Fertility treatment in Halacha

Fertility treatment in Halacha:[1]

The three main types of fertility treatments are 1) medicines to assist fertility, 2) surgical procedures, and 3) assisted conception. Its Halachic perspective is dependent on the type of treatment being used. Some treatments do not touch upon any Halachic issues [i.e. medicines to help with ovulation[2], sperm count, and/or other fertility drugs[3]], and on the contrary are considered a Mitzvah to do. Others touch upon several potential Halachic issues.

Potential Halachic issues: Male fertility testing touches upon the issue of Zera Levatala.[4] Fertility treatment through assisted conception [i.e. IUI[5], IVF[6], Surrogacy and donor eggs[7], donor sperm[8]] may touch upon any of the following Halachic issues: 1) Zera Levatala[9], 2) Nidda[10], 3) Eishes Ish[11]; 4) Mamzeirus[12], 5) Yichus[13]; 6) Medical risks[14]. Aside for the Halachic issues involved, there may also be Hashkafic reasons to abstain from fertility treatment or certain types of them, even when there is room to be lenient according to Halacha. Practically, most Poskim and Rabbanim give their consent for IUI and IVF treatment between the couple, under mitigating circumstances and condition.[15] However, the mainstream rabbinic approach is to negate the use of donor sperm, donor egg, and surrogacy, with some being open for cases of exception.[16]

Halachic guidance: Due to the above, every couple who is contemplating fertility treatment is to bring up the matter to a qualified Rav for guidance. There are a number of organizations, under the auspices of Gedolei Yisrael and Gedolei Haposkim [i.e. Machon Puah], who help couples with fertility treatment, both in Halachic and medical guidance, as well as in financial support, to which a Rav can refer couples to. To note however, that not all treatments offered under these organizations have the consent of all Poskim, as well as some treatments are only permitted after a certain amount of time has passed without the couple meriting to have children[17], and hence the couple is to speak with their Rav for direction as to which treatments are an option for them to do.

The Rebbe’s approach:[18] It is well known that the Rebbe was not forthcoming with directing couples to have certain types of fertility treatments [i.e. IUI, IVF] and on the contrary protested against those who informed him that they will be doing the procedure due to in his opinion it being Halachically forbidden.[19] Nonetheless, it is claimed that in the year 1992 the Rebbe gave his consent, or at least withheld his protest, for artificial insemination to be performed under certain conditions, and under the strict supervision of a Rav.[20]

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[1] See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 2 pp. 545-593 regarding IUI; pp. 817-925 regarding IVF and surrogate motherhood; Vol. 6 pp. 337-393; Sefer Ratz Katzevi the volume on fertility treatment in great length; Tzitz Eliezer 13:97 regarding IVF with other man’s sperm; Surogate motherhood; See Getting Closer pp. 87-94 for counseling ideas for couples suffering from infertility

[2] See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 6 pp. 376-380 regarding a woman whose ovulation occurs during her Nida period, and the various halachic solutions and options available, at the in today’s times this is mostly solved with the help of medication and that there is less no longer a need to resort to other Halachic compromising solutions.

[3] Clomifene citrate (Clomid); Metformin; Gonadotrophins; Bromocriptine and Cabergoline; Antioxidants and vitamins.

[4] It is debated amongst the Poskim whether releasing seed for this is forbidden due to Zera Levatala. Practically, although the main approach is to be lenient, there exist regulations regarding when and how this may be achieved. For example, it is only permitted after a certain amount of years have passed without the couple having children, as per consultation with a Rav. Likewise, in order to diminish in the level of prohibition as much as possible, it is to be done in a method that is most Halachically acceptable, as per direction of the fertility doctor and consultation with the supervising Rav. [See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 6 pp. 368-374]

[5] See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 2 pp. 545-593 regarding IUI

Definition: Intrauterine Insemination (IUI) Healthy sperm is collected and inserted directly into the uterus during  ovulation.

[6] See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 2 pp. 817-855 regarding IVF

Definition: In Vitro Fertilization (IVF) Eggs are taken from the ovaries and fertilized by sperm in a lab, where they develop into embryos.

