Unpacking the Iggerot: Artificial Insemination
Read more about “Unpacking the Iggerot” and see the archive of all past columns.
Artificial Insemination / Iggerot Moshe, E.H., vol. 1, #71
Summarizing the Iggerot
In 1959, R. Moshe Feinstein issued what was among his most significant controversial rulings: Permitting a woman to undergo artificial insemination.
As with many of his high-profile medical rulings, he consulted his son-in-law, R. Dr. Moshe Dovid Tendler, about the nature of this scientific breakthrough. The reason a couple would opt for artificial insemination is that they are finding that they are unable to produce a child through regular sexual means. In the case of likely impotency on the husband’s side, they would opt to use a sperm donor. However, R. Tendler informed his father-in-law that there were medical practices that offered a “booster” option, which would mix the semen of the husband with that provided by the donor. While there were medieval commentators who believed it was possible for a single egg to be inseminated from two different men (see Sota 42b, Tosafot s.v. Me’ah, based on Jerusalem Talmud 4:2), that is no longer supported by our modern understanding of science. R. Feinstein therefore dismisses this practice as deceitfulness in which the medical professionals delude the husband into a false sense of biological involvement in the process. Moreover, since the husband’s sperm does not in fact contribute to the fertilization of the egg, it would be considered hotza’at shikhvat zera le-vatala, the prohibition of wasting semen.
The major question of the responsum, even absent the booster factor, is how it would be permissible for a married woman to allow herself to be impregnated by the sperm of a man other than her husband—would it not constitute an adulterous union, thereby rendering the offspring a mamzer (and forbidding the child from marrying into the Jewish people)? To this, R. Feinstein cites the Taz (Y.D. 195:7), who in turn cites the commentary of Rabbeinu Peretz on the Sefer Mitzvot Katan, which permits a menstruating woman to sleep on the same sheets that her husband had used:
But why is she not concerned that when she is a nidda she might become impregnated from her husband’s seed and the child will be classified as a ben nidda? He answers: Since there is no prohibited intercourse the child’s status is unaffected [i.e., no fear of mamzerut]—even if she is [non-sexually] impregnated from another man’s seed. For Ben Sira was considered legitimate [and he was reportedly conceived in this manner]. Rather, regarding the seed of another man we are only concerned lest the child [accidentally] marry his biological sister shared by the same father.
This is the prooftext at the heart of R. Feinstein’s thesis. The answer to the question of artificial insemination constituting an adulterous union is that adultery is only transgressed through an act of sexual intercourse, not the result of a married woman’s genetics mixing with that of a man currently forbidden to her (as in the case of a sperm donor who is not her husband). Therefore, the only ancillary issue remaining to be reckoned with is that of the Rabbinic precaution of waiting three months between male reproductive partners (the husband and the donor), to obviate any ambiguity as to the identity of the child’s father. And even regarding that, he asserts that if the doctors are certain the husband is incapable of producing viable sperm, then there would be no need for him to refrain from sexual intimacy with his wife while she undergoes artificial insemination.
Though, R. Feinstein qualifies: “And therefore there is a basis to permit this in an exceedingly extenuating circumstance in which they are in deep anguish due to their desire to have a child, to inseminate her specifically with the seed of a non-Jew.” He specifically instructs them to use a non-Jewish sperm donor, as it would remove the concern for inadvertent incest with a future spouse, lest they share the same biological Jewish father.
A further qualification is that the wife may only undergo artificial insemination with the consent of her husband. Firstly, her pregnancy will reduce her sexual availability to her husband and secondly the husband should not be made to financially support a child who is not his own, either biologically or by choice.
The final part of the responsum addresses a case in which the husband is capable of producing viable sperm, albeit in insufficient volume. Here, the question is simply how he should go about procuring the semen for the doctor to inseminate his wife. Even though this would not be considered “spilling seed in vain,” since it will serve reproductive purposes, it remains prohibited by the logic of lo tinaf (see Nidda 13a re forbidden masterbation). Therefore, R. Feinstein suggests either conducting regular intercourse and concluding by directing the semen into a receptacle, or, if needed, to use a type of condom to collect the semen, with which the doctor can use to inseminate the wife. This scenario avoids both the issue of adultery and introducing non-Jewish genetics, while the earlier scenario of a couple needing to rely on a donor was subject to far more scrutiny, as we shall see soon.
