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November 15, 2019 Art: Law & Practice

Jewish Law and Assisted Reproductive Technology

Amira Hasenbush

Whether religious or not, most Jews would likely agree that the family is one of the centers of Jewish life. The value of having children is actually rooted in the Jewish Bible (“the Torah”)—the very first commandment (“mitzvah”) in the Torah is to “be fruitful and multiply.” Many Jewish people avail themselves of medical assistance when they face infertility. Assisted reproductive technologies (ART) have changed the face of modern medicine and modern families. But what does Jewish law have to say about ART? Well, in typical lawyerly fashion, it depends.

The three major movements in the American Jewish community are the Reform, Conservative, and Orthodox movements, and they each take a different stance on Jewish law (“halacha”). Halacha is an outgrowth of both the written Torah as well as the oral tradition of rabbinic interpretation throughout the generations. Imagine the written Torah as the Constitution (except it can never be changed) and the oral tradition as case law. Reform Jews follow a principle of “autonomous ethicism” in which halacha should be taken as guidance, but adherents are still encouraged to follow their own free will, guided by Jewish principles of social justice, equality, and morality. Conservative Jews see halacha as binding, but they also expect it to develop over time through rabbinic interpretation, which views the written Torah through a critical historical lens. Orthodox Jews believe that the written Torah is the direct word of God and therefore their rabbinic interpretation and halacha tend to adhere much more literally to the text and are less likely to incorporate modern sensibilities and perspectives. For a constitutional comparison, adherents to Conservative halacha are similar to those who believe in a living, breathing constitution, while Orthodox halachic interpretation is more like Originalism. With that in mind, let’s explore a few different facets of ART and halacha.

Sperm Donation and Artificial Insemination

One of the oldest forms of ART, sperm donation has been discussed in modern Jewish responsa (written rabbinic interpretations) for over fifty years. Reform and Conservative rabbis consistently allow for insemination of a woman by her husband’s sperm, as do the majority of Orthodox rabbis. Additionally, all three movements appear to hold that the halachic father of the child is the sperm donor, though Conservative rabbis go out of their way to declare that the social father still holds a “special status,” and each mitzvah between parent and child (such as honoring one’s parents and providing an education for one’s children) shall apply between a social father and his donor-conceived children. Because of the potential for accidental incest within the Jewish community that arises because of its relatively small population and proscriptions against intermarriage, Orthodox rabbis specifically prohibit sperm donation from Jewish donors. Conservative rabbis, instead, encourage known donors or at least shared medical information to prevent accidental incest. Reform rabbis specifically allow Jewish men to donate sperm but permit them to request that it only be donated to non-Jewish women to prevent accidental incest or gossip within the Jewish community.

Egg Donation

Rabbis from all three Jewish movements distinguish egg donation from sperm donation primarily by the increased health risks to the egg donor, including potential loss of fertility. Because of this, all three are more hesitant to allow egg donation, and they encourage consideration of adoption rather than putting an egg donor at risk. Much focus in the Conservative and Orthodox responsa is placed on who the halachic mother is in egg donation situations, because in those movements, Jewish identity is transmitted through matrilineal descent. The vast majority of rabbis in both movements hold that the woman who gestates the child is the halachic mother of the child, and therefore the egg donor’s religion is irrelevant for purposes of transmission of Jewish heritage. Reform rabbis, on the other hand, recognize both matrilineal and patrilineal descent. They hold that if the intended father uses his sperm and is not Jewish and the egg donor is not Jewish but the intended mother who gestates the child is Jewish, the child will not need a formal conversion but will need to participate in “positive acts of identification,” which is required of any child of a mixed marriage.

In Vitro Fertilization and Embryo Disposition

In vitro fertilization (IVF) is permitted by most mainstream Jewish authorities, with the exception being the minority of Orthodox rabbis who prohibit artificial insemination. All Jewish movements believe that a human embryo of less than forty days gestation has been held to be “mere water.” This interpretation allows the rabbis to justify thawing and disposing of excess embryos from IVF, although they advise that such actions should not be taken lightly. Most rabbis also allow for the donation of excess embryos to science for life-saving research. Orthodox rabbis who do allow for IVF generally require halachic supervision to ensure that the gametes are not accidentally switched.


Surrogacy has roots in biblical times. Abraham and Sarah, Jacob and Leah, and Jacob and Rachel all had children who were carried by their maidservants (Hagar, Zilpah, and Bilhah, respectively). Nevertheless, today’s use of IVF and embryo transfers to gestational carriers who are genetically unrelated to the child requires fresh halachic interpretation. The majority of rabbis across all movements allow for surrogacy. The Conservative movement has a legally split decision (known as a “machloket”) as to whether the surrogate can be compensated, with one side holding that commercial surrogacy is justified to compensate the surrogate for the time, pain, and risk she is taking on, and the other holding that any payment beyond compensation of expenses risks exploitation and commodification of child-rearing. As discussed above, the majority of Conservative and Orthodox rabbis believe that the gestational carrier is the halachic mother of the child, and therefore, within their religious frameworks, a child born to a non-Jewish surrogate would need to undergo a formal conversion to Judaism.

Preimplantation Genetic Diagnosis

Preimplantation genetic diagnosis (PGD) involves microsurgically removing cells from an embryo for genetic testing. PGD allows intended parents to test their embryos and to choose to implant those embryos that do not appear to have the genetic diseases for which they were tested. Reform rabbis have held that PGD is allowable to prevent disease but not for purposes of choosing more desirable traits. However, they recognize that there may be a gray middle area in which is it hard to categorize whether something is disease prevention or just a preference. They leave those open for analysis on a case-by-case basis. Conservative rabbis hold that, while people may choose to seek PGD, they should never feel obligated to do so, and care should be taken not to pressure anyone to use the technology. A majority responsum holds that PGD may be used under very limited circumstances “to select against chromosomal abnormalities and genetic mutations which cause diseases that a) the fetus will very likely manifest should it be carried to term, b) are fatal or associated with a severely debilitating condition, and c) have no effective therapies at present.” The majority opinion does not allow for PGD to reduce increased risk of complex major diseases, such as cancer or diabetes, but does allow for consultation on individual cases. It also does not allow for selection for gender or other preferred traits. A minority dissenting Conservative responsum allows for PGD to avoid disease or select traits. Orthodox rabbis allow for PGD to prevent life threatening genetic disorders, and in fact, some even require PGD for couples who are likely to have children naturally who would have a life-threatening genetic condition. However, most Orthodox rabbis encourage, but would not require, PGD in such circumstances. Some very limited rulings have allowed for PGD for gender-based selection based on individual cases and circumstances.

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Amira Hasenbush, JD, MPH, of the Los Angeles-based Law Office of Amira Hasenbush, provides legal assistance for clients in matters of assisted reproduction, adoption, co-parenting agreements, parentage orders, guardianships, and name and gender changes. Prior to taking her law practice full time, she served for more than five years as the Jim Kepner Law and Policy Fellow for the Williams Institute, a UCLA Law think tank dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy.