Health Minister Nitzan Horowitz (Meretz) is going to instruct the professionals in his office to amend the procedures for in vitro fertilization (IVF) so that women whose husbands refuse to release them from the marriage (agunot) can receive a sperm donation without their husband’s approval. According to a Tuesday report in Walla (הורוביץ הנחה לאפשר לנשים עגונות ומסורבות גט לקבל תרומת זרע), women who are refused a religious divorce (get) will be able to present proof of their social security classification as aguna to the health authorities and receive permission to conceive from a sperm donor like any other woman.
The halachic world, which is still debating the idea of IVF itself, will not take kindly to this decision. I haven’t found a halachic reference to an aguna who seeks to become pregnant from a donor without her husband’s consent, but those will probably be forthcoming, now that Orthodox agunot will start asking their rabbis regarding this matter.
Clearly, Minister Horowitz is not bothered by the explosive outcome of his decision in terms of Jewish law. His predecessor, Yuli Edelstein, who wears a yarmulke, tried to advance IVF for agunot but was met with rabbinic resistance, supposedly on the grounds of “marit ayin” – actions which appear like a violation of Jewish law even though they are permissible, but are disallowed because of the concern that onlookers would conclude that the implied violation is acceptable. The classic example is drinking almond milk with your steak. An onlooker might conclude that it’s OK to drink cow’s milk with meat. The Shulchan Aruch’s solution is to place a few almonds next to your plate. So, if your neighbor who is estranged from her husband starts showing, you might conclude that she had illicit relations despite not having received a get from her husband – and we want to avoid that.
Attorney Orit Lahav, CEO of the Mavoy Satum (dead end) group, praised Minister Horowitz’s decision and pointed out that husbands who refuse to release their wives use the ticking biological clock as yet another means of pressuring them into unfair concessions. Lahav said she wishes for a time when women would not have to use the IVF avenue to preserve their right to become a parent.
The critical issue regarding IVF in a married woman has to do with whether it is considered an illicit act of conception or not. Jewish law prohibits a married woman from having relations with another man, and the offspring of these relations is a “mamzer,” which is popularly translated as “illegitimate” but does not include the offspring of an unmarried woman. Only a married woman can give birth to a mamzer, and the child, in turn, may not marry a Jewish spouse except for another mamzer or a convert.
Rabbis who approve of IVF (regardless of how long a couple should wait before the husband is found to be infertile) rely on a hypothetical note in Gemara Hagiga 15a that suggests a woman may become pregnant in the bath from a stranger’s floating sperm. The offspring of such a conception is not considered a mamzer, because it did not result from an illicit sexual act.
But a mamzer is also the product of other illicit relations, such as between close relatives. The rabbis fear that the offspring of an anonymous IVF donor may end up one day marrying another offspring of the same donor, meaning they would literally be marrying their sibling, so their child would be a mamzer.
This is why some rabbis have recommended using only the sperm of a gentile donor, where no danger of mamzer status exists.
It’s conceivable (no pun intended) that an aguna who becomes pregnant from a gentile donor even without her husband’s consent may not be giving birth to a mamzer – but, without a doubt, it’s high time for a widely-respected halachic authority to decide this matter, not merely based on marit ayin, but after discussion of all the issues involved: the suffering of the aguna, the sanctity of the still-existing marriage, and the halachic understanding of the IVF as illicit or permissible.
Until such a clear decision is published by a broadly accepted posek, I would advise individuals not to follow the statement in Tuesday’s Times of Israel, suggesting “Jewish law takes exception to a ‘chained’ woman conceiving a child with a man who is not her husband, as such a baby would be considered a mamzer … However, no such issue exists in the case of a ‘chained’ woman getting pregnant through artificial insemination, a concept that effectively exists outside the rules governing mamzer status.”
I’d like a second opinion…
