By Mira Postelnek
Infertility is a taboo subject, something often addressed in hushed tones and sympathetic whispers. It’s a topic “not discussed” or considered “rude” to mention in a public setting. All too common, this mentality only perpetuates shame and secrecy surrounding this extremely prevalent and devastating reality. According to studies conducted in 2022, approximately 6% of women face infertility, and 12% of women have complications carrying a pregnancy full-term. In the United States alone, roughly 1 in 5 women are unable to conceive naturally, even after a full year of trying – the medical definition of infertility.
Infertility is a complex medical topic and can vary from patient to patient, in both minor and major ways. Since it is such a complex topic, there have been multiple halachic papers written discussing the matter and answering questions of struggling couples. The most common treatments for infertility are Intrauterine insemination (IUI) and In vitro fertilization (IVF). These procedures involve the artificial insemination of a man’s sperm into a woman’s uterus directly, or in a petri dish, respectively.
The subjects of IVF and IUI are broad, multifaceted topics with endless possibilities for discussion and debate regarding ethical and halachic matters. One such question was posed to Rabbi Elan Segelman’s halachic discourse “Premarital Embryo Creation.” The case was as follows: shortly prior to engagement, Chaya was diagnosed with cervical cancer, and the couple decided to wait to perform the necessary hysterectomy until after their wedding. They intended to first create an embryo and eventually transfer the embryo to a surrogate. Due to the Covid-19 pandemic outbreak, however, their wedding was postponed, but the scheduled date for the embryo creation was maintained and rapidly approaching. Since it was necessary to remove Chaya’s genetic material prior to chemotherapy and the hysterectomy, she asked (PUAH) if she and her groom were still allowed to medically create an embryo together prior to their marriage. There are three main halachic issues that PUAH had to deal with in order to answer this question. First, determine if a hysterectomy is halachically permissible at all. Second, the method of sperm procurement, and lastly, the premarital embryo creation itself.
Prior to delving into the halachic background and considerations, we must first understand the medical background necessary for this case study. The fallopian tubes connect the vaginal canal to the uterus, where fetal development occurs. The CDC reports that each year “13,000 new cases of cervical cancer are diagnosed and about 4,000 women die of this cancer.” Depending on the location of the cervical cancer, a hysterectomy might be necessary. A hysterectomy is a surgical procedure to remove the womb (uterus), resulting in the patient being unable to carry a pregnancy after the operation. The discussion of castration is brought up in Leviticus regarding animals. In Gemara Shabbos, it is discussed that castration applies to human sterilization as well. However, regarding saving a life (pikuach nefesh), the Sages (Chazal) teach us that we are obligated to preserve life, even if we must violate a Torah prohibition (except for the three cardinal sins). Therefore, halacha would fully allow and obligate Chaya to get the hysterectomy since her life is in danger, regardless of the operation causing infertility. The next subject to understand is fertility preservation. A newborn female is born with millions of oocytes (eggs) in her ovaries, and this number is significantly reduced to 300,000 by the time she reaches puberty. Unlike men, who are constantly reproducing sperm, women are born with all the oocytes they will ever have. This is why in 2018, the American Society of Reproductive Medicine recommended that single women in their mid-thirties freeze their eggs to “prevent the consequences of their biological clock’s inevitable fertility decline.” Then, when a woman is married, she can unfreeze her eggs, fertilize them with her husband’s sperm, and create embryos to be implanted into her uterus via IVF. This procedure is also common in cancer patients, referred to as oncofertility. An unmarried woman undergoing the procedure of egg retrieval, has her oocytes immediately cryopreserved (stored at very low temperatures). According to Dr. Eli Ryback and many other fertility professionals, “embryo cryopreservation remains roughly 15% more efficient than egg freezing.”
Now that the medical background is understood, let’s delve into the halachic debate and decisions surrounding this case. Chaya wants to take advantage of the benefits of frozen embryos versus frozen oocytes and wants to know if it’s halachically permissible.
One major halachic issue to address is procuring the sperm for fertilization. Typically, when a couple is undergoing fertility treatment, they use what’s called a collection condom. Rabbi Moshe Feinstein states that couples undergoing fertility treatment must use a collection condom. He also mentions the possibility of alternatively utilizing “coitus interruptus.” Unfortunately, in this case study, a collection condom would be impossible since the procedure is occurring prior to marriage. The only route available would be masturbation, which is very controversial according to halacha. Rabbi Waldenburg addressed this conundrum and ruled that when no other option is available, masturbation is permitted for fertility purposes. Another consideration for embryo creation surrounds the concept of Niddah. Niddah is defined as “a woman who has menstruated and not completed the purification process afterwards.” This halacha is first cited in Vayikra 18:19, which states: “וְאֶל־אִשָּׁ֖ה בְּנִדַּ֣ת טֻמְאָתָ֑הּ לֹ֣א תִקְרַ֔ב לְגַלּ֖וֹת עֶרְוָתָֽהּ” meaning, “Do not come near a woman during her menstrual period of impurity to uncover her nakedness.” An unmarried woman is considered perpetually in Niddah, from the time she begins menstruation until she completes the purification process prior to marriage. The Sages teach that a child born during this period of impurity (Niddah) is called a Ben Niddah. However, according to Rabbeinu Peretz, a child conceived from a woman in Niddah would not be a Ben Niddah if the direct function of intercourse was not performed. Based on this understanding and following Rabbinic discourses, the majority halachic opinion maintains that conception during Niddah is permitted. Therefore, a medically conceived child would not be considered a Ben Niddah, since medical conception violated no Niddah Laws being there was no sexual act between the couple during this process. Since single women do not immerse in the Mikvah, Chaya is allowed to proceed with her scheduled egg retrieval prior to marriage with no concern of conceiving a “Ben Niddah.”
Upon thorough analysis and debate, the final halachic conclusion was that Chaya and her fiance could proceed with premarital embryo creation in a halachic manner. This is, of course, a complex and specific scenario, but as mentioned initially, this is a common issue that is being addressed by thousands around us daily. PUAH receives 400+ calls a day, and there are 10,300+ fertility cases supervised by PUAH alone. Understanding and awareness are of the utmost importance in order to support our community and fellow Jews.