In the case of pru u’rvu, not fulfilling the mitzvah would not be a case of transgressing a negative commandment, but rather, of failing to fulfill a positive one. Can we really tell someone that she must undergo potentially very expensive, very invasive medical treatments in order to do so? I would argue that a couple who can’t conceive naturally are considered “oness” — they aren’t capable of carrying out the mitzvah of pru u’rvu, and therefore, are not liable for failing to do so. Furthermore, without a definition of what “everything acceptable according to medical practice” is, I’m afraid the rabbi may be pressuring couples into undergoing an excessive amount of treatments, invasive treatments with low success rates, or “out there” treatments, since one can nearly always find a doctor who deems the next phase of treatments “acceptable.” This piece could be used by one spouse to pressure another into further treatments.

I think at the very least, there should be a clear line: “If you’ve done three rounds of IVF, you’re oness” or “If you’ve undergone a few rounds of treatment, you may be oness — talk to your LOR (local Orthodox rabbi).” Rabbi Melamed also claims that “even treatments that are not included in the regular health insurance, if most people who want to have children use them, they must be done even if they are expensive, in order to fulfill the mitzvah of pru u’rvu.” This blatantly disregards the principle of “chas Hashem al mamono shel Yisrael” — God worries about the money of Israel — i.e., the mitzvot were not meant to be a heavy financial burden.

  1. According to Rabbi Melamed, both men and women are obligated in pru u’rvu. Since Takanat Rabbenu Gershom precludes a husband from taking a second wife to procreate with, should he and his first wife have difficulty doing so, his first (i.e., only) wife takes on his pru u’rvu obligation when she marries him.

First of all, the rabbis made a very conscious decision to not  make women obligated in pru u’rvu. According to the Meshech Hochmah,*** this is because to do so would violate the principle of “Her ways are ways of pleasantness and her paths paths of peace,” which precludes halachically obligating a person that which their body cannot stand, such as childbirth, which is dangerous and life-threatening for women. Even today, when pregnancy and childbirth are much safer, they are still potentially life-threatening. The Shulhan Aruch and the Rema,**** both written after Takanat Rabbenu Gershom, obligate only men in pru u’rvu. Jewish marriage and divorce law in Judaism are incredibly unequal across the gender divide; I believe that Takanat Rabbeinu Gershom was meant to address this inequality.

Insisting that the takana comes with extra obligations for the woman, undoes the takana’s purpose — to slightly even out the balance of powers between the genders. Even if one does not share my interpretation, they should be worried about the implications of Rabbi Melamed’s statement: If the Takanat Rabbenu Gershom is a mutual agreement that “I, the husband, agree to no other wife, in exchange for which you, the wife, agree to take on my pru u’rvu obligation,” and the wife decides that she can’t bear another round of treatments even though her husband wants to keep trying, is that agreement now void? Can her husband now take a second wife without giving his first wife a get? Interpreting Takanat Rabbenu Gershom in this manner could have dangerous and far-reaching halachic applications.

  1. According to Rabbi Melamed, in order to fulfill pru u’rvu, couples must have at least 4 to 5 kids, because if they only have 2 kids (a girl and a boy, specifically), maybe one of those kids would die childless.

First of all, according to the Shulhan Aruch, one is only obligated to have two kids (a boy and a girl) to fulfill this mitzvah, so mandating 4-5 from the get-go strikes me as a chumrah (stringency) and should be acknowledged as such. Second of all, for a couple that needs IVF for every child, or a woman who has hyperemesis gravidarum with every pregnancy, etc. this instruction can take a huge toll on the woman’s physical and mental health. Asking those women to have four children would be asking them to violate the biblical commandment of “ve-nishmartem le-nafshoteichem me’od” — to carefully safeguard one’s mental and physical health — in order to fulfill the mitzvah of pru u’rvu.

