With nearly 100,000 babies born in the U.S. last year through in-vitro fertilization, the recent Alabama Supreme Court ruling on the legal status of embryos can potentially impact an untold number of future lives. Since last month’s bombshell ruling, couples struggling with infertility have been reaching out to us at PUAH from across the country, anxious about the repercussions and worried about their own frozen embryos.
PUAH, founded in 1990, bridges the gap between fertility treatment and halacha, offering education, counseling and coaching, as well as lab observation to prevent human error.
The case which has thrown the entire fertility world into an uproar involved a Mobile, Alabama fertility clinic, the Center for Reproductive Medicine, located in the Mobile Infirmary Medical Center. Back in 2020, a patient from the hospital’s psychiatric unit managed to enter the fertility lab’s embryo storage facility and pull three frozen embryo vials out of the liquid nitrogen tanks. The liquid nitrogen scalded his hands and he instantly dropped the vials, which crashed to the floor.
A tragic accident? Undoubtedly. A case of medical negligence? Apparently. Yet, the three families to whom the embryos belonged took it further. They sued the medical center and clinic doctors for wrongful death – viewing the destruction of their embryos as an act of taking a life.
The state Supreme Court, where seven of the eight justices, including Chief Justice Tom Parker, are fundamentalist Christians, agreed. In a landmark decision, they accepted the parents’ ability to sue for wrongful death, ruling that embryos are “extrauterine children.”
The ruling sent shockwaves throughout the fertility community.
If destroying an embryo is akin to murder, what does that mean for IVF treatment, which involves producing multiple embryos, some of which are implanted, others stored for future use, and still others destroyed? Will doctors now hesitate to perform IVF, knowing they are exposing themselves to criminal lawsuits?
But beyond that, as a ruling emanating from religious values, the obvious question for us is, what does halacha have to say about this? Do we agree with the view that an embryo has the same status as a child?
To address this issue, PUAH, in partnership with the National Council of Young Israel, recently held a fascinating webinar for community rabbanim given by Richard V. Grazi, M.D., founder of Genesis Fertility and Reproductive Medicine and director of the Division of Reproductive Endocrinology at Maimonides Medical Center.
Over his almost 40 years of practice, Dr. Grazi has developed close relationships with many leading poskim. In fact, many of the earliest teshuvas about fertility halacha written by gedolim like Rav Shlomo Zalman Auerbach, Rav Yitzchok Zilberstein, Rav Mordechai Eliyahu, Rav Shmuel Wosner and others, were in answer to questions posed by Dr. Grazi.
Dr. Grazi began with a disclosure: “I have a professional lifelong bias towards creating new Jews in the world, so this decision really bothers me!”
He first gave some medical background. The reason, he explained, why so many embryos are produced during the IVF process, is because, statistically, the majority of them will not be genetically viable. Most embryos produced during IVF will not be cryopreserved, and even those that are may not be found viable once they are biopsied pre-implantation.
In other words, he said, to call an embryo a “person” is patently untrue as, statistically, most are not capable of developing into a live baby.
Dr. Grazi went on to demonstrate that halacha’s view of an embryo is quite different from that of the Alabama Supreme Court. Modern reproductive treatments, such as artificial insemination and IVF, involve a host of complex halachic issues, and poskim have been addressing these issues ever since the treatments emerged. Dr. Grazi cited many such teshuvos that delineate the status of the embryo.
Some examples:
- May one be mechalel Shabbos to save an embryo? If an electrical failure occurs in a fertility lab over Shabbos, is a Jew permitted to turn the electricity back on in order to save the embryos? Rav Wosner paskened that embryos do not have the status of a person and, therefore, one may not violate Shabbos in order to sustain them. Rather, in the above case, a non-Jew should turn on the electricity.
- May one perform Preimplantation Genetic Testing (PGT), in which embryos found to have genetic abnormalities are discarded? When PGT was first developed, Rav Yitzchak Zilberstein ruled that this technique, which helps couples avoid the suffering of having a baby with a life-threatening genetic disease, was allowed. Rav Ovadia Yosef paskened that PGT is even allowed in order to choose the child’s gender.
Rav Mordechai Eliyahu and Rav Chaim Dovid Halevi likewise ruled that embryos that are not going to be used for IVF may be discarded.
- Is an embryo entitled to inheritance? A case was brought to the Beer Sheva beis din regarding embryos that were frozen at the time of the parent’s death. Were these embryos, should they end up developing into babies, entitled to the parent’s inheritance (i.e. that a portion of the yerusha must be set aside for these potential future children)? The beis din ruled no, because everyone agrees that embryos are not considered children.
Dr. Grazi concluded his talk by detailing the steps fertility advocacy organizations are currently taking to overturn this ruling and prevent it from spreading further. He reassured the audience that there is no imminent threat to IVF in any of the major Jewish centers of the country.
Gila Arnold contributed to this article.
