RABBI CHAIM JACHTER (KolTorah.org)
It is well-accepted in many segments of the Orthodox community to use a Mashgicha/Halachic supervisor for all artificial reproductive techniques. However, an American Orthodox couple undergoing IVF who do not live in a large Orthodox community reached out with the following dilemma: The IVF specialists covered by their medical insurance do not allow Mashgichos to supervise their procedures. Moreover, the specialists with the strongest reputations and success rates in their area do not permit Mashgichos in their practice. The question we must determine is whether Halachic supervision of artificial reproductive techniques is an absolute requirement under Jewish Law or just a strong preference when reasonably feasible.
Twentieth Century Poskim
Three central poskim (Halachic decisors) of the second half of the twentieth century require Halachic supervision of artificial reproductive techniques. Rav Shlomo Zalman Auerbach (Noam 1:157) writes in 1958 that Hashgacha is required “to know for certain that the sperm used is that of the husband and not of another man.” Rav Ovadia Yosef (Teshuvot Yabia Omer 2 Even HaEzer 1; printed in 1956) requires “special Hashgacha for IUI (intrauterine insemination) to ensure that the husband’s sperm is being used. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 9:51, Kuntress Refu’ah BaMishpacha chapter 4; printed in 1985) writes, “One must watch ‘with seven eyes’ that another man’s sperm will not be used. Any absence of Halachic supervision is liable to bring disaster and destruction. Such supervision is a prerequisite” for IUI.
Cases of Mixups
These great Poskim have good reason for concern. There have been cases of deception and mixups such as the following reported by the Associated Press published on May 30, 2018 (1).
BOISE, Idaho (AP) - A judge will hear arguments later this month in a lawsuit from a woman who accused a fertility doctor of fraudulently using his own sperm to artificially inseminate her mother.
Dr. Gerald Mortimer and his former medical practice asked for the lawsuit to be dismissed, and U.S. District Judge David Nye is scheduled to hear arguments on Aug. 30 in Pocatello.
Kelli Rowlette and her parents, Sally Ashby and Howard Fowler, sued Mortimer earlier this year, contending the doctor committed medical malpractice, breach of contract and fraud when he carried out the artificial insemination procedures on Ashby over several months in 1980.
Ashby and Fowler say the doctor told them he'd use a mixture of Fowler's sperm and donor sperm from an anonymous college student who looked like Fowler. The doctor contends he doesn't remember which sperm he used but that he was only required to use sperm from a "suitable donor," not a specific person.
Rowlette discovered the issue when she took a DNA test and the company notified her that her mother's former doctor was a likely parental match. Her parents say they wouldn't have agreed to the insemination procedure if they had known Mortimer was going to use his own semen.
The BMJ (once known as the British Medical Journal) in 1999 reported (2):
A white couple from New York has filed a malpractice lawsuit against a doctor they allege was responsible for an embryo mix up during in vitro fertilization that resulted in the woman giving birth to a black baby when she delivered twins.
The couple, who gave birth to their own white baby at the same time, alleges that their doctor, Lillian Nash of New York, was willfully negligent when she mistakenly implanted the embryo of a black couple from Teaneck, New Jersey, into the white mother. In court papers filed in New York, the couple also charged that Dr Nash violated confidentiality rules when she divulged their names to the black couple. New York State Health Department officials have also determined that Dr Nash was not licensed to perform in vitro fertilizations in her office.
The mix up occurred in April last year, when both women were in Dr Nash's New York office for embryo implantation after in vitro fertilization of their eggs. Dr Nash told the black woman that her remaining embryos would be frozen and stored for possible future use, but several were erroneously implanted in the other patient involved in the case. Court papers said that Dr Nash informed both couples of the mistake months before the white couple gave birth. The white couple said that they had not known the identity of the black couple until they filed a lawsuit seeking custody of the black baby boy (3).
Halachic Considerations
Halacha attaches great importance to knowing a child’s parentage. For example, Halacha insists a previously married woman not remarry until three months (sheloshah chodshei havchanah) have passed from her husband’s death or divorce (Yevamos 41a). The Halacha even requires a couple who converted to separate three months to distinguish a child conceived in holiness (Yevamos 42a). Thus, it is unsurprising that Rabbis Auerbach, Waldenburg, and Yosef require Halachic supervision to ascertain that the husband is the father.
There is an additional consideration based on the Gemara’s (Chullin 11b codified in Shulchan Aruch Even Haezer 4:15) presumption that a woman’s husband is her children’s father since “Rov Be’ilos Achar HaBa’al,” most cohabitations of a married woman is with her husband. Rav Yonasan Eybeshutz (Bnei Ahuvah to Hilchos Ishus 15:6), in the eighteenth century, already notes that such a presumption applies only when a woman conceives naturally (Rav Eibeshutz addresses the circumstance of bathhouse inseminations discussed in Chagigah 15a). In the case of a bathhouse insemination, notes Rav Eiybeshutz, there is no more reason than not to trust that the sperm used is that of the husband. Thus, Halachic supervision is necessary to ensure parental identity in cases of artificial reproduction. Finally, many poskim (4) forbid inserting another man’s semen into a married woman’s body. Halachic supervision ensures that women do not run afoul of this view (5).
