In Vitro Fertilization: Legal and Ethical Considerations

Most authorities permit test-tube conception, but worry about what to do with the unneeded genetic material.

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Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

In a situation in which the husband produces far too few sperm with each ejaculate to impregnate his wife or where a woman is unable to move the egg from the ovary into the uterus because of blocked Fallopian tubes, the former Israeli Chief Rabbi Ovadiah Yosef gave his qualified approval to the in vitro [i.e. test tube] fertilization of the woman's egg with the husband's sperm and the reimplantation of the fertilized zygote or tiny embryo into the same woman's womb. 

Another former Chief Rabbi, Shlomo Goren, asserted that conception in this manner is morally repugnant but legally unobjectionable.

This situation represents a type of barrenness akin to physical illness and, therefore, justifies acts which entail a small amount of risk, such as the procurement of eggs from the mother's ovary by laparoscopy, a minor surgical procedure.

There is certainly no question of adultery involved, since the sperm used is that of the husband. Sperm and egg procurement for this procedure are permissible because the aim is to fulfill the biblical commandment of procreation. The offspring is legitimate and the parents thereby fulfill their obligation of having children.

Moral Considerations

However, certain serious moral and Jewish legal problems relate to this type of test‑tube baby. If one uses sperm other than that of the husband, objections exist. Furthermore, if one obtains several eggs from the mother's ovary at one time and fertilizes all of them so as to select the best embryo for reimplantation, is one permitted to destroy the other fertilized eggs? Do they not constitute human seed and, therefore, should not be "cast away for naught"? Is one permitted to perform medical research on the unused fertilized eggs? What is the status of other fertilized ova in the test tube? Is the destruction of such fertilized ova tantamount to abortion? Is such a fertilized ovum regarded as "mere water" during the first forty days of its development?

bioethicsIn Judaism there is no concept of waste applied to the tens of millions of superfluous sperm which are lost following normal coitus. Perhaps excess fertilized eggs might be implanted into nonovulating women. What, then, should be the approach if no woman is available for an additional implant and there has been more than one successful fertilization? If a fertilized ovum is "more than nothing," would Jewish law mandate in vitro procedures with only one ovum at a time?

Are All Fertilized Eggs Equal?

There may well be a Jewish legal and ethical distinction between a fertilized egg in a test tube and a fertilized egg in a uterus. The question of the possible independent existence of a zygote has legal import. Jewish law requires the desecration of the Sabbath to preserve the existence of an embryo in the mother's womb even less than forty days old. If there is no human fetal life outside the uterus, a superfluous fertilized ovum could be disposed of by any means, such as flushing down the drain.

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Dr. Fred Rosner

Dr. Fred Rosner is Director of the Department of Medicine of the Mount Sinai Services at the Queens Hospital Center and Professor of Medicine at New York's Mount Sinai School of Medicine. He is a diplomat of the American Board of Internal Medicine and a Fellow of the American College of Physicians.