5785/2024

The Question

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. 

Footnotes:

1. See https://casetext.com/case/rowlette-v-mortimer-2.

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.