Halakhah su Isaia 45:18

Indeed, the world was created only for procreation as it is said, "He created it not a waste, He formed it to be inhabited" (Isaiah 45:18).

In the early days of in vitro fertilization a position similar to that advanced by Rabbi Waldenberg was presented by R. Judah Gershuni in the Tishri 5739 issue of Or ha-Mizraḥ.⁸This article is reprinted in Rabbi Gershuni’s Kol Ẓofayikh (Jerusalem, 5740), pp. 361–367. Rabbi Gershuni's argument is based upon a statement of Divrei Malki'el, IV, no. 107. There is a significant disagreement among rabbinic authorities with regard to whether a paternal relationship may occur as a result of artificial insemination or whether such a relationship can arise only as the result of a sexual act.⁹The primary source affirming a paternal relationship is Hagahot Semak, cited by Mishneh le-Melekh, Hilkhot Ishut 15:4; Baḥ, Yoreh De‘ah 195; and Bet Shmu’el, Even ha-Ezer 1:10. A similar view is expressed by Ḥelkat Meḥokek, Even ha-Ezer 1:8; Teshuvot Tashbaẓ, III, no. 263; Turei Even, Ḥaggigah 15a; Bnei Ahuvah, Hilkhot Ishut 15; Arukh la-Ner, Yevamot 10a; Mishneh le-Melekh, Hilkhot Issurei Bi’ah 17:13; She’ilat Ya‘aveẓ, II, no. 97; Maharam Shik al Taryag Miẓvot, no. 1; Teshuvot Divrei Malkiel, II, no.107; R. Shlomoh Zalman Auerbach, No‘am, I (5717), 155; R. Israel Ze’ev Mintzberg , No‘am, I, 129; R. Joshua Baumol, Teshuvot Emek Halakhah, I, no. 68; R. Avigdor Nebenzahl, Sefer Assia, V, 92–93; and R. Ovadiah Yosef, quoted by Moshe Drori, Teḥumin, I (5740), 287, and Abraham S. Abraham, Nishmat Avraham, Even ha-Ezer 1:5, sec. 3. An opposing view is expressed by Taz, Even ha-Ezer 1:8; Birkei Yosef, Even ha-Ezer 1:14; R. Ovadiah Hedaya, No‘am, I, 130–137; R. Moshe Aryeh Leib Shapiro, No‘am, I, 138–142; and R. Ben Zion Uziel, Mishpetei Uzi’el, Even ha-Ezer, no. 19, reprinted in Piskei Uzi’el (Jerusalem, 5737), pp. 282–283. Teshuvot Ḥelkat Ya‘akov, I, no. 24, regards the issue as a matter of doubt. Divrei Malki'el expresses tentative support for the latter position but does so on the basis of the novel view that "once the semen has been emitted and has warmth only because of the ministration of the physician and his skill with the pipette or due to the heat of the bath" a baby born as a result of that process is not regarded as the son of the donor. Although Divrei Malki'el stands virtually alone in developing this argument¹⁰In his previously cited article in Be-Shevilei ha-Refu’ah, p. 30, R. Moshe Sternbuch presents an argument quite similar to that advanced by Divrei Malki’el in rejecting a paternal relationship between the donor of the semen and the child born of subsequent in vitro fertilization even when the zygote is implanted in the donor’s wife. Rabbi Sternbuch argues that “the act of conception takes place in the sterile petri dish itself which acts to commence conception, to unite both of them (i.e., the ovum and the sperm) as in the womb. This is not in the manner of conception since another power is combined therein, that is, the petri dish.”
The effect of denying paternal identity, asserts Rabbi Sternbuch, is to prohibit in vitro fertilization entirely. Rabbinic authorities who permit ejaculation of semen by the husband for purposes of artificial insemination sanction that procedure only because it leads to procreation. However, if in vitro fertilization does not result in a father-child relationship it does not serve to fulfill the commandment to “be fruitful and multiply” and hence ejaculation of semen for purposes of in vitro procedures is not permissible. See sources cited supra, note 8. With regard to artificial insemination, some authorities, including Arukh la-Ner, Yevamot 10a, and Maharam Shik al Taryag Miẓvot, no. 1, maintain that, although the child is considered the son of the donor, the donor does not fulfill the precept of procreation because no sexual act is involved. Rabbi Gershuni, although he too denies that artificial insemination results in a paternal-filial relationship, nevertheless regards the procedure as permissible for a married couple. Rabbi Gershuni argues that although artificial insemination does not serve to fulfill the commandment to “be fruitful and multiply,” nevertheless, since the procedure results in procreation of the human species, it serves to fulfill the prophetic mandate “He created [the universe] not to be a waste, He formed it to be populated” (Isaiah 45:18) and hence ejaculation of semen for that purpose is not for naught.