Furthermore, since pregnancy and childbirth are still life-threatening, and fertility treatments may sometimes increase risks of certain cancers or require general anesthesia***** being stringent with regard to pru u’rvu means taking a lenient stance with regard to pikuach nefesh (the injunction to safeguard one’s health). Of course, some women have an easy time with conception, pregnancy, and childbirth. But making a blanket statement that all women are halachically obligated to have 4-5 kids, without acknowledging how difficult and dangerous this may be for some women, may result in women putting themselves in dangerous situations. It puts the onus on them to have the courage to approach a rabbi for permission — as a matter of fact, reading the article, at face value, one could be forgiven for assuming there was no point in approaching a rabbi, because there’s no room for permission out there. Additionally, some people find two kids to be very difficult to cope with, and telling them they must have two more could be a serious blow to their mental health and their marriage.

  1. According to Rabbi Melamed, having even more kids, according to a couple’s “ability and discretion,” beautifies the obserance of the mitzvah of pru u’rvu.

I thought, when I saw the words “hidur mitzvah” — beautifying the mitzvah — it was going to discuss raising the kids. But no, the hidur — beautification — is to have even more kids! After just telling a couple they need to have at least four kids, you’re telling them it’s even better if they have more.  That’s a lot of pressure. Now, a couple that considers themselves “mehadrin mehamehadrin” in their general mitzvah-observance might be silently mourning that they were never able to be “mehadrin” in pru u’rvu, because they have “only” five kids.

In general, I found five halachic values in this piece to be lacking:

  1.  Shalom bayit: This piece makes no mention of shalom bayit — peace in the home — which is an important halachic value. For example, the Talmud explains that God agreed to have His name erased doing the Sotah ceremony, even though doing so is a biblical prohibition, because the Sotah ceremony fosters shalom bayit by creating a rapprochement between the jealous husband and his wife. Undergoing fertility treatments can be extremely difficult to navigate as a couple. Pressuring people into excessive treatments or medical steps they aren’t ready for can lead to extreme marital discord, or even divorce. Furthermore, if a child is born, he or she would probably be better off born into a happy home. If one considers part of pru u’rvu to be raising children, then sacrificing shalom bayit in order to have children — or in order to have more children –may be counterproductive.
  2. Awareness: This piece displays no awareness of the physical and emotional toll that fertility treatments take on women. Of course, treatments affect both partners, but in general, whether the root cause of the couple’s infertility is the male factor, the female factor, or unexplained, it is the woman who takes the hormones and comes in for daily tests. It’s true that sometimes halacha requires people to do things that are difficult, but in that case, the halachic decisor should at least display an awareness and acknowledgement of the difficulties involved. This is, in my opinion, especially the case if a rabbi who is a man is paskening in a way that may place an extra burden on women. Awareness of the congregation to whom one is paskening has been a key element of halacha for centuries. For example, there is the principle of not decreeing something that would be too difficult for the congregation to keep; Maimonides believed that if such a decree is passed and the community cannot keep it, the decree becomes abrogated. Other examples include: extending pikuach nefesh laws to gentiles due to a concern for the safety of Jews living as a minority in a Diaspora, and allowing certain laws to be violated in certain cases  in order to maintain their human dignity. Additionally, given the burdens this psak does place on women, perhaps some words of encouragement may be nice, like a reminder of the righteous women who insisted on fulfilling pru u’rvu in Egypt under difficult circumstances, in whose merit the Exodus occurred — such as Miriam, who insisted her parents continue to try to have children despite Pharaoh’s decrees, which led to the birth of Moses.
  3. Pikuach nefesh: This piece made no mention of the halachic value of protecting one’s life, which is generally considered important enough to violate Shabbat for, or to require someone to eat on Yom Kippur in certain medical circumstances, even though eating on Yom Kippur incurs the extreme punishment of “karet.” I believe this is connected to my previous point: One can only consider the relevance of pikuach nefesh to the laws of pru u’rvu, if they recognize that treatments, pregnancy, and childbirth can sometimes endanger the lives of women.
  4. Chas Hashem al mamono shel Yisrael: Fertility treatments can be extremely costly. In Israel, they’re covered for the first two kids, but Rabbi Melamed is insisting that a couple try for at least four kids, which means at least two rounds of uncovered treatments — probably many more, since many couples need more than one cycle of treatment in order to conceive. In the United States, treatments can cost tens of thousands of dollars. There are stories of people crowdfunding their treatments, going into debt, or even bankruptcy. In general in halacha, if carrying out a mitzvah will be extremely costly, then that may be taken into account when paskening that halacha and may be used as a reason to rule leniently. This principle is expressed as “chas Hashem al mamono shel Yisrael”: God cares about the money  (i.e., financial wellbeing) of Israel. *******
  5. Other aspects of pru u’rvu: According to many poskim, it is possible to fulfill pru u’rvu by raising children. This is generally taken to mean adoption, however, even if a couple cannot adopt, perhaps they can have a large role in raising children in their extended family, thereby at least fulfilling an aspect of pru u’rvu. Similarly, there is a principle in Masekhet Sanhedrin that teaching Torah to someone makes them like that person’s parent, so perhaps people who cannot bear biological children could focus on that. Bringing these different ways to fulfill — or at least, partially fulfill — pru u’rvu at the end could give a bit of comfort.

