As these lines are being written, Israel’s “law of continuity” is making its way through the Knesset halls, with the possibility of becoming the law of the land. The law would allow families of fallen Israeli soldiers to harvest sperm from the body of their fallen sons and use it in an IVF treatment, hopefully creating life and have a grandchild from the son who died with no children. While it is not my place to tell Israelis how to run their healthcare systems or legislation, seeing other rabbis weigh in against this law on “ethical grounds,” when those do not exist, is appalling. Sadly, the same arguments made now to the families of fallen soldiers have been made in other settings of reproductive Halacha, in some cases causing eternal damage to those who could have born children. We cannot remain silent in the face of these misplaced arguments.
While there is no question that there are legitimate legal, halachic, public policy, and ethical dilemmas about bringing children to someone who has already died and cannot consent, other arguments made in this case have been made elsewhere, arguments that are hard to support.
Take, for example, the argument made against this law by the PUAH Institute for medical Halacha, arguing that by having such a child, one is “bringing an orphan to the world,” a hardly moral argument and one that runs against the very existence of the Jewish people.
Going back to our days in Egypt, the Jewish people always had to reckon with the notion of bringing children into a world full of travesties. This was the reason Amram, the father of Moses, was famously and wrongly separated from his wife. Yet, “it is in the merit of the righteous women that our forefathers were redeemed from Egypt.” While the men opted for not bringing children into a world of slavery and pain, the women recognized that taking such a position would be the end of our people. Bringing children into this world is an act of incredible hope and faith, one that has been the very essence of being Jewish. To tell people that they may not have a child because the child will be an “orphan” is hard to justify in the face of our history. This same argument was made with regard to single women having children on their own with IVF, and somehow, shockingly, one generation later, we are not seeing any kind of horrible fallout from those few “orphans” created under those circumstances.
It is appalling to see these strong moral voices who are willing to tell people when they should not have children, an act that is morally appalling in and of itself — how can you, a rabbi who has children, go and tell ANYONE that they should not have children?! Who can assume the Torah scholarship and responsibility to make such a decision?!
— עכשיו 14 (@Now14Israel) June 28, 2022
One of the greatest scholars of the past generation was approached by a school principal as to whether to expel a child from a yeshiva day school, something that would risk the child’s future. To the shock of the school principal, the rabbi told him that to decide a case on capital punishment, one required, in the times the Temple existed, a Sanhedrim — Jewish high court — with 71 Torah scholars. Since he did not have that power of authority, and since expelling this child from school might jeopardize his entire future, the great rabbi felt he lacked the authority to allow for his expulsion.
The school principal understood the message: making a decision that may impact someone else for life was not something anyone could take lightly. Sure, in some cases, a halachic decision must be made. For example, is an intubated patient who is considered medically dead also halachically dead? One must weigh in on that decision. Yet for a rabbi to arrive on the scene with no compelling halachic need, no clear moral obligation, and without being considered the greatest halachic authority in a generation, and to tell people they may not have a child or a grandchild after their only son died in combat, is something difficult to understand. How so much more so when that rabbi has a child of their own. This is not only true for Israel’s recent “law of continuity,” but also other fields of fertility halacha where there is no clear halachic prohibition being dealt with.
Furthermore, for some reason, the voices who argue against certain IVF treatments using the “don’t bring an orphan into the world” and the child’s wellbeing argument, are for some reason all too silent when it comes to a family with 14 children living in poverty and struggling to raise their children. I would never tell that family, or any family, not to have a child. But to ignore the many cases in which children are brought into the world under truly difficult circumstances, including poverty, a parent with a known personality disorder, or other cases in which we know the child will genuinely suffer, and invoke this only in cases where usually families will be dedicating a great deal of love and resources to the child born, is not very persuasive.
Another argument made against this “law of continuity” is that it is not included in the biblical commandment of “Pru Urvu — be fruitful and multiply.” This argument has been made by some in arguing against IVF treatments altogether (a line of argument that has thankfully very much disappeared from every segment of the Orthodox community). Once again, to go and tell parents or grandparents that their only hope of having a child or a grandchild should vanish because it does not meet the obligation of Pru Urvu is strange and morally doubtful.
It is one thing to say that if someone came to the rabbi and asked them about taking this path, but once the person is committed to this path, it is hard to see how this logic can apply. Interestingly, do you know who else did not have the obligation of Pru Urvu, the biblical responsibility to be fruitful and multiply? Abraham. And Sarah. And Isaac. And Rebecca. And Rachel. And Amram, the father of Moses. And Hannah the more of Samuel. And many other Jewish women who lived through the most difficult of circumstances and yet chose to raise another generation of children. So, while no one should be telling a woman about what reproductive choices she should make, to see a rabbi telling women what choices to not make — when the question was not even asked — seems out of line.
The PUAH Institute went further in opposing the law of continuity, making the breathtaking argument that “there is a concern that a child born by will of the parents of the fallen soldier will serve as a memorial wall to a son that died. The Torah sees internal value to every soul that enters the world. It does not seem ethical for children to be born to memorialize the parents who passed away or any other purpose other than having a child.”
While these questions are best left to those who will be assuming responsibility for bearing and raising the child, to argue that considerations of memorializing are antithetical to the Jewish notion of having a child is to suggest never having read the Tanach once. From the story of Tamar in the Book of Genesis to the mitzvah of yibum (levirate marriage) in Deuteronomy to the famous story of Ruth, the idea of children carrying the legacy of those who are no longer is as Jewish as it comes. As a Lithuanian Jew, I am reminded of the many Jews who named their only child “Kaddish” since he was their only child. I do not recall any rabbi reprimanding the parents of Israeli leader Kaddish Luz, George Kaddish, or many other Lithuanian Jews, among whom the practice was normal at the time. While one can question the social advisability of naming your child “Kaddish” when he is your only child, surely the idea of children being the carriers of the legacy of those who are no longer with us is as Jewish as it comes.
Yet, finally, the statement says the quiet part out loud and confesses to what is, unfortunately, the reality in all too many cases of opposition to fertility treatments: control. “Our position is that the birth of a child without a father figure is inconsistent with Jewish law.” While anyone is entitled to their options on the ideal way of raising a child, stating those opinions as Jewish law — and all the more so, influencing Israeli law to prevent the grandparents from having a grandchild, even if that is the only grandchild they will ever have, is profoundly disheartening.
While the question of postmortem IVF treatments is rare and thankfully less than one in a million among our people, some of the destructive patterns used in this conversation are not.
Couples struggling with infertility most often do so in silence and sometimes even in shame. Halachic directives are rarely questioned, and the subject is often one in which few have expertise. There is no moral justification I can think of for any rabbi — much more so one who has kids of his own — to tell others they cannot have children. If indeed such a directive is given, it must come with the same consideration given to questions of life and death. The biological desire for children, even among non-humans — is often stronger than the desire for life itself. My hope and prayer is that we all do our best to stand by those seeking to have a child, much more so standing with those who lost their own child in the service of defending the Jewish people while sent by their people to serve in the IDF.