Connecting the Iggerot
In 1955, prior to this landmark responsum, R. Feinstein issued a far less radical ruling permitting a man to extract his semen to have it lab tested for viability and potential medical intervention (Iggerot Moshe, E.H., vol. 1, #70). This serves as an important precursor to the latter section of the artificial insemination responsum a few years later as this is where R. Feinstein articulates the acceptable way to procure the semen. Notably, he attributes the condom solution to R. Chaim Ozer Grodzinski, author of the Responsa Ahiezer and then adds “even though, from my perspective, this does not seem reasonable, but in any event R. Chaim Ozer holds as such.”
Parenthetically, this speaks to the preeminence of R. Grodzinski, both from his immediate community of Vilna, and more broadly throughout the Lithuanian Torah world. Even as R. Feinstein and his family were fleeing Russia, they stopped in Vilna to receive his blessing (Man Malki Rabbanan, p. 21).
The central thesis of the artificial insemination ruling was an extrapolation from the Taz that forbidden sexual unions are only transgressed when there is a physical act between the two parties. This also served as the basis for R. Feinstein’s responsum to R. Yaakov Seltzer of Johannesburg that a couple need not worry about the wife being impregnated from her husband’s semen while she is a nidda (E.H., vol. 2, #18).
The most pertinent responsum that connects to our topic is found earlier in the same volume of Iggerot Moshe (E.H., vol. 1, #10), albeit it is dated two years later to 1961. It is a similar scenario with a significant variation: Instead of the husband and wife mutually deciding to undergo artificial insemination, the wife appears to have taken the initiative and only post facto inquiries about the status of her child and whether she may remain with her spouse. R. Feinstein proceeds to rehash much of the same analysis, arguing that only a forbidden act of intercourse can constitute adultery which renders the offspring a mamzer.
He does, however, provide some nuances that shed further light on his earlier ruling. First, we need not be concerned that the donor is Jewish, much less that he will father another child who will inadvertently marry the one conceived through artificial insemination. The statistical chances of this occurring, especially when the majority of donors in America are not Jewish, is insignificant. And even if the doctor claims that the donor is Jewish we may disregard it, as he has no halakhic credibility and is likely saying that erroneously thinking it will make the family more comfortable with the procedure.
R. Feinstein further allays any concerns that a girl born through artificial insemination by a non-Jewish donor would not be disqualified from marrying a kohen. The Rif considers a child born from a gentile who came upon a Jewish woman to be permitted to kohanim. Secondly, based on Helkat Mehokek (#20, commenting on Shulhan Arukh, E.H. 4:19), perhaps the child born in this manner is not attributable to the donor. Thirdly, perhaps the donor is indeed a Jew. (This consideration is interesting, as earlier R. Feinstein was asserting that the chances of having a Jewish donor were statistically insignificant, voiding concerns for potential incest. Now, he is granting a degree of plausibility that there was a Jewish donor to help mitigate the issue of a female offspring marrying a kohen.) Finally, Beit Shmuel (ad loc., #2) writes that post facto we would not compel such a couple to get divorced. With all of these factors, R. Feinstein rules that the child may marry a fellow Jew, even a kohen, unencumbered by their means of conception.
However, considering this woman went ahead without her husband’s consent, he would not be obligated to support the child produced from the donor nor any associated medical costs that his wife incurred from the procedure.
One final point, the Talmud Yevamot (65b) teaches that if a couple is unable to have children together, and that the deficiency is determined to be that of the man, he can be compelled to issue her a divorce. While some have interpreted this Gemara as prescriptive, R. Feinstein clarifies that he is only mandated to divorce in the event that his wife solicits it. They may decide that they love each other and will remain together whether they are able to have children or not (see Mesoret Moshe, vol. 1, pp. 425-426).
Reception of the Iggerot
As mentioned, this was, perhaps, R. Feinstein’s most controversial ruling. The editor of the journal, HaMaor 14:9 (1964) prefaced with a backhanded compliment: “Regarding his stringent rulings, one can certainly rely on them—for if he prohibited it, it is certain that there was no room left to be lenient.” In other words, R. Feinstein’s lenient rulings, however, should be treated with significant caution, he warns.
