Artificial Insemination in Israel – A Legal View
The Position of the Israeli Judicial System Regarding
Artificial Insemination of a Married Woman
Joseph Green
Introduction
At present artificial insemination
is regarded as an acceptable means of affording infertile women with certain
biological difficulties the opportunity of conceiving children.[1] Furthermore,
more advanced practices, such as in-vitro fertilization and embryo-transfer,
are becoming perfected to allow women with serious fertility problems to bear
children.[2] The personal
question as to whether one should employ such means of procreation is to be
decided by each individual according to one’s own moral and religious
standards. However, while these individual decisions are being made, the
judicial system of the country, both civil and religious, must deal with the
legal implications of these modern medical techniques.[3]
So far, the Israeli legislative
system has not taken on the challenge of dealing with artificial insemination.[4] It has not
enacted legislation that might possibly change the existing legal definition of
parenthood (which is related to biological origin only),[5] nor has it
questioned the definition of parenthood as it applies to relevant laws.[6]
In contrast, Jewish and Israeli
judicial systems have confronted two of the major problems that are raised by
artificial insemination:
a. Should a husband divorce his
wife on the grounds of her having employed artificial insemination without his
knowledge?
b. Is a husband who consents to his
wife’s conceiving a child by artificial insemination by a foreign donor[7] financially
responsible for the support of the child?
At the time of the drafting of this
paper, five cases of these types have been tried in Israel, four in the
Rabbinic courts, and one in a regional civil court. It is doubtful whether so
few cases can give us a clear and definitive perspective as to the position the
judicial systems are likely to take in the future. Moreover, with regard to
this matter we should be wary about applying such court decisions for
definitivity. Even those who generally prefer that law be established by
judicial precedent rather than by legislative decree would agree that this
matter is exceptional for the following reasons:
a. The development of legal precedent
is a lengthy process, sometimes a matter of years. On the other hand, answers
to the questions raised by artificial insemination are often urgent and require
rapid decision.
b. It is undesirable to use the
approach of legal precedent with regard to issues that are likely to cause
division and fragmentation within the population, or which are essentially
related to moral and ideological principles.[8]
Nevertheless, such decisions may be
useful in providing directives for the judicial system, and for the approaches
to the problems which both halacha and Israeli civil law will have to face, in
view of the changes that science has introduced into contemporary life.
The
Decisions of the Rabbinic Courts
The first decision in a case
related to artificial insemination was rendered by the Rabbinic court of
Jerusalem.[9] The background
of the case was as follows: A wife who did not conceive after many years of
marriage, underwent artificial insemination without her husband’s knowledge,
and successfully conceived from a donor’s semen. When her husband learned of
the matter, he initiated divorce proceedings. In the Rabbinic court, the woman
explained her great desire for children. She stated how medical tests had
proven that her husband was sterile and that his semen was incapable of
fertilizing her ovum. Furthermore, though she desired to adopt children, he
refused to agree.
Two halachic questions were raised
by this case:
a. Though there is no definitive
halachic decision as to whether artificial insemination is considered a form of
adultery, is its use by the woman without her husband’s knowledge in itself
sufficient grounds[10] for divorce?[11]
b. Does the husband’s refusal to
adopt a child have any halachic relevance here?
The court ruled in favor of the
husband and the woman was to accept a divorce. Furthermore, the court freed the
husband from the obligations of the prenuptial contract (ketubbah). To
quote the Rabbinic decision:
By agreeing to artificial
insemination, using the semen from a foreign donor, the woman has transgressed
against God and her husband. Therefore, she is obliged to accept a divorce.
Moreover, she has no right to demand financial consideration in return for
acceptance of the divorce. Nor can she demand that her husband transfer the
ownership of their apartment (presently registered in the name of both husband
and wife) to her single ownership.
The Chief Justice, Rav Eliezer Y.
Waldenberg explained the decision in a lengthy treatise discussing the halachic
ramifications of artificial insemination. He concluded: “There is no greater
abomination that artificial insemination with a foreign donor’s seed!”[12]
However, this conclusion is not
accepted by all authorities. Many maintain that a woman may continue marital
relations with her husband if he had consented to the use of artificial
insemination.[13]
(Nevertheless, even according to these authorities, artificial insemination
without the consent of the husband is grounds for divorce.[14]) Furthermore,
the court totally rejected the argument raised by the woman in defense of her
position: that her husband’s sterility had been proven, and that he refused to
adopt a child. They explained that Jewish law respects a woman’s desire for
children:
There were no obstacles to prevent
her from approaching the Rabbinic Court and expressing this desire,[15] and to ask the
court to obligate her husband to grant her a divorce. Had she done so, she
would have found a responsive ear.
