Barbara Pfeffer Billauer
integrating law, policy, religion and science

The Embryo and the Agunah

Embryo freezing by vitrification: an advanced form of cryopreservation, courtesy Kumi Sakurai
Embryo freezing by vitrification: an advanced form of cryopreservation, courtesy Kumi Sakurai

In Jewish (and Israeli) law, divorce is permissible, but only if granted “voluntarily” by the husband. This means that the bill of divorce, called the “get”, must be freely given with no constraints imposed on the man. This lack of reciprocity or unequal parity does not stop with the husband’s having complete control over consent. Greedy husbands often impose outlandishly coercive measures on the wife – tactics that might otherwise be considered extortionary, such as demands for payment of exorbitant sums in exchange for the husband’s “voluntariness”. Here’s a new outrageous demand: release the couple’s previously frozen embryo to the husband — in exchange for his voluntary consenting to furnish the get.

For the past 18 months, this precise situation has been vexing a wife, let’s call her Mrs. Agunah, who has been vainly trying to secure a get in a Rabbinic court (where divorce proceedings are venued in Israel).

Curiously, the Israeli Supreme Court has already sounded in on the issue of “whose embryo is it?” But, in the religious-court, where our Mrs. Agunah is both seeking a divorce and refusing her husband’s demand of custody of their embryo, neither the parties, nor their attorneys, nor the Rabbinical judges seem to have a clue what Israeli law requires. Nor do they have even the slightest concept about general legal scholarship in the field. We’re back in the dark ages here – even as the Rabbinical court may think they are favoring the wife.

As most of us know, where the husband won’t give a get, either for benign reasons (he’s in a coma, missing in action, a prisoner of war, etc.) or malignant ones, i.e., because his demands aren’t met or general recalcitrance or pure spite, the wife is considered a “chained woman” – an agunah – and cannot re-marry. The husband, however, may, at least halachically. This archaic state of affairs in Jewish law has been lambasted by feminists. And while their efforts cluckingly are supported by many Rabbis– the official Rabbinate continues to be notoriously lax in doing anything to actually change the halachic (Jewish legal) status quo.

Perhaps worse than the overt discrimination the current state of divorce law engenders, however, is the women’s descent into victimhood – not only in status, but in mindset. Their thinking is clouded by victim-mentality. Not only are these women chained to their marriage, but they have lost the ability to seize any negotiation-advantage. The current agunah situation fosters such relational disparity and breeds such hatred and contempt (even more than the traditional acrimonious divorce), that the woman (and her attorneys) appear unable to appreciate how best to represent the woman’s interests.

Is there a way forward – at least in the way the agunah views herself?

Enter the embryo.

In 1978, the first test-tube baby, Louise Brown was born. This technology heralded tens of thousands of babies being born via In Vitro Fertilization (IVF). In the 1990s, advanced techniques perfected freezing of gametes (egg and sperm), and the product of their union, the embryo. Supposedly this frozen embryo can survive, ready to be thawed, for decades. Beginning from the turn of the last century, thousands more had their reproductive products frozen, a process called cryopreservation. In fact, gamete cryopreservation is now medically indicated for children about to undergo chemotherapy which might impair their ability to produce sperm or egg. That’s the good news.

The bad news concerns what happens when sperm, egg or embryo are later abandoned or rejected, or where ownership is contested – as in divorce. Who owns the embryo, then? And while the parties ruminate or litigate over its disposition — the embryos remain on ice. Some estimates claim more than 500,000 embryos currently reside in deep freeze in the US.

Last week, we read about “Mrs. Agunah”, who presents a novel variant of the agunah– problem. It seems that in better days she and her husband had cryopreserved some embryos in the course of IVF. One embryo subsequently was fertilized, and the couple shares a child. The husband, who is infertile as a result of cancer therapy, now demands — as a condition for his “voluntarily” giving the divorce– that the wife grants him ownership of the remaining embryo, to be implanted in a surrogate, thereby enabling his fatherhood.

Appalling? Perhaps. Halachically permissible? Nope. The Rabbinate ruled that the embryo belongs to neither parent. But, the parties are still dickering over the divorce and the parties are locked in limbo.

Now, let’s get real. Practically and legally (and it’s always easier to “get real” in hindsight or based on a newspaper story without knowing the nitty-gritty detail – but there’s enough here to make some fairly certain pronouncements), there has to be a better way to resolve the situation.

Practically speaking, the wife – Mrs. Agunah – is in her early forties and wants another child. She fears the delay in divorcing will hamper her chances of conceiving. She doesn’t have the luxury of time. She is anxious. She is angry. It’s just too bad she let the husband know how anxious she feels about securing the get.

Now for the husband. He, too, wants another child. But he is infertile. He doesn’t have the luxury of fertility. He is truly desperate. But he has the luxury of time — and the ability to posture and assume the habitual stance of someone with the upper hand.

And with this stand-off, reason and rationality cease.

Now, let’s change the image. Conjure a scenario where the wife gets her get– pronto. Now what? Who guarantees that she finds her new Mr. Wonderful right away? And even if she does, who says she will conceive? She’s rapidly approaching the age where fertility collapses and IVF-insurance benefits for non-donor eggs cease (at age 45). And even if she is fertile, who says her new husband will be?

If she so badly wants another child – maybe her best/only(?) chance is with the husband she now has? Had she not had any children with her current husband, one might consider it advantageous to cut off all dealing with her ex. But she already has one child with this man – she’ll be forced to deal with him until that child is grown. So, perhaps it’s wiser to preserve her chances of child-bearing via an embryo who will also be a biological sibling for her current child?