Many rabbis were far less subtle about their disagreement, principally the Satmar Rav, R. Yoel Teitelbaum. In his Responsa Divrei Yoel (E.H., #107; originally published in that issue of HaMaor), he prefaces that despite his limited bandwidth, he felt compelled to issue a “brief” dissent. (Spoiler alert: It was not brief. We will, however, outline his most salient point.) If we recall, R. Feinstein’s lenient ruling hinged upon his assertion that adultery is solely assessed upon the act, not the result. It is no surprise that at the heart of the Satmar Rav’s thesis is that adultery can be violated even on the basis of the result of the offspring, absent sexual intercourse. Remarkably, his main proof is Ramban’s comments on the verse “Do not have carnal relations [give your emission of seed, l’zara] with your neighbor’s wife and defile yourself with her” (Leviticus 18:20):
Rabbi Abraham ibn Ezra commented: “For there is a threefold purpose to sexual intercourse: one is to beget children, a second is to relieve the body of its fluids, and the third is for passion, which is likened to that of the animals. Now when Scripture said l’zara, it means “even l’zara” [i.e., even for the purpose of begetting children], and thus it prohibited [intercourse with another man’s wife] altogether.” It is possible that He said l’zara in order to mention the reason for the prohibition, since it will not be known to whom “the child” belongs, and as a result, great and wicked abominations might be done by both. Now Scripture did not mention [this expression l’zara further on when it speaks] of the punishment [for this sin], because even for intimacy of the first stage without emitting seed, he is already liable to punishment. It is for this reason that [in the case of a suspected adulteress] Scripture states, and a man lie with her carnally, for it is on account of the zera that he suspects her. Similarly in the case of a betrothed bondswoman it also says, lieth carnally with her, because the prohibition is on account of the child that he will beget from a bondwoman [who is betrothed to a Hebrew servant].
He notes that the main concern of an adulterous union is the resultant illegitimate child, which will consequently garner jealousy from the husband. And while normative halakha does not accept the principle of darshinan ta’am de-kra, allowing the halakhic parameters to be adapted based on the rationale, in this case the actual reasoning is arguably explicit in the verse “l’zara,” which indicates that the primary concern is about the child from this union. Based on this reasoning, R. Teitelbaum concludes that artificial insemination from a third party will render the woman forbidden to her husband and the child a mamzer, no different than had she engaged in actual forbidden intercourse with the sperm donor.
R. Teitelbaum was not the only one to champion this cause. In a reply to R. Moshe Chaim Ephraim Bloch, R. Feinstein refutes his detractors for relying on Ramban and other commentaries as their proof (Iggerot Moshe, E.H., vol. 2, #11). There is always a methodological challenge of using a Biblical commentary as a halakhic source, and R. Feinstein argues that Ramban’s rationale of the husband’s subsequent jealousy was meant as a general explanation, not as a means of shifting the halakhic framework from the act to the result. While some may have read the attacks on his responsum to be directed against R. Feinstein personally, he nonetheless concluded his letter: “With all this, I say kudos on his letter, for his intent was for the sake of Heaven.”
R. Yaakov Breich, in Helkat Yaakov (E.H., #14), also adopted a somewhat peculiar line of reasoning to repudiate R. Feinstein’s position. After expressing his utter shock, he exclaims that if even the Catholics view artificial insemination as unconscionable, all the more so should the Jews. He invokes Sefer Hasidim (#829) that if there is something kosher, but non-Jews do not consume it, then Jews should refrain from doing so as well. He further marshals Magen Avraham (242:8) that in instances where it would be permissible to have non-Jews construct a synagogue on Shabbat, it should be forbidden as we should not be perceived as treating our day of rest as less sacred than our gentile neighbors do theirs. Later, he cites Rambam (Issurei Biah 21:8) who states that “lesbian relations are forbidden. This is ‘the conduct of Egypt’ which we were warned against, as Leviticus (18:3) states: ‘Do not follow the conduct of Egypt’.” This is pointed to as a further proof that there are matters that are not explicitly forbidden by the Torah, but can still be prohibited under the general category of “the conduct of Egypt.” (There are nine distinct challenges raised by the Helkat Yaakov against the Iggerot Moshe, we will leave it for the adventurous reader to wade through the extensive argumentation.)