DNA Testing and Internet Publicity
While mixups occur, they are extremely rare in certified clinics in the United States. The easy detection of a mistake through DNA testing, immediate worldwide publicity through the internet, and the devastating consequences of a lawsuit serve as powerful motivators to deter mishaps.
DNA evidence and widespread internet publicity were not well known when the aforementioned rulings of Rabbanim Auerbach, Waldenburg, and Yosef were written. Perhaps today strict protocols, motivated by fear of easy detection by DNA evidence, provide sufficient Halachic assurance that mixups do not occur.
Rav Asher Weiss
Rav Asher Weiss (Teshuvos Minchat Asher 2:135) strongly supports Hashgacha for IVF. However, he does not believe that baseline Halacha (Ikkar Hadin) requires such supervision. He writes that mistakes are so rare “that one certainly need not be concerned for mishaps, according to baseline Halacha.”
Rav Weiss bases his assertion on the Halacha permitting reliance on a professional’s testimony if he fears losing his credibility and livelihood by lying (“Uman Lo Marei Anafshei”; see, for example, Menachot 43a). This is especially so since a DNA test can easily detect a lie, and the Halacha assumes that “Milta D’avidi Le’igluyei Lo Mishakrei Ba, people do not lie about a matter that can be easily detected” (Bechoros 36a).
Rav Weiss explains that parental identity is “a matter about which people care very much, and if the professional will err or lie, he will lose his entire livelihood, we may rely upon the presumption that a professional will not jeopardize himself.” He notes that the Shulchan Aruch (Y.D. 114:5) permits pomegranate juice produced by non-Jews absent Halachic supervision without concern for wine being added (even where wine is less expensive than pomegranate juice) since people purchased this juice for medicinal purposes.
Rav Zalman Nechemia Goldberg
In 1994, I asked Rav Zalman Nechemia Goldberg in a particular situation if it is permitted to undergo IVF without Halachic supervision. He permitted it if the couple informed the staff that their biological lineage is of utmost priority and concern. By doing so, Rav Goldberg explained, one creates Mirsas (fear) on the clinic’s part to err or lie due to the threat of a heavy lawsuit. Rav Hershel Schachter agrees with Rav Goldberg if the couple informs all involved in their IVF procedure that they plan on DNA testing the child.
It is not necessary for a Kashrut supervisor (Mashgiach) to actively guard food or wine under his watch every second of every day. Rather, sporadic unannounced visits suffice - “Yotzei V’Nichnas” (Avodah Zarah 39b, 61a, and 69a). Sporadic visits create a Mirsas that the person might come unannounced and discover a disturbance to the situation’s Kashrut. Likewise, the potential for easily detecting a lie or mistake creates significant Mirsas for the fertility clinic.
Similarly, even Rav Moshe Shternbuch, a staunch supporter of Halachic supervision of IVF, acknowledges (Teshuvot Vehanhagot 6:242):
“It is certain that even absent Halachic supervision, we may rely and it is nearly completely certain that all was conducted properly. Suppose the staff is caught in an error of not using the husband and/or wife’s genetic material; they will permanently lose their medical license and means of earning a livelihood. In addition, they will have to pay a large fine”.
The Mirsas might be greater in the United States than in Israel since operating a fertility clinic is a lucrative business in the U.S. Thus, there is a great fear that discovering an error and its subsequent worldwide publication on the internet would permanently destroy a very high-income-generating business.
SART Membership
There is an even stronger basis to rely on a clinic without supervision if the fertility clinic is a member of the American organization SART, the Society for Assisted Reproductive Technologies. On its website, SART presents its mission statement:
SART is the primary organization of professionals dedicated to the practice of IVF or assisted reproductive technology (ART). The organization represents the majority of the ART clinics in the country. The mission of SART is to establish and maintain standards for ART so that you receive the highest possible level of care.
Clinics that are part of SART are subject to a bi-yearly rigorous audit of its protocols and procedures. SART affiliation may be compared to the USDA supervision of the dairy industry, whose oversight most Poskim accept, at least as baseline Halacha, as acceptable to assure the Kashrut of milk in the mainstream marketplace. The authorities who accept the validity of government supervision include Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 1:46), the Chazon Ish (Y. D. 41:4), Rav Tzvi Pesach Frank (Teshuvot Har Tzvi Y.D. 103, discussing powdered milk), Rav Yosef Eliyahu Henkin (Teshuvot Ivra 43), and Rav Yaakov Kaminetzsky (Emet L’yaakov Al Shulchan Aruch p. 308).
