Artificial Insemination in Jewish Law

Most rabbis permit artificial insemination using the husband's semen, but donor insemination raises more complicated questions.

By Elliot N. Dorff

There are a multitude of Jewish legal and moral issues relating to artificial insemination, and Jewish authorities have staked out the entire range of positions on this matter. Rulings often distinguish between artificial insemination that uses the semen of the husband (AIH) and artificial insemination using donor semen (referred to as DI in this article, but also referred to in other literature as AID). In what follows, the author, a Conservative rabbi, surveys some of the issues and rulings pertaining to artificial insemination and provides his own answers to some of the questions he raises. Excerpted and reprinted with permission from Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, published by the Jewish Publication Society.

AIH

Most rabbis who have written about AIH have not objected to it. Because Judaism appreciates medicine as a divinely authorized aid to God, AIH is not prohibited among Jews, as it is among Catholics, merely because it is artificial.

Some rabbis, though, worry about the means by which the husband's sperm is obtained. To ensure that there is no "destruction of the seed in vain," in violation of the rabbinic interpretation of Genesis 38:9‑10, these rabbis advocate collecting it from the vaginal cavity after intercourse. However, an obstetrician I consulted, who has many observant Orthodox and Conservative patients, told me that collecting sperm in that way is simply "unrealistic." Moreover, the vaginal pH kills the sperm, since it is more acidic than cervical mucus.

Other rabbis permit the husband to use a condom (clearly, one without spermicide) for the purpose of collecting his semen for AIH. Some of these rabbis insist that the condom have a small hole in it so that there is still some chance of conception through the couple's intercourse.

While I have no particular objection to couples using such constraints, it does seem to me that they are unnecessary, for producing semen for the specific purpose of procreating cannot plausibly be called wasting it. Even some Orthodox rabbis agree and therefore permit a man to masturbate to produce semen for the artificial insemination of his wife. I endorse this last approach. […]

DI: Adultery and Illegitimacy

Since in DI a married woman is being inseminated with the sperm of a man other than her husband, some rabbis construe DI as adultery. This would make any child born through DI illegitimate (a mamzer); according to the Torah, such a person and his or her descendants may not marry a Jew for ten generations. Rabbi Eliezer Waldenberg, for example, takes strong exception to donor insemination on these grounds:

"The very essence of this matter‑-namely, placing in the womb of a married woman the seed of another man‑-is a great abomination of the tent of Jacob, and there is no greater profanation of the family than this in the dwelling places of Israel. This destroys all the sublime concepts of purity and holiness of Jewish family life, for which our people has been so noted since it became a nation."

This, in my view, misreads the prohibition against adultery. […]

Adultery is repugnant primarily because it violates the trust between husband and wife that must be the foundation of their relationship. The woman has "cheated" on her husband, or vice versa. In standard cases of artificial insemination by a donor, however, the husband not only knows about the insemination but deeply wants it so that he and his wife can have children. Contrary to Rabbi Waldenberg, then, artificial insemination by a donor is not an "abomination" or "profanation" that destroys all Jewish concepts of holiness and purity but rather a desperate attempt to have children‑-an undisputed good in marital relationships for the Jewish tradition‑-in a context of mutual openness and trust. […]

DI: Unintentional Incest

If the identity of the donor is known, the people born through his sperm donation can and should avoid mating with his offspring through marriage so as to avoid incest, for their common father makes them, after all, half-brothers and half-sisters.

Usually, though, the donor is anonymous, and that raises the possibility of unintentional incest in the next generation. That is, the person produced by artificial insemination might happen to marry one of the children of the donor and his wife, and since the children share a father, they would each be marrying their biological half sibling. Both members of the couple and their families would be completely unaware that the relationship was incestuous, for just as recipients do not generally know the identity of the donors whose sperm they use, so, too, donors do not know the identity of the recipients.

If the donor has not been identified but it is known that he is not Jewish, sexual intercourse between the people born through his sperm donation and those born through his marriage would not technically constitute a violation of Judaism's laws prohibiting incest, even if the non‑Jewish donor's wife is Jewish and thus his children are Jewish, for Jewish law does not recognize family lineage among non‑Jews through the father's line.

On that basis, Rabbi Moshe Feinstein permitted DI if the donor was not Jewish, although he was later pressured to withdraw his responsum. […]

DI: The Identity of the Father

The identity of the father is potentially an issue in four matters [in Jewish law]: the child's Jewish identity, priestly status, inheritance rights, and the father's duty to procreate. The first three of those are, in most cases, fairly easily resolved, but the last is more troublesome.

With regard to Jewish identity, it does not matter whether the donor of the semen is a Jew, for [traditional] Jewish law determines a person's Jewish identity according to the bearing mother. Since we are talking about the artificial insemination of a Jewish woman, her offspring are automatically Jewish, no matter how she came to be pregnant. Where a Jewish couple will be raising the child, he or she may be known in Hebrew as the son or daughter of the social parents. The more complicated questions of personal status regarding the possibility of incest in the next generation have been treated above.

Priestly status is determined by the biological father, for it is, according to the Torah, "the seed of Aaron" who are to perform the priestly duties. Therefore, if the donor is known to be, respectively, a kohen, levi, or yisrael, the child has that status as well. If the donor's priestly status is not known, which is usually the case, the child is treated as a yisraelon a default basis. […]

As for inheritance, would the child of DI inherit from the sperm donor, the husband (the social father), neither, or both? While significant claims of justice, deep emotional feelings, and serious sums of money can all be at stake in deciding who is legally the father of a DI child, matters of inheritance are governed in the Americas and in Europe by civil law, not Jewish law. […]

What Jewish law does determine, though, is whether a Jewish man fulfills the commandment to be fruitful and multiply if he consents to have his wife impregnated with another man's semen, if his own semen is artificially implanted in his wife's uterus, or if he himself is a semen donor.

By and large, rabbis who have ruled on these matters thus far have maintained that for the purposes of this commandment, the father is the man who provides the semen. That would make a man who impregnates his wife through artificial insemination (AIH) the father of his child in Jewish law, and it would also make a semen donor the father of any children born through the use of his semen. On the other hand, it would deny the status of fatherhood [with regard to the issues in Jewish law raised above] to men who consent to have their wives impregnated with donor semen.

Rabbi Elliot N. Dorff is Rector and Sol and Anne Dorff Professor of Philosophy at the University of Judaism in California.