R. Feinstein (printed in Helkat Yaakov #17, 1964; also printed at the end of Dibberot Moshe on Ketubot) dismisses R. Breich’s argument, essentially classifying it as a reductio ad absurdum to base Jewish practice on gentile norms. Do you think because the Egyptians refrained from eating sheep it should be forbidden for us as well? Not only is that unreasonable, but it would actually be in violation of emulating an idolatrous practice! Rather, when Sefer Hasidim forbade foods that the gentiles would not touch, it was because these foods were so repugnant that it was unbecoming of a dignified person to consume it. Interestingly, while R. Feinstein espouses a relatively liberal position on artificial insemination, he rebuffs R. Breich’s position by adopting a more religiously conservative orientation, rejecting non-Jewish norms as a factor in the halakhic process.
Finally, R. Feinstein contends that the comparison between lesbianism and artificial insemination is a false dichotomy. Something only qualifies as “the conduct of Egypt” if done for promiscuous purposes, while artificial insemination contains nothing licentious as it is being done solely for the purpose of producing a child (ibid, #21). (R. Breich, fn. 3, however, remains unconvinced. He retorts that if a scientist hired two women to engage in sexual relations and they did so strictly for the payment it would not make it any less “the conduct of Egypt.”)
On this issue, it may seem like it was R. Feinstein against the world. Yet, there were actually some other major poskim who concurred, such as R. Joseph B. Soloveitchik (Nefesh HaRav, p. 255), and more surprisingly, R. Shlomo Zalman Auerbach in the (Noam 5719, p. 164; cf. Minhat Shlomo, vol. 2, #124). The kicker is that R. Aurbach’s article is dated to 5718 (1958), just a year before R. Feinstein’s original responsum on the topic, yet it was R. Feinstein who took all the heat, while R. Auerbach came out relatively unscathed. This distinction in reception may be partially owed to how R. Auerbach couched his argument in theoretical terms. Though, a third theory, and more likely theory, has to do with the personal dynamics of American gedolim, which we will explore in our next column.
Reflecting on the Iggerot
While R. Feinstein fought valiantly against the many waves of counter-responsa, there is a looming question about whether he personally maintained the same position throughout the course of his lifetime. R. Eliezer Waldenberg (Tzitz Eliezer, vol. 9, #51, Kuntres Refua be-Mishpaha, gate 4, ch. 5) quotes a 1964 responsum from R. Feinstein, not published in Iggerot Moshe, but rather in a volume called Tzvi Hemed: Magen Gibborei Koah (p. 34) by R. Tzvi Hirsch Friedman. It reads as follows:
Regarding the matter of artificial insemination that was written in my name that I permitted, I found it appropriate to announce that I did not permit it except in a time of great distress, when the [childless] woman was suffering greatly, as explained in my Iggerot Moshe (E.H., vol. 1, #71). Therefore, it is clear to everyone that this matter should not be determined except by a great rabbi who is well-known for his Torah knowledge and who is renowned in issuing halakhic rulings, who will assess it from all sides. Because of this, in the one-off question that came to me, I forbade it, and God forbid, for any rabbi to issue a permit on this matter based on what I wrote in my book—and he should read what I wrote in my introduction to Iggerot Moshe (O.H., vol. 1) [i.e., that his responsa were addressed to specific circumstances and cannot be flippantly extrapolated without examination by a Torah scholar]. Indeed, since it is still possible that those who are not qualified to discuss a serious matter will be tempted to issue a permit, and lest a stumbling block arise to permit even in a forbidden instance, a fence should be erected so that even the most eminent rabbi will not permit this in any [inappropriate] way.
In the eyes of R. Waldenberg this was nothing short of a retraction. Similarly, R. Aharon Felder asserts that R. Feinstein was aiming less to authorize artificial insemination than to post facto prevent rendering the offspring a mamzer (Reshumei Aharon, vol. 1, p. 124).
Yet, perhaps that is not the most accurate characterization. True, in Iggerot Moshe (E.H., vol. 2, #16), he advised a couple not to rush into artificial insemination, but rather to wait a little longer to see whether God would grant them a child through natural means. And it is also true that in late 1980 (E.H., vol. 4, #32) he wrote that he generally refrained from advising couples to undertake artificial insemination, as it would not fulfill the husband’s mitzva of “be fruitful and multiply.” Yet, if we look back at his initial ruling (E.H., vol. 1, #71), he already expressed that this was reserved exclusively for an exceedingly extenuating circumstance. It would seem that while R. Feinstein may have become more cautious in his formulation, he still maintained his initial position in principle.