Nevertheless, though her desire for
children has halachic significance, there is a great difference between the
solution proposed by the Sages, to obtain a divorce, and her action which
undermined the very basis of the marital relationship. Hence the court
permitted the husband to divorce his wife, even if it be against her will, and
freed him of the obligation of the prenuptial contract (ketubbah).[16]
In this decision, Rabbi Waldenberg
paid special attention to the fact that the woman employed artificial
insemination without her husband’s consent. The court considered the fact that
she underwent such a procedure without the husband’s approval sufficient
grounds for divorce by itself, regardless of the success or failure of this
procedure:
The physical participation of the
woman in such an abominable act without the husband’s knowledge likens her to a
woman who has violated the law of Moses[17] and the Jewish
people.[18] Hence there
are grounds to judge her accordingly.[19] Furthermore,
there is a possibility that further marital relations with her husband are
forbidden. Thus, the husband may claim “kim li,” and he would therefore
not be obligated to pay her the prenuptial contract, “ketubbah.”[20]
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Another decision on the question of
artificial insemination was rendered by the Rabbinic Court of Haifa.[21] The
circumstances connected with this case make it doubtful whether it should be
used to establish a precedent with regard to the question of artificial
insemination. Nevertheless, the decision is worthy of study, and it may be
useful, as will be explained.
The following describes the situation
of the case: The couple had been married for six years before the woman
conceived. During this period, the husband had undergone treatment because he
suspected that he was sterile. Simultaneous with the treatment the doctor
suggested artificial insemination of the woman. After being injected with
donor’s sperm mixed with her husband’s semen on a number of occasions, the
woman conceived and gave birth to triplets. The husband initiated divorce
proceedings arguing that he was forbidden to continue sexual relations with his
wife, while the woman filed a claim, demanding financial support for herself
and the children. The husband denied that he had fathered the children. He
therefore claimed that he was under no obligation to the children of their mother.
Both claims were held to be joined as one. Thus, the court had to decide two
questions:
a. Should marital relations between
the woman and her husband be prohibited?
b. Can the woman prove her claim
that her husband, in fact, fathered the children.
In its verdict, the court rejected
the husband’s claim and obligated him to support his wife and the children. The
court did not explain its decision. However, a review of the proceeding leads
to the conclusion that it was based on the following factors:
1. The husband did not deny his
wife’s contention that he consented to her being treated by artificial
insemination.
2. The woman was also injected with
her husband’s semen. Since there is no definite proof that he was sterile, it
is possible that the children were, in fact, his.[22]
3. Throughout the time that the
woman was treated by artificial insemination, she and her husband continued to
engage in normal marital relations. Since the husband’s sterility was not
definitely proven, the possibility existed that the children were born from
these unions.
4. The husband also claimed that
his wife engaged in intimate relations with a Druze watchman employed near
their residence. The court ruled that there was insufficient evidence to prove
this claim.
Thus, it appears that the court’s
decision was primarily based on the fact that the husband’s sterility had not
been definitely established. Since the couple continued intimate relations, the
husband was held to be the likely father of the children. This conclusion is
derived from the halachic principle: “The majority [of a woman’s] sexual unions
are with her husband.”[23] Based on this
principle, a husband is considered the father of a child born to his wife, even
though it has been proven that she committed adultery. Similarly, in this case,
though the woman was treated with artificial insemination, since she
simultaneously engaged in sexual relations with her husband, he is held to be
the father of the children. On this basis, the court vindicated the woman’s
claim.
The husband appealed the decision
to the Supreme Rabbinic Court. These are some of the reasons given for the
appeal:[24]
1. The accusation of intimate
relationship between the wife and the Druze watchman mentioned earlier.
2. The woman admitted the
possibility that in the process of artificial insemination she was injected
with semen other than from her husband.
3. The principle “The majority of
[a woman’s] sexual unions are with her husband” does not apply if artificial
insemination has been used. Therefore, rather than ascribe the children to the
husband based on that principle, it should be the woman’s responsibility to
prove that the husband fathered the children. And, until she does do, she is
held responsible for their support.
4. There is no definitive halachic
decision which considers a donor of semen for artificial insemination as the
father of the children conceived.[25] Hence, even if
the husband’s semen might have been successfully used for artificial
insemination, he is not thereby necessarily considered as the legal “father” of
the children according to halacha. Therefore, he should not be obliged for
their financial support.
In their decision, rendered on Tammuz
28, 5732, The Supreme Rabbinic Court[26] rejected the
husband’s appeal and sustained the lower court’s original ruling. They
explained their decision as follows:
There is no doubt that a number of
points raised by the husband have a basis in halacha as prescribed by the Shulchan
Aruch. Nevertheless, such arguments would be applicable if the husband had
clearly proven that he was sterile, and therefore unable to fertilize his wife.
Until this had been proven, there is no reason to consider the husband as
different from normal. Therefore, in accordance with the general rule, the
woman’s children are considered to have been fathered by the husband.
Thus the court sustained the
original decision on the basis of two points:
a. No proof of the husband’s
sterility was produced.
b. The couple continued to engage
in marital relations simul- taneously with the woman’s artificial
inseminations.
Should this decision be used as a
precedent in deciding questions relating to artificial insemination?
