INFERTIUTY PRACTICE AND ORTHODOX JEWISH LAW

Transcription

1 FERTILITY AND STERILITY Copyright., 1975 The American Fertility Society Vol. 26, No.5, May 1975 Printed in U.SA. INFERTIUTY PRACTICE AND ORTHODOX JEWISH LAW JULIAN A. GORDON, M.D.,* RICHARD D. AMELAR, M.D.,t LAWRENCE DUBIN, M.D.,tAND. MOSES D. TENDLER, PH.D.:f: Department of Urology, University of Miami Medical Center, Jackson Memorial Hospital, Miami, Florida 33136, Departments of Urology, New York University School of Medicine and French and Polyclinic Health Center, New York, New York 10001, Department of Biology, Yeshiva College, and Department of Talmudic Law, Yeshiva University Theological School, New York, New York The physician dealing with fertility problems may find himself confronted by infertile Orthodox Jewish couples who, because of their strict adherence to Jewish law (halacha), present problems in the evaluation of their infertility and its treatment. Jewish law poses obstacles in semen collection, genital surgery, management of menstrual problems, and homologous (AIH) and donor (AID) insemination. The Biblical commandment "be fruitful and multiply" 1 is a basic tenet of Jewish life, as is the Biblical promise to be "as numerous as the stars of heaven and the sands of the seashore." 2 The Orthodox Jew, therefore, may have a religious compulsion to present himself for infertility evaluation. In addition to emotional and familial considerations, the Orthodox Jew's daily life is governed by a strict set of Rabbinic rules (halacha), although the observance of these rules may differ slightly from person to person. It is the purpose of this presentation to offer guidelines which will be acceptable to most Orthodox Jewish patients and which will allow the observance of ritual laws dealing with reproductive physiology and still permit satisfactory evaluation and therapy from the standpoint of the infertility specialist. We offer these suggestions in the hope of improving Received June 24, *University of Miami Medical Center. To whom reprint requests should be addressed. tnew York University School of Medicine. tyeshiva University. 480 the physician's understanding of these religious proscriptions so that the infertility problems of these patients can be dealt with more effectively. COLLECTION OF A SEMEN SPECIMEN AND AIH Masturbation is condemned by most Rabbinic authorities as a forbidden act, on the basis of the Talmudic interpretation of Biblical verses. 3 Coitus interruptus, or withdrawal, and the use of the condom are ordinarily prohibited on the basis of the Biblical injunction against "spilling of the seed needlessly."4-8 Since the sine qua non in the evaluation of male infertility is the semen analysis, and since AIH is a major therapeutic tool in dealing with infertility problems, the collection of semen from Orthodox Jews may present problems because of the above prohibitions. Although masturbation is "strongly condemned" and is not acceptable to strictly Orthodox patients, semen collection by coitus interruptus or the use of a condom either for fertility evaluation or for the collection of a semen specimen for AIH is carried out in a "natural" manner, and is clearly "not bringing forth semen in vain" because the semen will be used in an effort to fulfill the commandment of procreation. Therefore, semen collection either by coitus interruptus and ejaculation directly into a collection bottle or by the use of a condom during intercourse is acceptable to most Rabbinic authorities, including Rabbi Moshe Feinstein, who currently is one of