For a vaguely similar reason Rabbi Sternbuch, p. 29, opines that destruction of an embryo fertilized outside of a woman’s body is not prohibited. He states that “…. the prohibition against abortion is in the woman’s uterus, for the [embryo] has the potential to develop and become complete in her womb and it is destroyed. But here, outside the womb, an additional operation is required to implant [the embryo] in the woman’s uterus and without this it will … of its own not reach completion….” Rabbi Sternbuch cites no sources in support of that distinction. A similar view is advanced, without elaboration or citation of sources, by R. Chaim David Halevy, Assia, vol. XII, no. 3–4 (Kislev 5750). One source that might be cited in support of such a conclusion is Teshuvot Ḥakham Ẓevi, no. 93. Citing Sanhedrin 57b, Ḥakham Ẓevi rules that destruction of a golem does not constitute an act of homicide and is not prohibited because its gestation is not in the form of a “man within a man,” as evidenced by the fact that the Gemara, Sanhedrin 65b, reports that Rabbi Zeira commanded a person created by utilization of Sefer Yeẓirah to return to dust. That statement, however, cannot be taken as definitive since Ḥakham Ẓevi concludes that a golem lacks status as a Jew or as a human being for other purposes as well. See also R. Joseph Rosen, Teshuvot Ẓofnat Pa‘aneaḥ (Jerusalem, 5728), II, no. 7. Genesis 9:6 is cited by the Gemara and rendered “Whosoever sheds the blood of a man within a man his blood shall be shed” in establishing feticide as a capital transgression in the Noahide Code. Accordingly, there would be strong grounds to assume that a Noahide does not incur capital punishment for destruction of an embryo fertilized in vitro, but not for support of the position that a person born of in vitro fertilization may be destroyed with impunity or even for the position that there is no halakhic consideration forbidding a Jew to destroy a developing embryo outside the human body. Moreover, Ramban, cited by Ran, Yoma 82a, and Rosh, Yoma 8:13, maintains that Sabbath restrictions and the like are suspended for the purpose of preserving the life of a fetus. Those comments clearly reflect the view that there is an obligation to preserve fetal life. Thus, there are no obvious grounds for assuming that nascent human life may be destroyed with impunity simply because it is not sheltered in its natural habitat, i.e., its development takes place outside the mother’s womb. R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, V, no. 47, expresses the opinion that Sabbath restrictions are not suspended for the preservation of a zygote that has as yet not been implanted in the gestational mother on the grounds that the vast majority of such zygotes are not viable but adds the cautionary note that the empirical situation, and hence the halakhic ruling, may change with advances in the development of reproductive knowledge and techniques. The clear implication of his position is that destruction of such nascent life cannot be countenanced. R. Mordecai Eliyahu, Teḥumin, XI (5750), states unequivocally that surplus ova may not be destroyed. For a further discussion of the propriety of destroying fertilized ova see this writer’s article, “Ethical Concerns in Artificial Procreation: A Jewish Perspective,” Publications de l’Academie du Royaume du Maroc, vol. X: Problèmes d’Éthique Engendrés par les Nouvelles Maîtrises de la Procréation Humaine (Agadir, 1986), pp. 143–145.
There are, however, strong reasons to assume that there is no prohibition against the destruction of a nonviable fetus, as is stated by Rabbi Sternbuch, loc. cit. See Abraham S. Abraham, Nishmat Avraham, Ḥoshen Mishpat 425:1, sec. 19, and R. Zalman Nechemiah Goldberg, Teḥumin, V, 250. Nevertheless, such a conclusion is contrary to the view expressed by R. Eleazar Fleckles, Teshuvah me-Ahavah, no. 53, with regard to a nonviable neonate. See also Teshuvot Radbaz, II, no. 695. and himself concludes that a child born of artificial insemination is indeed the child of the donor, Rabbi Gershuni observes that a fertilized zygote sustained in a petri dish by means of "artificial nutrition and blood serum" should not be regarded by Jewish law as the child of either parent. The earlier presented rebuttal of Rabbi Waldenberg's argument applies with equal force to that advanced by Rabbi Gershuni. Moreover, any cogency the argument may have with regard to establishment of a paternal relationship notwithstanding, if parturition, in and of itself, serves to establish a maternal relationship, the sources of antecedent nutrition of the fetus are totally irrelevant.