Superficially, the answer would appear to be in the negative. Moreover, the
court clearly avoided the issue of artificial insemination and focussed on the
sterility of the husband. By so doing it decided the case according to
established legal precedent.
However, a closer analysis of their
decision leads to the following conclusions:
a. The High Court offered the
husband the opportunity of appealing the decision if he could definitely prove
his sterility. Were he in fact able to do so, it would appear from the wording
of the court’s decision that his claim would be vindicated. Thus, it would seem
that conceiving a child by artificial insemination from a foreign donor is
sufficient grounds for divorce and for releasing the husband from
responsibility for the children’s financial support. Is such a decision
justified if the husband originally consented to his wife’s undergoing such treatments?
b. It appears that the court did
not seriously consider the possibility, albeit of low probability, that the
woman conceived by artificial insemination of her husband’s semen. Though the
decision reached by the court would have remained the same (for it makes no
difference whether the woman was impregnated by artificial insemination by her
husband’s sperm or by normal sexual relations), the very mention of that
possibility seems to imply acceptance of the donor of sperm used for artificial
insemination as the child’s real father.
c. A leading Israeli gynecologist
who desires to remain anonymous, states: “From a strictly medical perspective
it is impossible definitely to prove absolute sterility in a man. On many
occasions, women who conceived by artificial insemination, or who adopted
children, conceived naturally through normal relations with their husband.” If
this statement is correct, the husband would be held to be the father of the
child whenever a couple continue to engage in marital relations while the woman
is treated by artificial insemination. Even if a couple were childless for many
years, the fundamental principle “The majority of [a woman’s] sexual unions are
with her husband” would be used to recognize the child as his. (Furthermore,
the same decision might be made if the husband’s semen was mixed with a foreign
donor’s sperm and this mixture used for artificial insemination.) Thus, it
would appear that regardless of the low probability of conception by the
husband’s sperm, he would be considered the father of the child with all the
resultant legal and halachic ramifications. Is this decision logically
acceptable?
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Another decision, also rendered by
the Rabbinic court in Haifa,[27] provides an
even clearer approach to the question as to whether a husband is held
responsible for the support of a child conceived by artificial insemination
from a foreign donor.
In the case in question, a woman
sued her husband for the support of a child conceived by artificial
insemination from a foreign donor. The husband admitted his inability to
impregnate his wife, and consented to artificial insemination. The woman
conceived and gave birth to a child with Down Syndrome.[28] The husband
argued that artificial insemination (AID) was sufficient grounds for divorce,[29] and that he
was free of any maintenance obligations to his wife and child. The woman
maintained that her husband earned a salary sufficient to provide her with a
high standard of living[30] and to pay for
the care of the child. It is worthy to note that in this case the maintenance
of the child required a considerable sum of money.
The court ruled on favor of the
woman, obligating the husband to pay for the support of the woman and the
child. The court gave the reasoning for their decision as follows:
Artificial insemination is in no
way to be considered as an adulterous act. Therefore, it cannot serve as
grounds for divorce or as a reason for woman to forfeit her right to be
supported by her husband. A similar ruling was reached by the outstanding
halachic authorities of our generation and is dealt with at length by Rabbi
Moshe Feinstein in his Iggrot Moshe, Even ha-Ezer, vol. I, section 10,
and vol. II, Section 10...
In vol. I, section 10, [Rabbi
Feinstein] releases a husband from financial responsibility to his wife if
artificial insemination (AID) is performed without the husband’s knowledge and
consent. From this the inference is clear that should the process be carried
out with the husband’s knowledge and consent, he would then be under obligation
for the child’s maintenance.
The court also added another reason
for obligating the husband to support the wife and child:
Since he agreed to this act, all
the financial obligations resulting therefrom apply to him, on the basis of the
principle governing guarantors (“din arev”). There is no doubt that in
this instance all the factors obligating a guarantor would apply.[31] Though one
might argue that the husband’s unstated intention was to commit himself to
support a normal child, which would imply that his commitment should not be
further extended, he did in fact not restrict or limit that commitment... he
would be under the obligation to pay the substantial expenses involved in the
maintenance of a child with Down Syndrome.[32]
The husband appealed the case
before the Supreme Rabbinic court. The appeal has not yet been tried. However,
from the decision by the Rabbinic court in Haifa, one conclusion is clear.
Artificial insemination (AID) carried out with the husband’s consent is not
considered to be adultery. Marital relations between the woman and her husband
are not forbidden because of artificial insemination, nor is it grounds for
divorce. The court’s position on artificial insemination, (AID) as adultery,
grounds for divorce, etc., when carried out without the husband’s consent, is
not dealt with in this case. However, it would appear that the court’s decision
would not have been different even if the husband’s consent were not given.[33] Furthermore,
the fact that the court did not obligate the husband for maintenance of the
child was based on generally accepted rules for support of children, but was
held responsible only on the basis of his commitment as a “guarantor,” is also
significant.[34]
Consequently, it would appear that a husband’s consent to artificial
insemination does not mean that the child is held to be his son and therefore
should receive support on those grounds. Rather, it establishes a new
commitment unrelated to the marital relationship between the couple. A further
case related to artificial insemination was brought before the Rabbinic court
of Tel Aviv. A woman sued her husband for divorce and maintenance on the
grounds of his sterility. The husband denied her claim and claimed that it was
the woman who was sterile. Physicians consulted on the matter suggested
in-vitro fertilization. However, the woman refused, arguing that she desired to
conceive naturally. The court accepted the woman’s claim and obligated the
husband to grant her a divorce.