Now, let’s assume she also prevails on the issue of embryo-custody–-what would she do with it? Donate it to an infertile couple with no biological connection to the embryo? Pay (expensive) storage fees forever? Destroy it? What good to her is the embryo if she doesn’t use it?

It now seems that the husband is making more demands. The Rabbinic court ruled that the embryo belongs to no one, but one judge strongly encouraged Mrs. Agunah to allow the husband the use of the embryo. It seems she has reluctantly agreed, but various details are derailing the resolution of the matter.

The wife’s strategy to get her divorce seems to be an appeal — via the press — to corral community sympathy by villainizing her husband, all the while denying him use of the embryo. Hence we see the caption: ‘Divorce refuser demands embryo in return for ‘get’.

Now, you might ask, why should she be “forced” into allowing him to use the embryo? It’s half hers, isn’t it? And that’s the operative word – “forced.” Because, legally speaking, it’s not hers at all, not even half-way. See below.

Sadly, had Mrs. Agunah kept her desperation close to her vest, had she been willing to allow the husband use of the embryo from the outset– she might have had the upper hand in the negotiation-dance. She could have spelled out her terms and conditions. If she only had learned how to negotiate from strength. If only she had only negotiated from knowledge – knowledge of relevant Israeli law, for starters.

Under American law, she might have prevailed. Generally, American courts won’t compel anyone to allow the birth of an embryo against their will. But these cases rely on a pre-IVF contractual agreement– which apparently doesn’t exist here. And where it does, scholars argue that courts should void them because contracts concerning family relationships violate public policy, and hence are unenforceable. Others claim that it is impossible to contract ahead of time to something as vital as the decision to destroy an embryo. Some states require that human embryos either must be implanted or stored (indefinitely) until they are “adopted”. Enlightened American legal opinion now favors the parent who seeks to progenate. Many scholars claim that the mere agreement to enter into IVF waives any right to deny the other spouse the right to bring that pre-embryo to term later on.

In America, the issue is still unresolved. But, in Israel, it is: the party who wants the embryo to fertilize and to parent receives custody. The case of Nahmani v Nahmani is dispositive. There, the wife wanted the embryo – her last chance at parenthood — and she got it. But the court made clear that had the situation been reversed, they would have granted the husband the embryo for the purposes of birthing a child.

The final Nahmani decision should make those involved in our Mrs. Agunah case blush in shame and ignorance. There, in a gender-neutral decision, an 11-member panel of the Israeli Supreme Court stated: “Human society exists by virtue of procreation… the natural instinct to be fruitful and multiply is a religious commandment of the Torah.”

The Supreme Court held that both parties entered into the IVF procedure with knowledge aforethought. Neither party was forced to procreate. “Both parties made an intentional, voluntary investment of time, genetic material, and financial resources in their effort to have a biological child. [The court does] not find it credible that anyone would undertake such an intimate and heartfelt endeavor with the understanding that the other partner could unilaterally change his or her mind after the fact and have the embryos destroyed.”

As Justice Turkel stated: “The ethical weight of the right to be a parent is immeasurably greater than the weight of the right not to be a parent.” Paradoxically, this holding is both more consistent with Torah views than that espoused by the religious court, as well as more consistent with the national ethos of the country.

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Even if our Mrs. Agunah prevails in religious court – at the end of the day, at the end of months of delaying her get –secular courts will require her to relinquish the embryo to the husband. So, what’s she fighting about – she’s only delaying the resolution she so desperately wants?

And so our Rabbinic Court has trespassed both on secular law and religious philosophy. Mrs. Agunah, still sans get, believes her rights have been trampled upon. Sandwiched between the asymmetry involved in the get procedure, she is made to feel the victim, and this victim-mentality impairs her ability to make and negotiate the best decisions.

The whole stage of Jewish divorce is lop-sided and skewed, so much so that the victimization of women becomes so insidious, we don’t even realize the impact and effects. We knee-jerk think that any Rabbinical suggestion, for example, that Mrs. Agunah allow her husband use of the embryo, is anti-woman. It’s not. It’s the forum and the procedure, the vesting in the husband of complete decision-making power, that is.

This structure that allows the two separate issues, use of the embryo and the divorce (get), to be commingled is per se disadvantageous to the woman. And, it’s high time for parity to be given to the voices of both sides. Maybe then we might find decisions unencumbered by arbitrary macho control. Maybe then women could negotiate from strength – and both parties would come out ahead. But until the religious legal structure gets rectified, women should at least learn to leverage the system to their advantage. To do that, women (and their attorneys) need to know the secular law as well as Jewish law, they need to be able to think strategically and practically, and they need to learn negotiation tactics.

Jewish divorce should not be for sale. Embryos should not be for sale. And a woman’s self-esteem should not be for sale. But until that happens, we need to learn how to harness the system as best we can.

About the Author
Grew up on Long Island, attended Cornell University (BS Hons.)and Hofstra ULaw School, MA in Occupational Health from NYU, Ph.D,. in Law and Science from Uof Haifa. Practiced trial law in New York City, Taught at NYU, University of Md Law School, Stony Brook School of Medicine. Currently Research Professor of Scientific Statecraft, Institute of World Politics, Washington, DC, Professor, International Program in Bioethics, University of Porto, Portugal. Editor Prof. Amnon Carmi's Casebook on Bioethics for Judges, Member of Advisory Board, UNESCO Committee on Bioethics. Currently residing in Netanya, Israel.
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