2 Vol. 26, No.5 INFERTIIJTY PRACTICE AND JEWISH LAW 481 the most renowned and respected authorities on Rabbinic law Ofcourse, ifthe condom is used, it must be of the type that will not damage sperm motility. The plastic seminal pouch, such as that manufactured by Milex Products, Chicago, Ill., is preferred.u According to these Rabbinic authorities, it is definitely not necessary to place a hole in the condom (as has been prescribed for Catholic patients), so that there will be no problem in collecting the entire specimen into the sheath or of losing any of the sample during collection. These semen collection methods have been sanctioned by Rabbinic authorities, and it is not necessary that the semen specimen be obtained only by spooning from the vagina after the couple has had intercourse, as is commonly believed. The husband's semen obtained by these techniques may be used for AIH, according to most Rabbinic authorities, even during the wife's period of ritual impurity (see below). There is a prevailing misconception among some Orthodox Jews that semen analysis can only be performed by spoon collection of a specimen ejaculated into the vagina. It may be necessary to advise the patients that the collection of semen directly into a bottle after coitus interruptus or through coitus with a condom is permitted by most Rabbinic authorities as long as information is thus obtained relating to their fertility or the semen itself will be used for insemination. The important concept here is that the emission not be a "wasteful" one. Semen collection which is performed in order to resolve an infertility problem is considered constructive and reproductive in intent. The question arises: if there is a good postcoital test, why bother with a semen examination at all? Because abnormal sperm structure may play a significant role in male infertility, and because sperm motility and seminal cytology cannot be properly evaluated in this manner, the postcoital test should be used as a substitute for the semen analysis only when it is impossible to persuade the patient to submit a proper specimen for examination. In addition, the volume of the seminal ejaculum may provide the urologist with therapeutic suggestions; measurement of semen volume cannot be made in the postcoital test. IMPOTENCE AND SPERM RETRIEVAL Semen can be obtained from some impotent patients, and even from those who are para- or quadriplegic, by inducing ejaculation with a mechanical vibrator specifically designed with a cup for semen collection. 12 If intercourse and ejaculation are impossible for the patient because of impotence, mechanical masturbation with a vibrator in order to produce a semen specimen may be performed on the patient by the physician, by the patient himself, or by the patient's wife, but only after special consideration by Rabbinic authorities. DONOR INSEMINATION The question of whether AID is permitted at all has not yet been definitively answered. A discussion of donor insemination which would include all objecting Biblical, Talmudic, and contemporary sources is beyond the scope of this paper. Artificial donor insemination was known to the ancients, and references to it can be found in the Talmud. 13 AID has also been discussed in the Rabbinic literature in great detail, dating back to the time of Maimonides, and those interested in a contemporary review of the subject are referred to the scholarly work by Rosner. 14 Questions which have arisen in this literature are multiple, and they include: What is the status of the child? Is it a mamzer (illegitimate)? Is the child

3 482 GORDON ET AL. May 1975 considered the child of the donor? After AID, is the woman considered the pregnant wife of another (and, thus, either an adulteress or at least prohibited from cohabitation with her husband)? Of course, is AID permissible at all, especially since it carries with it the possibility of incest if the child marries into the donor's family? Some of these halachic concerns are avoided when the donor is not of the Jewish faith. Only under situations of extreme need does Rabbinic opinion, as stated by Schwadron 15 and Baumol, 16 permit donor insemination. Individual cases, therefore, must be presented to competent Rabbinic authority before AID is undertaken. TESTIS BIOPSY AND OTHER SURGICAL PROCEDURES ON THE REPRODUCTIVE TRACT There are Talmudic regulations 17 governing surgical procedures which might alter the testicle, spermatic cord, or the whole genital system. These are based in part on the Biblical proscription against castration: one who is "crushed or maimed in his privy parts" shall not marry a Jewish woman. 18 However, it has been interpreted by Maimonides19 and others that an act of heaven which includes illness or congenital abnormalities is not included in this ban. Similarly, it may be deduced that surgery necessary for fertility evaluation (i.e., testicular biopsy) or for therapy (i.e., vasoepididymostomy, vasovasostomy, varicocelectomy, etc.) would be allowed and would not affect the husband's conjugal rights. Likewise, orchiectomy for tumor or severe infection falls under the same category. However, when genital surgery can be avoided, if at all possible, it should be (for example, vasectomy should not be performed routinely with prostatectomy). There is no question that vasectomy performed for sterilization is unacceptable. For futher information on urologic surgery and Jewish law, see the work by Jacobovits. 22 With regard to surgery on the female genital tract, questions arise only when procedures are performed that would interfere with female fertility. Thus, hysterectomy and tubal ligation are prohibited by Jewish law. However, most authorities consider this a Rabbinic and not abiblical prohibition. As such, when the health of the woman is endangered, such procedures may be considered after Rabbinic consultation. THE LAWS OF RITUAL IMPURITY, THEMIKVAH, AND THE FEMALE PATIENT There are many Biblical laws governing marital relations between Jewish husband and wife, 23 and these laws may pose obstacles to the management of infertility problems. Marital relations are interrupted at the first onset of each menstruation. The Orthodox Jewish male may not have sexual or any other physical contact with a woman until after the cessation of any menstrual bleeding as ascertained by internal examination, and the passing of 7 additional "preparatory days" during which there is no evidence of bleeding. At the end of the 7th day of preparation after the cessation of all menstrual bleeding, the wife immerses herself in a ritually approved pool of water (the mikvah), and only then may she resume marital relations and any other physical contact with her husband. The period of time from the onset of menstruation, the end of the 7th day of preparation, and until the wife immerses herself in a mikvah is called the "Nida state." In strict definition, the Nida state is induced only by bleeding of uterine origin into the vaginal tract as the result of physiologic disruption of the uterine lining and ofhormonal stimulation. Thus, mechanical injury, ulceration, or erosion of the uterine wall resulting in bleeding do not induce the Nida state. A cervical erosion which results in spotting or stain-