This decision was based on three
reasons:
1. The woman desired to conceive
naturally;
2. The probability of successful
in-vitro fertilization was low (approximately 10%), mainly because of the low
potency of the husband’s sperm;
3. Ten years had already passed
since the marriage. According to Jewish law, if a couple is childless after 10
years of marriage, either spouse may demand and be granted a right to divorce.
Therefore, the court ruled that
whenever the evidence indicates that the husband is sterile, the wife is under no
obligation to continue with further marital endeavors to him, if there is
little chance of success. This latter decision raises the question: where the
probability of success by in-vitro fertilization or other means of conception
surpass 50%, may the husband demand that the wife undergo such procedures, or
does the wife have the right to insist on natural conception? However, the
court did not touch on this issue directly, and we must wait until such a case
arises before a definite answer can be given.
Cases
Decided in Israeli Civil Courts
At present, only one decision
concerning artificial insemination has been published by the Israeli Civil
Courts.[35] It concerns a
claim made by a woman to the regional court of Be’er Sheva for alimony and
maintenance of her child, conceived by artificial insemination by a foreign
donor’s sperm. The husband had originally consented to artificial insemination.
About one year after the child’s birth, marital problems arose between the
couple, and the husband then decided to withhold support from both mother and
child. During the course of the case, the couple divorced and reached a
property settlement. The court was then confronted with the question of
maintenance of the child.
The court ruled in favor of the
child and obligated the husband to support it.[36] Justice Y.
Cohen, who wrote the decision, explained:[37]
When the defendant consented to his
wife’s undergoing artificial insemination, he accepted the addition of another
person to his family... Thus, his consent can be seen as an implicit commitment
to sustain the child so conceived... When a person consents that his wife
undergo artificial insemination, he consents and implicitly obligates himself
to his wife and to the child...[38]
Thus, two principles are to be
derived from this decision:
1. The husband’s consent to
artificial insemination implies a commitment to support the child conceived;
2. The husband’s obligation towards
the child is not dependent upon the legal relationship between the husband and
the child’s mother at the time the case is brought to court.
Analysis
of these Decisions
Though the sparsity of relevant
cases requires that an analysis be made with extreme care, certain basic
attitudes can be seen in the decision of the Rabbinic and civil courts in this
matter.
First, if the husband consents[39] to artificial
insemination of his wife by a foreign donor’s sperm, his consent obligates him
to bear responsibility for maintenance of the child conceived. From this one
may conclude that even though the husband did not biologically father the
child, his “conception” of the child in the realm of thought is sufficient to
obligate him to care for it.
Furthermore, this obligation
results from a personal commit- ment by the husband to the child,[40] and continues
even after the marriage between the husband and the wife has been terminated.
It also appears that as a
consequence of the husband’s consent, a woman’s use of artificial insemination
is not to be considered as grounds for divorce. There are opinions which view
artificial insemination as tantamount to adultery, and therefore would prohibit
the woman from engaging in sexual relations with her husband or the donor.[41] Accordingly,
the husband’s consent is irrelevant.[42] However,
according to those who do not regard artificial insemination as adultery,[43] the husband’s
consent would be very important. Undergoing artificial insemination without the
husband’s knowledge is a betrayal of trust that disturbs the marriage
relationship, and may by itself be considered grounds for divorce. Furthermore,
according to the opinion that by such a procedure the woman is held to have
violated the “Dat Yehudi.” This may surely be considered grounds for
divorce.
However, if the husband consents to
artificial insemination, this no longer is considered grounds for divorce, even
if at a later date the husband includes this as one of the reasons for his
request for a divorce. This conclusion is clear from the decision of the Haifa
court.[44] Though there
is an apparent contradiction between this conclusion and the rationale employed
by the Rabbinic court in Jerusalem, it is possible to reconcile the two
decisions. The decision of the Jerusalem court declared: The woman transgressed
against God and her husband, therefore she is obliged to accept a divorce.”
In explaining that decision, the
court declared, “The very physical participation of the woman in such an
abominable act without the husband’s knowledge[45]
likens her to a woman who violates the faith.”[46] Thus, it might
be argued that even according to the strict perspective of the Jerusalem court,
the husband’s consent would alter the legal consequences of artificial
insemination with regard to divorce.
The Israeli secular legal system
has not taken a position on this matter. Nevertheless, it is very unlikely to
presume that it would depart from the approach taken by the legal systems in
other countries[47]
which place no moral objection to the use of a donor’s sperm in artificial
insemination.