If you’ve tried everything and it failed, you’re not completely bereft of fulfilling any aspect of this mitzvah. It would be nice to end with a list of childless Torah scholars, or, even a reminder that there are 612 other mitzvot you can fulfill, and that you can be a good person and a good Jew even if you don’t have kids. But I guess the entire point of his piece is that you CANNOT be a good Jew if you don’t have kids — which is perhaps the most upsetting thing about it.

*He believes parents are obligated to vaccinate their children.

** because why would this be covered by insurance?

*** His commentary to Parshat Breishit, paragraph 19

****Even Haezer Siman 1. Takant Rabbenu Gershom was universally accepted by the Ashkenazi community — i.e., The Rema’s community — but not by the Sephardi community — i.e., Rabbi Yosef Caro’s community, reflected in the main text of the Shulhan Aruch. He does mention the takana though and is clearly aware of it.

***** which always carries a slight fatality risk.

****** In the Sotah ceremony, which is biblically mandated, God’s name is put in waters which are drunk by the suspected woman, and thereby erased. The Talmud explained that God permitted for His name to be erased, in order to create rapprochement between the jealous husband and his wife, which is what the Sotah ceremony is meant to accomplish.

****** The official reason for extending the laws of pikuach nefesh is “ways of peace” -i.e. Of maintaining peace between Jews and gentiles. The source of  principle of only enacting gezeirot that community can withstand is Masekhet Avodah Zarah, 36. Maimonides says this in Hilchot Mamrim, 2:6. For  an example of human dignity overriding a negative commandment, one may pick up a rock on Shabbat in order to use it as toilet paper, even though in general, picking up rocks would be forbidden on Shabbat. For a great book on human dignity in halacha, I recommend  Rabbi Daniel Sperber’s Darka Shel Halacha.

******* The Meiri on Hullin 49: quoted in “Darka shel Halacha” by Rabbi Daniel Sperber. Translation my own: Any time a teaching comes before a scholar and he has the ability to allow something with ease, without it being a source of debate…it is not good to be overly pious and to dwell too much on the stringencies. Rather, the scholar should concern himself with the financial welfare of the Jewish community, just as the Torah concerns itself with the financial welfare of the Jewish community.

About the Author
Shayna Abramson, a part-Brazilian native Manhattanite, studied History and Jewish Studies at Johns Hopkins University before moving to Jerusalem. She has also spent some time studying Torah at the Drisha Institute in Manhattan, and has a passion for soccer and poetry. She is currently pursuing an M.A. in Political Science from Hebrew University, and is a rabbinic fellow at Beit Midrash Har'el.
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