The case for Halachic donor conception

Much has been said about the Shidduch crisis, the current situation in which a large number of orthodox women find themselves with no marriage prospects on the horizon. Very little has been said of what these women ought to be doing with themselves. If we can all agree orthodoxy has a discrepancy between the numbers of men and women, which will end up getting married, what is the community’s plan for the women, who will never get married? At the least, we should not deny them the right to have what they were inspired to have their whole lives: children. 

The first of the six hundred and thirteen commandments is to procreate and have children. Interestingly, this is a commandment imposed on men only, not women. Some attribute this to the fact that the Torah would never command a woman to go through something as complicated as having children unless she wanted to do so. That being said, Tanach and life, are filled with stories of women passionate about having children. “Give me children for if not I will die”, Rachel famously stated. 

The Torah also strongly binds having children with marriage. As premarital sex is forbidden by Jewish law, the only way an observant woman can have a child is through marriage. With the emergence of fertility medicine, women have options they have never had before, in this case, the option of having a child without marriage. 

Not long ago, I was asked to be part of a panel discussion on the topic and share Halachic perspectives on donor conception; I agreed. Not taking the issue lightly, I did a great deal of homework on this topic. Reaching out far and wide to prominent rabbis, poskim, and halachic deciders from the first level, I learned a great deal and thought it would be wrong not to share it. Here is what I found:

Firstly, even rabbis who would permit donor conception would not go on the record permitting donor conception for single women. 

Secondly, the objections are mostly social—not halachic. 

Thirdly, rabbis are willing to listen. Several rabbis who know a great deal more than any amount of Jewish law that I will ever know took the time to listen and were willing to change their positions in light of changing facts and changing realities. 

Forth, even halachic objections can be addressed, especially as medical realities in the field of fertility have changed. 

Fifth, something being the lesser of two non-ideal outcomes does make a difference and allow for leniencies. 

Here is what this means: the main “legal” halachic concern is that having children as donor-conceived can lead to a child marrying their biological sister or brother without even knowing it. What changed? Genetic testing. If there is a way to ensure that a donor-conceived child get genetic testing before getting married—especially if their prospective partner is donor convened—the concern of mamzerut and marrying a relative can be averted. Furthermore, the increasing awareness of children’s need to know who their biological parent is, an increasing number of states anchoring that right in the law, makes this issue less of a concern. Another thing this changes is the need to use the sperm of a non-Jew when wanted to avoid issues of mamzerut. 

The halachic public policy social arguments against donor conception did not take into account one simple factor: no young—or old—woman is dreaming of becoming a single mom. No twenty-year-old is asking the rabbi to replace marriage to a husband with a test tube baby. It is usually women who are approaching their higher thirties and have tried really really hard to get married and fear they will be losing their fertility if they do not make a move now who would like to conceive via a sperm donation. Furthermore, women who do decide to move forward with the donor conception option are not abdicating the possibility of marriage. They are still pursuing marriage. In no universe is donor conception a threat to the institution of marriage, as some have argued. 

Another social argument mentioned in the poskim (a few decades back) is that normalizing the notion of single pregnant women will legitimize premarital sex and promiscuity. This argument is no hardly relevant today, fifty years after it was made. The widespread availability of various methods of birth control and other medical advances take away the crux of this halachic public policy question. 

Respectfully, what was most difficult to understand were the halachic social policy arguments for the child’s wellbeing. “You cannot permit bringing a Yasom(orphan) into the world,” several rabbis argued. It is morally wrong to bring a child into the world into such conditions. “Does this mean that if someone living in a two-bedroom apartment with nine kids in poverty you would tell them to stop having kids?”, I asked. No, was the answer. “Does this mean that if someone has a chronic disease and will die in a few years, you would tell them not to have a child?” I asked. No was the answer.

“Does this mean that if you have a student in your Yeshiva who everyone knows has some kind of personality disorder, you will tell them never to get married?” I asked. Again, no was the answer. Barring few exceptions, Judaism has not seeded with showing concern for a child’s ideal upbringing by objecting to their coming into existence. From Amram fathering Moses, Boaz fathering the house of David and dying the next day, and almost every one of our grandparents having children in the shtetel, or wherever it may be, under truly horrible and uncertain conditions, Judaism has always favored the baby option. In the lack of very strong halachic grounds, who can have the confidence to tell a woman never to bear children? Who can stand before their maker, or their fellow human being, with such a decision on their shoulders? 

One of the most compelling and touching statements I heard from a prominent posek on this topic. While he did not believe in the permissibility of donor conception, he never tells women not to do it. Why? Because if he is wrong, which is a possibility, he would never want to be responsible for such a decision, which can be found to be wrong only after a woman lost her window of fertility. I found this answer to be particularly moving and decent. All too often people rush to conclusions on what seems to them like an interesting intellectual question, not recognizing it is someone’s life hanging on the balance. The humble recognition of the possibility he may be wrong, even as he recognized the weight of the decision, reflected a moving and gracious decency we should all embrace when discussing such matters.  