Nevertheless, the sensitive moral
and ideological issues asso- ciated with artificial insemination are likely, by
some authorities, totally to forbid insemination by a foreign donor’s sperm.
Further- more, it is possible that they would ask the judiciary to rule as to
whether consent to an amoral act has legal significance. Never- theless, even
if artificial insemination were to be considered adultery despite the husband’s
consent, it is likely that such consent might still create a binding financial
obligation.
Conclusion
It is difficult to establish a
clear perspective of the Rabbinic and civil courts in Israel regarding
artificial insemination because of the sparsity of decisions rendered on the
question and the apparent contradictions between those decisions. Furthermore,
such dec- isions required certain medical testimony regarding, for example,
proof of a husband’s absolute sterility, which is difficult to ascertain.
Nevertheless, a number of conclusions may be reached:
1. If the
husband had consented to the procedure, such consent implies a willingness to
accept responsibility for the maintenance of a child so conceived.
2. Nevertheless,
the husband is not considered the child’s legal father.
3. The husband’s
commitment for the maintenance of the child is not connected with the
relationship between him and his wife. Even if the couple were divorced, the
husband must continue to support the child.
4. There is no
clear decision as to whether artificial insemination is to be considered as
adultery and therefore serve as grounds for divorce.
Source: ASSIA
– Jewish Medical Ethics,
Vol. II, No. 1, January 1991, pp. 21-28
1.
Concerning the medical techniques used in artificial insemination see: A.
Steinberg, “Artificial Insemination According to halacha,” (Hebrew) in Sefer
Assia, ed. A. Steinberg, Jerusalem 1976, p. 128.
2.
Concerning the regulation governing in-vitro fertilization and embryo transfer,
see: J.G. Schenker and D. Norst, “Regulations for practice of Human In-Vitro
Fertilization and Embryo Transfer,” in Harefuah, vol. 108, no. 3,
February 1985, p. 153.
3.This text only deals with the legal and halachic
problems that have been tried in court. In addition, there are many other
halachic questions raised by artificial insemination, among them:
a. Is the child considered the donor’s son? Included in
this question are a number of sub-questions: —
Is the donor considered to have fulfilled the mitzvah of procreation? —
Is the donor responsible for the maintenance of the child? —
Is the child entitled to a share in the donor’s inheritance? —
Does the child free the donor’s wife from the obligation of levirate marriage (Yibbum)?
b. Is the child considered a “mamzer”?
c. Is the act of artificial insemination considered as a
sexual relation? Would the mother be prohibited from further cohabitation with
her husband and the donor?
d. What steps can be taken to ensure that a child
conceived from artificial insemination does not marry paternal incestuous
relations? In-vitro fertilization and embryo transfer, if the ovum were taken
from another woman, raises an additional halachic questions:
—
Is the child considered the woman’s child?
—
Is it the child of the woman who bore it, or is it the child of the woman whose
ovum was used, or what else?
4.
Regulations were drawn up by the General Director of the Ministry of Health and
sent to the directors of all the hospitals in Israel to define “general
principles governing the control of the sperm bank and directions for
performing artificial insemination.” These came as a result of the publication
of “Centralizing Control of the Resources and Services (of the Sperm Bank and
Artificial Insemination), 1979,” and “Regulations governing the Health of the
Nation (regarding the Sperm Bank), 1979.” However, the judicial basis for the
regulations (and its authority over artificial insemination performed outside
hospital premises) raise many doubts. See P. Shipman, “The Determination of the
Parenthood of a Child Born through Artificial Insemination,” Mishpatim
(1980), vol. 10, pp. 63,85. 5.
6.
Among the laws which deal with the relationship between parents and children
and use the terms “parents,” “father” and “mother,” are:
a. Names Law, No.54 of 5716/1956, paragraph 13a,
b. Citizenship Law, 5712/1952, paragraph 4,
c. Capacity & Guardianship Law, 5722/1962, paragraph
13a,
d. Women’s Equal Rights Law, 5711/1951, paragraph 3,
e.
Criminal Law, 5737/1977, sec. 300 al, 362-365.
7.
Unless otherwise specified, in this text the word “donor” refers to a donor of
sperm other than the husband.
9.
The decision was rendered in 1975. It was later publicized by the Chief Justice
of that court, Rabbi E. Waldenberg in his responsa Tzitz Eliezer, Vol.
13, section 97. It is referred to later as the Rabbinic decision. Also serving
on that Rabbinic court were the judges Rabbi Y. Cohen and Rabbi Y. Atia.
10.
Since the decree of Rabbenu Gershom, circa 1000 C.E., a husband is not
permitted to divorce his wife without her consent, unless there are exceptional
circumstances to be decided by Rabbinic authorities.
11. The halachic basis for the decision that artificial
insemination using a foreign donor’s semen is not considered adultery (and
hence the couple may continue marital relations) is discussed by: a. Rabbi B.