Preservation of human life is commonly seen as the rationale underlying the ban against induced abortion. Each of the diverse authorities heretofore cited considers the essence of the prohibition to be closely akin to that of homicide. There are, however, other authorities who deem the destruction of a fetus to be unrelated to the taking of human life but nevertheless forbidden on extraneous grounds. Chief among these are the opinions of those who maintain that feticide is precluded as constituting a form of destruction of the male seed or that it is forbidden as a form of unlawful flagellation. R. Shlomoh Drimer (Teshuvot Bet Shlomoh, Hoshen Mishpat, no. 132) contends that the destruction of a fetus cannot be a form of homicide since the fetus cannot be viewed as "a life" in its prenatal state.¹³R. Drimer similarly argues that the a priori principle “How do you know that your blood is sweeter than the blood of your fellow?” cannot be applied in assessing the value of fetal life. Cf. below n. 65. He does not, however, spell out the nature of the crime committed in causing the death of a fetus. The origin of this view can be traced to the Teshuvot ha-Radbaz, II, no. 695, in which the author states explicitly that destruction of a fetus is not a form of homicide. R. Ya'ir Chaim Bachrach (Havot Ya'ir, no. 31), argues that feticide is included in the interdiction against onanism¹⁴This determination is based upon Tosafot, Sanhedrin 59b, and others who maintain that such practices are biblically prohibited. For a comprehensive list of sources, see Oẓar ha-Poskim (Jerusalem, 5725), IX, 163–64, and R. Moses D. Tendler, Tradition, IX (1967), nos. 1–2, pp. 211–12. Regarding the question of whether Noachides are bound by the prohibition against onanism, see Tosafot, Sanhedrin 59b; Mishneh le-Melekh, Hilkhot Melakhim 10:7; R. Naphtali Zevi Yehudah Berlin, He’emek She’elah 165:2; and R. Joseph Rosen, Teshuvot Ẓofnat Pa‘aneaḥ (New York, 5714), no. 30. and reasons that destroying the fetus is within the scope of the verse "slaying the children in the valley under the clefts of the rocks" (Isa. 57:5), which is interpreted by the Gemara, Niddah 13a, as having reference to the destruction of the male seed.¹⁵R. Jacob Emden, She’elot Ya‘aveẓ, (New York, 5721), no. 43, also makes brief mention of this consideration. See also Zekhuta de-Avraham, cited by R. Meir Dan Plocki, Ḥemdat Yisra’el (Pietrokow, 5687), p. 175. The author of Zekhuta de-Avraham offers an identical opinion, adding that feticide and onanism incur the self-same penalty—"death at the hands of heaven."¹⁶Cited by Ḥemdat Yisra’el, p. 175. In his responsum Havot Ya'ir accepts the ruling of Tosafot (Yevamot 12b) that women are also bound by the prohibition against destroying the male seed. He notes that, even according to the view of Rabbenu Tam that women are not included in this specific prohibition,¹⁷It is on the basis of Ḥavot Ya’ir’s declaration that feticide is forbidden as a form of “destruction of the seed” and of the diminished severity of such an act when performed by a woman (according to Rabbenu Tam) that R. Waldenberg counsels that it is preferable to seek a female (Jewish) doctor to perform even those abortions which are halakhically permissible. See Ẓiẓ Eli‘ezer, IX, 235. these practices are nevertheless forbidden to them, for women, too (Tosafot, Gittin 41b), are bound to bring to fulfillment the divine design of a populated world as stated in the words of Isaiah 45:18, "He created it [the earth] not a waste, He formed it to be inhabited."¹⁸Following this line of reasoning, feticide would be biblically forbidden even according to Rabbenu Nissim, who does not consider destruction of a fetus to be a form of homicide.

A somewhat similar objection is voiced by the late Rabbi Yechiel Ya'akov Weinberg.²¹Seridei Esh (Jerusalem, 5726), III, no. 127, pp. 344f. This responsum was originally published as an article in No‘am, IX (1966), pp. 193–215, and was reprinted subsequently in the third volume of Seridei Esh with a number of added notes. Havot Ya'ir maintains that women, although not bound by the commandment "be fruitful and multiply," are nevertheless obligated to fulfill the intent expressed in the verse, "He formed it [the earth] to be inhabited." This consideration, Havot Ya'ir maintains, precludes feticide even on the part of women. Rabbi Weinberg rebuts this contention, asserting that the obligation set forth in Isaiah 45:18 is understood by the authorities as paralleling the injunction "be fruitful and multiply" in that such considerations apply only to one's own progeny. Accordingly argues Rabbi Weinberg, assimilation of the prohibition against feticide to the ban against onanism would lead to the bizarre conclusion that a woman might be permitted to perform an abortion upon any woman other than herself—a conclusion not to be found in any halakhic source.