I recently received an inquiry about serving as a sperm donor for an infertile couple. Is it a Mitzvah to do so? What do Jewish traditions, thought, and values advise on this matter?
Your sensitivity toward your friends’ circumstances is deeply rooted in Jewish tradition. Jewish history begins with the agony of an infertile couple, Abraham and Sarah. Both the Torah and rabbinic literature are filled with profound sympathy for women who cannot have children for whatever reason. Jewish tradition recognizes women’s legitimate emotional desire and practical need for children and embodies that recognition in law. While women are exempted from the commandment of procreation, they nevertheless have a right to bear children (see Talmud Ketubot 64a), which gives them concrete legal powers and privileges.
At the same time, your intuition that this is not an obviously praiseworthy act of living kindness – gemilut chassadim – is also correct. Rights can be overridden by duties. For example, a woman’s right to bear children certainly would not permit her to commit adultery while married to an infertile man, even with her husband’s consent and with no motive other than pregnancy.
The questions before us therefore are:
Q1) Is there a Jewish legal prohibition against a married woman having a child with a man other than her husband by means of artificial insemination or in vitro fertilization?
Q2) Is there a prohibition against the man ejaculating for that purpose?
Q3) If there is no legal prohibition, is there nonetheless a moral or ethical objection?
Q4) If there is such a moral or ethical objection, is that objection sufficient to override a woman’s right to bear children if she otherwise cannot have a biological child?
Q5) If they are not sufficient, is the best way of achieving that right to have a known Jewish sperm donor?
A1) A solid consensus of recent halakhic authorities holds that the technical sin of adultery, and the stigma attendant on children of adultery, do not apply to cases of artificial insemination. The currently normative halakhic ruling is that there is also no legal effect on the marriage. So I think the most likely answer to Question 1 is no with regard to the woman.
A2) The default setting of Jewish law is to permit male ejaculation only in the context of marital sex. Contemporary authorities have nonetheless adopted theories that permit ejaculation for the purpose of testing fertility, or for the purpose of procreating with one’s wife via artificial insemination or in vitro fertilization when those methods of procreating are medically preferable, or when there is a legitimate risk of developing infertility. These theories do not in principle depend on the marital relationship. However, it’s not obvious to me that there would or should be the same willingness to rely on those theories in this case.
A3) In any case, saying that an action is not formally prohibited does not imply approval. The Talmudic rabbis considered the possibility of insemination without sex through a liquid medium, such as the water of a river, and it is clear to me that they would have looked with horror at a married fertile woman deliberately impregnating herself through such means from the sperm of another man. The ground of their disapproval is unclear – we can speculate either that they saw it as deeply unhealthy for a marriage, or that they saw it as quasi-adultery.
A4) But what if the woman has no option for childbearing other than ending this marriage and contracting another? In the reverse case, Jewish law formally requires a man who has not fulfilled the mitzvah of procreation to divorce their infertile wives and marry a fertile woman. However, this law is never enforced; it is one of the rare instances where the legal tradition openly surrenders to sympathy. Perhaps there is a general principle that we strive to find any way to keep a viable marriage intact, even if that requires sacrificing the connection between marriage and procreation, whether by permitting childlessness or by permitting procreation via a third human party.
This is in essence the choice made by our foremother Sarah when she encouraged Avraham to sleep with Hagar. But the difficult outcome of that choice makes its message for us at best ambiguous.
Your question must also be addressed within the context of modern technology’s general sundering of the relationship between sex and reproduction, via effective contraception, in vitro fertilization, chimerazation, and perhaps soon cloning. Do we see our role as standing in the breach and maintaining or reconstructing that relationship to the extent possible, or rather as figuring out how to apply our traditional system of values to a practically changed world?
On the whole Jewish law has not taken the path of maximum resistance, and I myself see effective contraception as a good which our conception of marriage has properly assimilated, although there is still a healthy debate about the extent to which that should be the case. .
A5) So let us assume for the moment that donating the sperm in this case is not technically forbidden, and acknowledge the possibility that a woman is entitled to make this choice even if it raises moral concerns, or that there are no moral concerns From both halakhic and psychological perspectives, I still wonder whether it wouldn’t be better to use an anonymous Gentile sperm donor than a known Jewish donor.
I recognize that I do not know your friends’ specific circumstances, and I have not experienced their pain firsthand. But from what I know - acknowledging that they may have the halakhic right to choose otherwise - my default setting would be to encourage them to engage in the great mitzvah of adoption, and I do not see it as a mitzvah to be a sperm donor for them.
I’m not at all sure I would reach the same conclusion in cases where both husband and wife are physically involved in the creation of the child, either by having the union of the husband’s sperm and the wife’s egg gestated in another women’s uterus (surrogate motherhood) or by gestating the union of the husband’s sperm and another woman’s egg in the wife’s uterus. Those seem to me cases where the attitude of halakhic Judaism is still indeterminate, and properly so.