4 Vol. 26, No.5 INFERTILITY PRACTICE AND JEWISH LAW 483 ing is a medical problem of significance to this law only because the definite end of the menstrual flow cannot be determined easily. In this and other aberrations of the menstrual cycle, medical advice as to the origin of the bleeding may be sought so that the Rabbis can advise the woman of her status. Gynecologic examination does not pose problems relating to Nida unless the examination or procedure entails the insertion of an instrument into the cervical canal itself (as, for instance, during a D & C). Midcycle bleeding which results from hormonal stimulation is also considered to induce a Nida state. If a woman has a relatively short cycle (for example, 24 days), fertility problems may result because coitus may be delayed by the N ida state until after the fertile period. Documentation of the time of ovulation is important; if the woman ovulates before the mikvah, during the Nida state, it is possible to delay ovulation by the administration of small doses of exogenous estrogen in the early part of the cycle. 24 AIH may be performed at any time during the N ida period, according to Rabbi Feinstein, if no other method proves successful. 10 While on the subject of the mikvah, or ritual bath, mention should be made of the fact that many of the more observant Orthodox Jewish males, especially those of the Hassidic sect, habitually have daily immersions prior to prayer. The baths are usually very hot, and, if the ritual is practiced to excess, they may contribute to poor semen quality because of the deleterious effects of heat on spermatogenesis.25 Inquiry about the practice of taking daily hot ritual baths should be made by the physician when an Orthodox Jewish male is examined for an infertility problem. Religious rules that induce men to take ritual baths have their origin in Hassidic literature, and are not a halachic (Rabbinic law) imperative except just prior to the major Jewish holy days. However, the temperature of these baths is set only for comfort. Therefore, one can advise these patients that, if they do not wish to reduce the frequency of these baths, the temperature of the water should be adjusted so that it is cooler than body temperature. SUMMARY The evaluation and management of infertility problems in Orthodox Jewish couples can be made difficult because of restrictions which may be imposed by religious rules. The origins of the religious laws governing problems such as semen collection, diagnostic and therapeutic genital surgery, menstruation, and homologous and donor insemination are reviewed. Contemporary Rabbinic authorities are quoted; their opinions may serve as guidelines for the patient and physician dealing with infertility problems. REFERENCES 1. Genesis 1:28, 9:1-7, 35:11 2. Genesis 22:17 3. Tractate Niddah. In Babylonian Talmud, p 13B 4. Genesis 38: Rosner F: Modern Medicine and Jewish Law. New York, Yeshiva University Press, 1972, p Maimonides Mishne Torah, Vilna 1900 (Hilchoth Issurei Biyah 21:18) 7. Rosh (Asher ben Yechiel) Venice, 1607, 33:3 8. Karo J: Shulhan Aruch, ed. Romm Vilna, Rosner F: Modern Medicine and Jewish Law. New York, Yeshiva University Press, 1972, p Feinstein M: Even Ha'Ezer. Responsa Iggrot Moshe, Part I, Nos 70 and 71, New York, 1961; Part II, No 18, New York, Amelar RD, Dubin L, Schoenfeld C: Semen analysis. Urology 2:606, Amelar RD: Infertility In Men. Philadelphia, F A Davis Co, Tractate Hagigah. In Babylonian Talmud, p 14B 14. Rosner F: Modern Medicine and Jewish Law. New York, Yeshiva University Press, 1972, p Schwadron SM: Responsa Maharsham (Brezany 1910), Vol 3, No 268

5 484 GORDON ET AL. 16. Baumol Y: Responsa Emek Halakhah, No 68. New York, Tractate Shabbath. In Babylonian Talmud, p llob 18. Deuteronomy 23:2 19. Maimonides 16:9 20. Schreiber M: Hatham Sopher. Vienna, 1855, Even Ha'Ezer, Nos 17 and 19 May Otzar/Haposkim. Jerusalem, Even Ha'Ezer 1: Jakobovits 1: Jewish Medical Ethics. New York, Bloch Publishing Co, 1967, p Leviticus 12:2, 15:19--28, 18:5--9, 20: Jewelewicz R: Personal communication, Amelar RD, Dubin L: Male infertility: current diagnosis and treatment. Urology 1:1, 1973 This lab still isn't using Serono R.I.A. kits. Serono Laboratories, Inc. 607 Boylston Street, Boston. MA (617) Istituto Farmacologico Serono, Via Casilina 125, Rome, Italy 00176