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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An alternative course of action would be to refrain from supplying nutrients to the ovum, thereby allowing it to perish. One can redefine the question in terms of whether or not an unfertilized egg may be deemed to be of ethical import as potential life. Since the vast majority of unfertilized sperm and eggs are never fertilized and do not constitute new life, only a fertilized ovum might be considered as potential life. If a fertilized ovum were equated with human life, Jewish law would even require the expenditure of substantial sums of money to transport a superfluous fertilized ovum great distances, if necessary, for implantation into a nonovulating woman.

The Committee on Medical Ethics of the Federation of Jewish Philanthropies of New York concluded that a fertilized egg not in the womb, but in an environment--the test tube--in which it can never attain viability, does not have humanhood and may be discarded or used for the advancement of scientific knowledge.

It should also be stressed that even in the absence of Jewish legal or moral objections to in vitro fertilization using the husband's sperm, no woman is required to submit to this procedure. The obligations of women, whether by reason of the scriptural exhortation to populate the universe or by virtue of the marital contract, are limited to bearing children by means of natural intercourse.

Looking to Future Technology

If and when medical science develops more advanced techniques of test‑tube gestation, it may be necessary to reexamine these moral and legal questions. [Rabbi Moshe] Hershler addresses the issue of a fetus incubated for its full gestation in a totally artificial womb or incubator without using either the natural mother or a surrogate mother's uterus. Is such a child human when it is "born"?

Although this creature may have the hereditary characteristics of its biological parents, humanhood is usually assumed to occur following natural conception, pregnancy, and birth through a woman's womb. Does the interruption of this natural process even for a short period, such as for in vitro fertilization, negate the humanhood of such an infant? Is such an infant to be considered as a golem (artificially created "human" being) or as an angel, neither of whom are conceived and born from a woman's womb, and neither of whom are included in the human race? If so, destroying them might not be considered an act of murder. Would the destruction of a baby "born" in an artificial womb or incubator without ever having been in a human uterus be an act of murder?

Hershler cites numerous sources, including the famous talmudic passage which describes a golem and concludes that the latter is not human but akin to a robot. On the other hand, a baby born after in vitro fertilization is derived from human seed, both egg and sperm, and matures and grows according to the laws of nature. Therefore, such a baby‑‑even if totally gestated in an artificial womb‑‑should be considered human with all the legal and moral responsibilities of a similar child born in the usual manner.

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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.