“Moshe is true and his Torah is true” has been applied to R. Moshe Feinstein by many. His willingness to bear the brunt for what he believed was an authentic halakhic position that could aid countless desperate Jews is perhaps what helped earn him such a moniker. In his more extensive reply to R. Breich et al. printed in the back of Dibberot Moshe (Ketubot, pp. 244-247) he forcefully dismisses those who would reject his ruling on the basis that it was a davar tamua le-rabim, something that would appear inexplicable to the masses. He contends that a posek has the responsibility of rendering truth and that “those who cannot comprehend the basis to be lenient here are not considered halakhic decisors in this matter.” In Iggerot Moshe (E.H., vol. 2, #11), he declares that “my perspective is exclusively informed by the Torah without external considerations—for [the Torah’s] laws are that of truth, whether it be [at times] stringent or lenient.”
The challenges of infertility are very much real and painful for those who have experienced it. In a certain respect, the most significant responsum from R. Feinstein on this matter may actually be one that has less to do with artificial insemination than about the general obligation of “be fruitful and multiply.” In Iggerot Moshe (E.H., vol. 2, #18), he asserts that the mitzva is the attempt to have children, because the result is aino be-yado, not in the parents’ control. We do not know why some are blessed to bear offspring with ease while others seem to be unfairly condemned to the excruciating challenges of infertility. And it was precisely both the halakhic and human awareness of the mitzva being aino be-yado, out of our hands, that factored into his landmark ruling. As R. Aron Boruch Tendler (Defining Reality) put it: “can you begin to imagine how many families with infertility issues have been helped, are being helped, and will be helped because Rav Moshe shouldered the responsibility of permitting artificial insemination?”
This was not because R. Feinstein had minimal regard for the sanctity of Jewish lineage, as some of his detractors alleged. After all, this is the same rabbi who was harassed and cursed by someone who refused to receive a get, yet persevered until it was achieved because, as he matter-of-factly put it “What’s the question? These are matters of kedushat Yisrael” (Darkei Moshe, vol. 1, p. 367). And this was also the same rabbi when asked which Talmudic topic he was studying at 6:30am, replied that he was simply reciting Psalms on behalf of all those who were ill (ibid., p. 367). As R. Aharon Lichtenstein put it in his eulogy for R. Feinstein:
Someone once commented wisely, “There are poskim who are willing to slay every Jew for the sake of the law, while others are willing to slay every law for the sake of a Jew.” A great posek has to know the proper balance between concern for the truth of Torah and concern for the human dimension of the ruling. This balance was the secret of R. Moshe’s greatness.
Endnote: R. Feinstein’s responsa on artificial insemination reckoned with the issue of how to procure the semen for impregnation. While we did not focus on this issue, we should note that he provides a more thorough analysis in Iggerot Moshe (E.H., vol. 1, #69) of the Talmudic interpretations of “and you shall guard yourself from all matters of evil” (Ketubot 46a) and “do not stray after your eyes” (Berakhot 12b) which serve as the building blocks for his analysis of when and in what manner ejaculation is permissible. See also Iggerot Moshe (E.H., vol. 1, #56), in which he provides an extensive analysis of this topic. Also ancillary to this general discussion are his responsa on the use of different forms of birth control. See Iggerot Moshe (E.H., vol. 4, #67-74) and Mesoret Moshe (vol. 4, starting on p. 307).
For more on artificial insemination, see Mesoret Moshe (vol. 4, p. 241 and 372). There is an extensive list of scholars who reckoned with R. Feinstein which we did not incorporate into our summary, yet the interested reader may wish to see. For some noteworthy citations, see: Minhat Yitzhak (vol. 4, #45), Seridei Eish (vol. 3, #5), Mishneh Halakhot (vol. 4, #160), Shevet ha-Levi (vol. 3, #175), Teshuvot ve-Hanhagot (vol. 2, #690). For a more comprehensive list, see Petihat ha-Iggerot (pp. 558-566).
Prepare ahead: Our next column (September 18) will look at the mehitza controversies and Iggerot Moshe, O.H., vol. 1, #39.
Moshe Kurtz is the rabbi of Cong. Sons of Israel in Allentown, PA, the author of Challenging Assumptions, and hosts the Shu”T First, Ask Questions Later