M. Uziel, Responsa – Mishpete Uziel, Even ha-Ezer, sect.19;
b. Rabbi M. Feinstein, Reponsa – Iggerot Moshe, Even
ha-Ezer, vol.1, sect. 10; vol. 2, section 11, 71;
c. Rabbi Y. Breisch, Responsa – Chelkat Ya’akov,
vol.1, sect. 24;
d. Rabbi E. Y. Waldenberg, Responsa – Tzitz Eliezer,
vol. 3, sect. 24;
e. Rabbi Y. Weinberg, Responsa – Seride Esh,
section 5; and others.
The
opinion which considers artificial insemination as adultery is based on the
biblical verse in Leviticus 18:20. See Rabbi Yonathan Eibeshutz, Bene
Ahavah, Ishut Section 15; Rabbi Y.L. Zeirelson, Ma’arche Lev,
section 73; Rabbi Y. Teitelbaum, “Responsa Concerning Artificial Insemination
Using a Foreign Donor’s Seed,” in Hamaor, vol. 16, no. 9-10, Ellul 5724.
13.
It is important to note that in the above-mentioned responsum Rabbi Waldenberg
differentiates between artificial insemination as practised today and the two
cases mentioned by the Rabbis and used as a basis for the halachic analysis of
the question. See note 12.
14.
As will be explained, the Rabbinic courts placed much emphasis on the husband’s
consent. However, according to the opinion that artificial insemination is
considered a form of adultery, the husband’s consent is immaterial. Would one
permit adultery even with the husband’s consent? B. Schereschewsky, Family Law
in Israel, 2nd edition, Jerusalem 1974, p.312. In that text (p.288)
Schereschewsky raises a pertinent question to those authorities that permit
artificial insemination. Our Sages hold that a woman may demand a divorce from
her husband on the grounds of his sterility. Can the husband’s consent to
artificial insemination be considered sufficient basis to satisfy his wife’s
desire for children, or may the woman demand that a child be fathered by her
husband?
15.
It is important to note that the husband’s sterility is by itself not
sufficient grounds for divorce. Rather the woman must explain that she desires
children so that she will have “a staff to lean on” in her old age. See
Schereschewsky, ibid., p. 289.
16.
Kim Li – literally: “I am certain.” The principle associated with this
contention is as follows: in all claims it is the plaintiff who must vindicate
his claim against the defendant. Otherwise, the money in question cannot be
expropriated from the latter. Should there be an unresolved question of Jewish
law, where certain authoritative opinions would support the plaintiff, and
others the defendant, the defendant may claim “Kim Li,” namely, “I am of
the opinion that the decision should be rendered according to the halachic
authorities which support my position. The burden of the proof is, therefore,
upon you,” Since the plaintiff cannot counter such an argument, the money in
question remains in the defendant’s possession. Thus, regarding the matter at
hand, though the woman (the plaintiff in the financial aspect of the suit)
demands that her husband pay her according to the prenuptial contract (ketubbah),
the husband may claim that according to the principles of the “violation of the
law of Moses and the Jewish people” (see notes 17 and 18) he is free of
financial obligation to his wife. Though the wife may contend that many
authorities would not place her in such a category, her husband can argue “kim
li,” “I am of the opinion that the decision should be rendered according to
the authorities who support my position.” For a more detailed explanation of
the concept see Schereschewsky, ibid., p.178.
17.
According to Rambam, Ishut 24:11, the term “violates the law of Moses”
refers to a woman who: (a)is extremely immodest in her behavior; (b) willfully
causes her husband to transgress Torah prohibitions by (1) feeding him
non-kosher food under the guise of its being kosher; (2) engaging in sexual relations
while a niddah, without informing her husband of her condition. For a
detailed explanation of this term, note Schereschewsky, ibid., p.305-6,
in particular footnote 28.
18.
The term “violates the law of the Jewish people” refers to a woman who displays
immodest and suggestive behavior despite her husband’s protests. Though there
is no proof or even weighty suspicion of adultery, her immodesty reaches the
point where the husband cannot be required to continue the marriage
relationship. Thus it is the result of her behavior which affects her
relationship with her husband, and not the spiritual seriousness of her actions
itself, that caused her to be placed in that category. Note Schereschewsky, ibid.,
p.307.
19.
Note the responsa Chelkat Ya’akov, vol. 1, section 24; Minchat
Yizchak, vol. 4, section 5; Sheivet Halevi, vol. 3, section 175.
[21]. The decision was rendered in
1972. The Chief Justice was Rabbi N. Rosenthal, and judges Rabbi B. Rakover and
Rabbi E. Hadaya took part in the decision.
[22]. Needless to say, if the husband
could prove his sterility, the fact that his semen was used in artificial
insemination would be of no significance.
23.
The presumption that “the majority of [a woman’s] sexual unions are with her
husband” and, hence, the husband is held to be the father of the children, does
not apply if sufficient evidence is presented to reduce the effect of such
legal presumption, e.g. in the case of a woman known for her wanton behavior. A
detailed discussion of this principle can be found in Schereschewsky, ibid.,
p.352-3. On this basis a question may be asked: if it could be statistically
proven that the probability of the woman’s conceiving through artificial
insemination were greater than that of conceiving through relations with her
husband, would the court have made the same decision?