[7] See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 2 pp. 855-876

[8] See Poskim in Encyclopedia Refuit Hilchatit ibid footnote pp. 566-580 [Jewish sperm donor] pp. 580-583 [Gentile sperm donor] pp. 583-585 [sperm bank] 585-586 [single woman]

[9] It is debated amongst the Poskim whether releasing seed for the purpose of IUI or IVF is forbidden due to Zera Levatala. [Stringent: See Poskim in Encyclopedia Refuit Hilchatit ibid footnote 29; Lenient: See Encyclopedia Refuit Hilchatit ibid footnote 31] Practically, although the main approach is to be lenient, there exist regulations regarding when and how this may be achieved. For example, it is only permitted after a certain amount of years have passed without the couple having children, as per consultation with a Rav. [See Encyclopedia Refuit Hilchatit ibid footnotes 40-41] Likewise, in order to diminish in the level of prohibition as much as possible, one is to choose a method that is most Halachically acceptable, as per direction of the fertility doctor and consultation with the supervising Rav. [See Encyclopedia Refuit Hilchatit ibid footnotes 51-58]

[10] The issues are twofold: 1) Does the procedure turn her into a Nida. [See Poskim in Encyclopedia Refuit Hilchatit ibid footnotes 49-50,] 2) May it be done during her Nidda days? [See Poskim in Encyclopedia Refuit Hilchatit ibid footnotes 59-64]

[11] This issue is applicable when using sperm that is not of the husband, which can occur intentionally [i.e. donor, or medical malpractice], or unintentionally when there isn’t proper supervision. For this reason, it is imperative for there to be rabbinic supervision in the clinic.

[12] This issue is applicable when using sperm that is not of the husband, which can occur intentionally[i.e. donor, or medical malpractice], or unintentionally when there isn’t proper supervision. For this reason, it is imperative for there to be rabbinic supervision in the clinic.

[13] This issue is applicable when using sperm that is not of the husband, which can occur intentionally [i.e. donor, or medical malpractice], or unintentionally when there isn’t proper supervision. For this reason, it is imperative for there to be rabbinic supervision in the clinic. Likewise, this question is relevant to surrogacy and donor eggs.

[14] This is applicable through IVF treatment. See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 2 p. 848

[15] See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 2 pp. 545-593 regarding IUI; pp. 817-855 regarding IVF

[16] See Encyclopedia Refuit Hilchatit [Shteinberg] Vol. 2 p. 855

[17] See Encyclopedia Refuit Hilchatit ibid footnotes 40-41

[18] The Rebbe’s adamant opposition to certain fertility treatments, namely IVF, is well-documented both in written answers and in “Sunday Dollars” encounters on video. See Sefer Asia 12:227-235 for and article of Rav Avraham Baruch Pezner and Rav Yosef Simcha Ginzberg on the directives of the Rebbe on the subject of IUI and IVF

[19] A quote of some of the Rebbe’s responses, recorded in the above Journal, in the 90s: Regarding IVF “a copy of the letter of the Rabbi who permitted this.. It is obvious that I did not write a blessing for this procedure..”; “Is it permitted according to Torah?”; “I believe it is forbidden according to the codes of Jewish law and certainly you should not do this at all as is obvious.”; “As you write, this is also opposite of the Torah, and to spend money to transgress the code of Jewish law.” “He [the man who permitted this procedure] is not a rabbi but rather a doctor” It requires clarification if this is permitted according to Jewish law” “As it is publicly known, I am not in support of this [IUI and IVF]. And whomever wants [to do it] should ask Rabbis, and don’t ask me again on this matter.” “P.S. It is publicly known the opinion of many – against IVF treatment, and similar treatments.”

[20] Did the Rebbe change his mind regarding fertility treatments? See Sefer Asia 12:227-235 for an analysis of the Rebbe’s opinion, and for a collection of responses in which the Rebbe did not forbid the procedure, and at times even gave his blessing. Rabbi Menachem Burshtein, head of Machon Puah in Israel, in an interview was asked the following question: There is a rumor, that the Rebbe permitted fertility treatments when done under ‘Machon Puah,’ being that the Machon is under the leadership and supervision of Israel’s former Chief Rabbi Mordechai Eliyahu OBM, is there any truth to this rumor? His answer was as follows: Yes indeed. It was known in Chabad that the Rebbe was against fertility treatments, but when I visited the Rebbe a short while before Chanukah 5752, and reported that the treatments performed by Machon Puah are supervised by Rabbi Eliyahu, the Rebbe supposedly ‘changed his mind.’ The reason I used the word ‘supposedly’ is because it’s clear the Rebbe didn’t change his mind. The Rebbe’s view was, that these treatments were prohibited due to various Halachic problems which are part of the treatment, but when the Rebbe was told that the treatments are being done under the supervision of Rabbi Eliyahu, a man the Rebbe trusted, the Rebbe agreed. [Derech Ha’melech’ magazine] However, in a later clarification he said: “Heaven Forbid! I didn’t say that the Rebbe changed his mind, the opposite is true. What I said was, that Rabbi Mordechai Eliyahu sent me to the Rebbe to report that the treatments in Machon Pu’ah are under his supervision. When I came to the Rebbe, I asked the Rebbe’s secretary, Rabbi Leibel Groner, to give over my message to the Rebbe, and he gave over the message, and the Rebbe then approved it.”