Just as these many Poskim believe baseline Halacha accepts USDA supervision to ensure milk’s Kashrut, so too, baseline Halacha validates the procedures of IVF clinics with SART membership.
Although USDA inspections are much more frequent than those of SART, SART regularly reviews reports from its member clinics. Moreover, while SART is not a supervisory agency like the USDA, membership indicates a clinic’s serious commitment to best practices in the assisted reproductive field. A clinic’s motivations to achieve the highest standards are driven by the fear of mishaps that would end its operations. SART audits and oversight are a means to ensure that a clinic achieves the highest standards. In the end, USDA and SART oversight, although attained through different means, achieve the same goal – maintaining proper standards that assure consumers they receive the expected product.
In Halachic terms, SART does not create a Mirsas, as Hashgachot for Kashrut seek to achieve. However, SART membership bolsters “Uman Lo Mareh Anafshei” presumption. USDA inspections creating a Mirsas and SART membership strengthening the presumption of upholding a professional reputation yield the same result. Rav Feinstein writes that USDA supervision creates “Yedia” (knowledge), which he views as the equivalent of “Re’eyah,” meaning Hashgacha/Halachic supervision. Similarly, SART affiliation creates the Yedia that the clinic is motivated to adhere to proper IVF standards, the equivalent of Hashgacha.
Moreover, new technology can assure the embryo's parental identity. Preimplantation genetic testing (PGT) is a screening test that can be performed on embryos created via in vitro fertilization (IVF) to genetically analyze the embryos before transfer. Dr. Harry Lieman confirms that PGT can confirm the parentage of the embryos preimplantation, if requested. Significantly, Rav Hershel Schachter agrees that PGT can substitute for Hashgacha.
Nonetheless, organizations such as Machon Puah offer highly respected fertility supervision services. Machon Puah writes on its website, “Due to the complicated and delicate process and the probability of error involved with artificial reproductive techniques require special and exacting Halachic supervision...Machon Puah has performed over 100,000 Hashgachot in which they have prevented many errors”.
However, Rav Professor Avraham Steinberg, in a letter to Rav Zvi Ryzman, expresses skepticism:
“The claim that Mashgichot have prevented errors requires investigation of whether the mishaps were prevented because of the Mashgichah or would have been discovered without her in light of the strict protocols employed at fertility clinics. Moreover, at [Jerusalem’s] Shaarei Zedek Hospital, there were two or three mistakes or near mistakes that were not discovered despite the presence of Mashgichot”.
Bedi’eved
Even among poskim who require Halachic supervision, it is difficult to imagine that they would invalidate a child in the absence of Halachic supervision. I have not heard of parents of prospective marital partners inquiring whether the prospective candidate was artificially conceived and whether Halachic supervision was employed. Most likely, even those who are strict will accept a child’s Kashrut even if he or she was conceived through artificial reproductive technology without Halachic supervision, given the extremely highly unlikely concern of error.
A notable exception is when an older single woman freezes her eggs to preserve her ability to bear children when she eventually marries. In such case, a prospective suitor may insist that the preserved eggs be Halachically supervised. It would be a shame to lose a potential marriage partner even if the woman’s Rav believes Halachic supervision is unnecessary.
Conclusion
Rav Asher Weiss writes:
“It is certain and obvious for in a matter so serious as the purity of the Jewish lineage, it is suitable, proper, and correct to have special Halachic supervision and rely on the trustworthiness of someone for whom Halacha is her guiding light.”
However, the matter is fundamentally a stringency and matter of piety (Middat Chassidut) not required by baseline Halacha.”
As such, in a case when Halachic supervision is not feasible, it seems permissible for a Rav to permit assisted reproductive technology without Halachic supervision if the clinic is a SART member. The couple should also perform due diligence about the staff and clinic they use for competence and ethics. They should also tactfully alert their medical team to their viewing of biological descent as paramount and will, therefore, perform a DNA test to ascertain parental identity. Preimplantation testing for parentage in such cases (or at least a DNA test after birth) confirms the child’s biological lineage.
Footnotes:
1. See https://casetext.com/case/rowlette-v-mortimer
2. https://nationalpost.com/health/ivf-mix-ups-lead-to-babies-born-with-unintended-parentag%20e.
3. For a report on a 2018 IVF mix-up at Israel’s Assuta hospital, see https://www.timesofisrael.com/couple-sues-assuta-hospital-for-9-2-million-over-ivf-paternity-mix-up/.
4. These Poskim include Rav Eliezer Waldenberg (Teshuvos Tzitz Eliezer 9:51:4), Rav Shmuel Wosner (Teshuvos Sheivet Halevi 3:175), Rav Ovadia Yosef (Teshuvos Yabia Omer 2 Even Haezer 9), and the Satmar Rebbe (Teshuvos Divrei Yoel, Even Haezer 2:107:1).
5. For Rav Moshe Feinstein’s view on this topic, see Teshuvot Igrot Moshe, Even HaEzer 1:71 and 4:32.5.