25. This question was dealt with in depth by the Supreme
Rabbinic Court in their decision. There were three basic halachic opinions on
this matter:
a. The donor of the semen is considered the child’s
father. This opinion is based on the notes to Sefer Mizvot Katan,
mentioned earlier; the commentary of the Chelkat Mechokek and the Beit
Shemuel, on Even ha-Ezer, section 1, & 6; the responsa of the Tashbaz,
vol. 3, section 263; Zekan Aaron, vol. 2, section 93; Tzitz Eliezer,
vol. 9, sect.51.
b. The matter is still one of doubt. Hence, with regards
to questions of marriage, the child is considered the donor’s child and is
prohibited from marrying his “paternal” relations. However, with regard to
other questions, e.g. whether the donor has fulfilled the mizvah of
procreation, the child is not considered the progeny of the donor, and the
latter would be obliged to father other children in order to fulfill the mizvah
of “peru urevu.” This opinion is mentioned by the Turei Zahav in
his commentary on Even ha-Ezer, and in the responsa Mishpete Uziel,
Even ha-Ezer section 19.
c. Unless a child is conceived by natural means, the donor
of the seed is not considered the child’s father. Note the responsa Bar
Livai, vol. 2, section 1; Emek Halacha, section 68; Chelkat
Ya’akov, vol. 1 section 22.
27.
The decision was rendered on Av 6, 5737. The court was made up of Chief
Justice Rabbi A. Shear-Yashuv, Rabbi L. Shinaan and Rabbi A. Uriah.
28.
See Rabbi S. Halberstam, “An Article Presented to Maintain the Sanctity of the
Family of Israel,” in Hamaor, vol. 16, issue 1, Tishrei-Cheshvan 5725.
There the Rabbi strongly opposes artificial insemination. One of his major
arguments is that a child conceived by artificial insemination, born with a
defect such as mongoloidism, tends to disrupt family unity and cause friction
between husband and wife. He held that this factor is as significant as the
other halachic aspects involved. The same argument was offered by a secular
hospital director.
29.
To give a complete picture of the case, it must be added that the husband
claimed that the wife’s promiscuous behavior would serve as grounds for
divorce. The court rejected this claim, but advised the woman to improve her
behavior, noting that her conduct did not contribute to family harmony.
30.
The extent of a husband’s financial obligations to his wife are governed by the
general principle: “Her standing rises with his, but does not decline with
his,” i.e., a husband who is wealthier than his wife is required to maintain
her according to the standards of his income group; but should she come from a
higher socioeconomic group than he, the husband must if possible maintain her
previous standard of living. See: Tractate Ketubbot 48a, 61a; the
commentary of Rosh, section 22; Rambam, Hilchot Ishut, ch. 21,
section 14; Tur and Shulchan Aruch, Even ha-Ezer, section 70;
note also the commentary of Turei Zahav, paragraph 1. This principle
applies only to a husband’s obligations to his wife, but not to his children.
31.
It is possible that the obligation of a “guarantor” referred to by the court is
that mentioned by the Talmud in Kiddushin 7a. In that context, a
guarantor is defined as one who expresses his willingness to accept the
financial responsibility that results from carrying out a particular action.
There is a debate among the Rabbis as to whether a person can or cannot accept
a commitment for an unspecified sum (as in this case, where the exact amount
required for the child’s support cannot be established at the time of
commitment). Note: Choshen Hamishpat, section 40, & 2; and the
commentary of the Siftei Kohen; note also the Rambam, Hilchot Milvah,
ch. 11, sec. 15. From the court’s decision it would appear that they accepted
the validity of an undetermined commitment. Also note: Y. Indig, “The Problem
of Support of a Child Born of Artificial Insemination,” Dine Yisrael,
vol. 2, 1970, p. 83. It must be noted that by investing him with the quality of
a guarantor, the court avoided a legal difficulty. A guarantor’s commitment is
binding even though it was not confirmed by a formal act of contract (Choshen
Mishpat 129:2). However, even within this context, couterarguments may be
raised, because for a guarantor’s commitment to be binding an explicit
statement to that effect must be made.
32.
The court itself took note of the fact that this approach changed the nature of
the claim. Generally, when a mother sues for support of a child, the claim
centers upon the father’s obligation because he fathered the child. In this
case, the father is obliged because of his commitment as a guarantor. There is
a parallel to this concept: the Shulchan Aruch, Even ha-Ezer, section
114, mentions the case of a father who commitment himself to support his wife’s
child from a previous marriage. It is there explained that the obligation for
his wife’s child established by such a commitment is in certain aspects more
binding than the obligation that he has to his own children.