The powerful sentiment of the mitzvah of Yibum cannot be ignored in this context. “If brothers reside together, and one of them dies having no son, the dead man’s wife shall not marry an outsider. [Rather,] her husband’s brother shall be intimate with her, making her a wife for himself… so that his [the deceased brother’s] name shall not be obliterated from Israel.” Deuteronomy (chapter 25).

Before speaking on this topic, one of the calls I made to a rabbi and posek and greatly respect, took place shortly before Shabbat. Clearly, I was not calling him at a good time. I told him what I was calling about and offered to speak at another time if this did not work. He did not have time to elaborate. He did tell me: “I want to you know that it is an Issur Chamur (severe prohibition) for a woman to get pregnant on her own!” Whey I tried getting into details, he told me he did not have time and had to go as Shabbat was approaching. I was shocked. I knew the opinions of those who objected, and none of them argued a “severe prohibition”. When I happened to meet this respected rabbi the next week, I asked him about it. I told him that while I respect his social/ halachic public policy concerns, we both know there is no Issur Chamur (severe prohibition) involved. He agreed and agreed it was obvious. “God Almighty”, I thought to myself. Imagine what would happen if I had been a woman making what is arguably a life and death decision, and I would bet my life on this phone call, what would happen then? Would I be able to come back in thirty years and hear an apology for a poorly thought out answer that has changed my life forever? 

Referring to the prospect of leaving this world childless the Torah uses the term “that his name shall not be obliterated from Israel”, it does not get more powerful than that. Women who want to have a child as they reach the age in which they are concerned about their fertility prospects should find a warm welcome in orthodox communities. Orthodox schools that rightfully teach young girls that being a mother is the most sacred mitzvah in the world, should not change their tone on their graduates once they find themselves affected by the shidduch crisis without a husband yearning to become mothers. Child-centered communities should not turn their backs on their own members who choose to have children despite the pain of not finding someone they could marry. Families should embrace 

Yes. Women are exempt from the halachic obligation to procreate. Women should never feel they are obliged to have children when they do not want to, in our case, if they did not find a suitable match. However, if there are women who are passionate about pursuing a child even though they have not found a husband, we must make sure they get the full support of the orthodox community; surely they should not be discouraged. 

Besides for the loss of potential life and children, there are many halachic downsides in making donor conception taboo in the orthodox community. One simple one is the notion that it is better to get a non-Jewish sperm donor in cases of donor conception. The primary rationale for the use of non-Jewish sperm, despite the various objections to it, is the concern that the child grow up to marry someone related to them. If we were more open and clear about donor conception and guided people to donor conception with the instruction, they find a way to make sure the child knows who their father is; many of these concerns would subside. Additionally, the widely unaddressed field of egg donation in the orthodox community, often done in secrecy and shame, leads to far far more significant halachic concerns that come with pregnancy out of wedlock. Children who are born with a non-Jewish egg donation may not be Jewish according to many opinions, and most rabbis agree they need a giyur lechumra—a conversion ritual just in case, and that the child be notified of that status. 

Other downsides of keeping donor cocenption taboo or socially unacceptable involve less usual stories. These include Ulta-orthodox mothers who are married and can’t conceive using surrogates. Due to community due to current social norms, they are not sharing this information with others–including the child– creating obvious halachic trouble.

Then there are the most extreme cases in the headlines these days which include of baby trafficking in the ultra-orthodox community known as the Eifo Hayeled – where is the child, affair

Far from being a posek, I find myself compelled to break the news that is no news: there is a halachic way for an orthodox single woman who wants to, to conceive with a sperm donor. There is no major posek who will say this out loud, but if this is something important to you I urge you to speak to one, two, or three and present all of the facts and unique circumstances. Not every one of them will run to say it is a good idea, not every one of them will understand the circumstance you are living in. Many of them will listen, understand, and care.

It is time the orthodox community embrace the concept of halachic donor conception even among single women in an open and sincere way. May God bless those working to strengthen marriages and families, there are so many things they should and could be doing. In no way is objecting to older single women serving that purpose, nor is it threatening or substituting for traditional families. 

May we all live up to and be blessed with the words of Isaiah “For I am the Lord, Who loves justice…and an everlasting covenant I will make for them. And their seed shall be known among the nations, and their offspring among the peoples; all who see them shall recognize them that they are seed that the Lord blessed. I will rejoice with the Lord; my soul shall exult with my God, for He has attired me with garments of salvation, with a robe of righteousness He has enwrapped me; like a bridegroom, who, priestlike, dons garments of glory, and like a bride, who adorns herself with her jewelry.” (Isaiah 61) 

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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