33. This principle is further emphasized by the fact that
the court’s decision relied mainly on the opinion of Rabbi Moshe Feinstein. In
his responsum the latter clearly states that the woman is not to be considered
adulterous. Hence, she may continue to engage in marital relations with her
husband, unless she actually subsequently engaged in sexual relations with
another partner. In that responsum, Rabbi Feinstein explains that,
nevertheless, in artificial insemination without husband’s consent, he is under
no obligation for maintenance of the child. Since the court’s decision was
based on the latter section of Rabbi Feinstein responsum, it follows that it
accepted his opinion with regard to the former question as well.
34.
There is another halachic principle related to this. Halacha rules that
husband’s word be accepted without question if he denies any relation to the
child conceived by his wife (“Yakkir”). However, if he should initially
relate to the child as his son, and later deny parenthood only after being sued
for maintenance of the child, his word is not accepted. In this case, during
the first four years of the child’s life, the husband acknowledged his
obligation to the child and supported him, hence, if he later denied such
consent and claimed that the insemination procedure was undertaken against his
will, the fact that he did support the child for four years would serve as
ample proof of consent to such a procedure.
35.
A further relevant case was tried in the regional court of Tel Aviv in June,
1983. The court’s decision has not yet been published. Nevertheless, the
circumstances involving the case, and its importance in defining possible
criminal aspects associated with artificial insemination, make it worthy of
mention. The case involved a director of the division which dealt with
pregnancy difficulties in one of Israel’s major hospitals. He was responsible
for the artificial insemination of women, using sperm from both their husbands
and from donors. He was accused of using the sperm which men had submitted for
analysis for actual treatments by artificial insemination. Likewise, he was
accused of using a woman’s husband’s sperm (brought to be used for the wife’s
own treatment ) for the artificial insemination of other women. The court
convicted the accused because “by submitting sperm for analysis, the donor
implies that it should not be used to impregnate a foreign woman. The same
applies to sperm submitted for personal use... Thus, using a man’s sperm for
conception without his consent violates medical ethics... When a doctor of the
accused’s standing and position so drastically violates medical ethics, he
betrays the trust, as defines by the Criminal Law, 5731/1973.” The court’s
decision continues, “It is fitting to convict the accused of betrayal of trust,
a violation of section 425 of the Criminal Law for not asking permission from a
donor of sperm given to be used to impregnate his wife to use part of the sperm
for the treatment of other women.”
[38]. Justice Kahan based his ruling on
decisions rendered in the US, People vs. Soremson, Cal RPTS, 68; and Gursky
vs. Gursky, NYS 201, 406. In the latter case, the New York Supreme Court
ruled that a child conceived by artificial insemination is not the legal son of
the husband. Nevertheless, the latter is financially responsible for his
support even after he divorces his wife, if he had agreed originally to the
foreign donor insemination.
39.
Exactly what was meant by the husband’s consent, and how that consent must be
formalized were not mentioned by either the Rabbinic or secular courts. On the
contrary, both systems seemed to imply that the husband’s knowledge and
acceptance of the treatment undergone by his wife are sufficient to be
considered as consent. (In halacha, we find a parallel principle: “silence is
equivalent to acceptance.”) In no case was formal consent required. On this
basis the secular court considered the case to be governed by sections 23 and
25 of the Contracts (General Pacts) Law, 1975. As of now, both the husband and
the wife must sign a formal document of consent to artificial insemination. The
husband must also affirm that he desires the baby to be considered as his
natural child. However, the legal power of these documents has not yet been
tested.
40.
It must be noted that though the Rabbinic court viewed the husband as a
“guarantor,” the secular court maintained the his consent implied a commitment
to accept full responsibility for maintenance of the child.
44.
It must be noted that the court in Haifa relied heavily on the decisions of
Rabbi Moshe Feinstein. Rabbi Feinstein forbids artificial insemination from a
foreign donor without the husband’s consent and would permit it with the
husband’s consent, provided the sperm were taken from a gentile. The use of a
gentile’s sperm minimizes the problems involved in the marriage problems such
as progeny.
[45]. The emphasis was added by the
author.
[46].
It appears that there is an implied contradiction between the decision reached
by the Rabbinic court and their explanation of the decision. The decision
itself declared the act of artificial insemination as a “transgression against
God and the husband,” while the explanation “likened” the woman to one who
violated the faith. There is a basic difference between the two concepts. A
woman who “transgresses against God and her husband” may no longer engage in
marital relations with her husband. In contrast, a husband may, under certain
circumstances, continue marriage relationship with a woman who “violates the
faith.” Furthermore, if the husband is willing to continue these relations, the
woman’s previous behavior is no longer considered grounds for divorce. Perhaps,
for this reason, the decision was worded with the expression “likened the
woman.”
47.
A discussion of these issues in relation to American law can be found in
Shepard’s, Harding: Pregnancy and Birth Cases, Family Law Series (McGraw-Hill,
1982), pp. 216-224; in relation to other legal systems see Shipman, ibid.,
notes 21, 46 and E. Kaplan, “Artificial Insemination,” Tel Aviv University Law
Review, 1972, Vol. 21, p. 110.