Cloning People and Jewish Law
by Rabbi Michael J. Broyde
A person without knowledge is surely not good; he who
moves hurriedly blunders; Proverbs (Mishle) 19:2.
Preface
The relationship between modern technology, biomedical
ethics and Jewish law has been well developed over the last fifty years. As
has been noted in a variety of sources and in diverse contexts, Jewish law
insists that new technologies -- and particularly new reproductive
technologies -- are neither definitionally prohibited nor definitionally
permissible in the eyes of Jewish law, but rather subject to a case by case
analysis. Nonetheless, every legal, religious or ethical system has to
insist that advances in technologies be evaluated against the touchstones
of its moral systems. In the Jewish tradition, that touchstone is halacha:
the corpus of Jewish law and ethics. This short paper is an attempt to
create a preliminary and tentative analysis of the technology of cloning
from a Jewish law perspective. Like all preliminary analysis, it is
designed not to advance a rule that represents itself as definitive
normative Jewish law; rather it is an attempt to outline some of the issues
in the hope that others will focus on the problems and analysis found in
this paper and will sharpen or correct that analysis. Such is the way that
Jewish law seeks truth.
In the case of cloning -- as with all advances in
reproductive technology -- the Jewish tradition is betwixt and between two
obligations. On one side is the general Jewish obligation to help those who
are in need, and particularly exemplified by the specific obligation to
reproduce, thus inclining one to permit advances in reproductive
technologies that allows those unable to reproduce, to, in fact, reproduce.
On the other side is the general inherent moral conservatism associated
with the Jewish tradition's insistence that there is an objective God-given
morality, and that not everything that humanity wants or can do is proper;
this specifically is manifest in the areas of sexuality where the Jewish
tradition recognizes a number of halachic doctrines which restrict sexual
activity. In addition, the Jewish tradition advises one to pause before one
permits that which can lead down a variety of slippery slopes whose
consequences we do not fully understand, and whose results we cannot
predict.
It is the balance between these various needs that
drives the Jewish law discussion of all assisted reproductive technology
and it is in that spirit that this is intended to be a preliminary analysis
of the problem of cloning.
I. Introduction
An analysis of the implications of cloning found in
Jewish law really contains within it three distinctly different problems in
need of resolution. The first one discusses whether the cloning process is
permissible (mutar), prohibited (assur), or a good deed (mitzvah).
However, the determination of whether any particular conduct is good, bad
or neutral is not dispositive in addressing the second issue: the familial
status of an individual (re)produced through cloning in relationship to
other humans generally, and other members of this person's
"family" specifically.2 Finally,
even when conduct is permissible or perhaps even a mitzvah, Jewish law
recognizes that the (rabbinical) authorities of every generation have the
authority to temporarily prohibit that which is permissible based on the
perception that this intrinsically permissible activity could lead to other
more serious violations.3 Perhaps cloning
is such a case.
Section II of this article will review of the current
state of technology and science as it relates to cloning. Section III will
address the question of who is the family of the clone according to Jewish
law and Section IV then proceeds to address whether cloning is permissible,
prohibited or a good deed.4 Section V will
address the questions of cloning and public policy from a halachic
perspective.
II. Cloning: The Scientific Background
Cloning, until now the subject of the fictional analysis
of the type found in the book The Boys From Brazil, has become a
medical reality with the recent cloning of a sheep. Indeed, there is no
doubt that in a very short number of years it will be medically possible to
clone human beings, and there is already an extensive discussion about
whether such conduct should be permissible.5
In order to discuss cloning, one must understand what
exactly is cloning. In essence, every human being currently in the world is
the product of a genetic mixture of that person's mother and father. One's
father provides half of one's nucleic genetic material and one's mother
contributes the other half; this genetic material is united in the process
that we call fertilization, which normally happens after intercourse, but
can also happen in a petri dish after in vitro fertilization (called IVF).
A child bears a genetic similarity to his mother and father but cannot be
genetically identical to either one of them as each of them has only
contributed half of their genetic materials. Every person has, along with
his or her nucleic DNA, mitochondrial DNA which is not located in the
nucleus of the cell but in the cytoplasm. This mitochondrial DNA is
inherited solely from one's mother through the egg that she provides and is
identical to hers; mitochondrial DNA creates certain proteins needed to
function. A father contributes no mitochondrial DNA to his children. As
noted in an editorial in Nature, a woman suffering from a
mitochondrial disease might be able to produce children free of the disease
by having the nucleus of her egg implanted in a donor's oocyte, thus
providing the same chromosomal genetic code, but with disease-free
mitochondrial DNA.6
Siblings who are not identical twins share some of the
genetic materials of their parents; however since each sperm and each egg
take a different set of material from the parents, each sibling has a
unique genetic makeup based on a combination of portions of their parents'
genes different from that found in their siblings. (All children of the
same women have the same mitochondrial DNA, which has a higher mutation
rate than nucleic DNA.) Identical twins, however, are the product of a
single fertilized egg of a unique genetic makeup which splits in half after
fertilization, leaving two fully formed zygotes which develop into two
fully formed -- but genetically identical -- siblings.7 These two children share an absolutely identical genetic makeup and until
recently represented the only case available in which two people could have
an identical genetic makeup.8
In the current state of cloning technology, genetic
material is taken from a person and is isolated from that person's cells.
It is then introduced into the nucleus of an egg/ovum whose own nucleic
genetic material has been destroyed, so as to produce an egg/ovum that
contains a full set of genetic material identical to the nucleic genetic
material of the person whose genetic material was donated. If the genetic
material is taken from one person, and the egg is taken from another, the
non-nucleic genetic material of the clonee will be that of the egg donor,
and not the gene donor, whereas the nucleic genetic material will be from
the gene donor. (The exact role of non-nucleic DNA in character formation
is unknown at this time, and one is simply uncertain as to how close the
phenotypical resemblance will, in fact, be; however, the current state of
technology indicates that the vast amount of one's genetic characteristics
are determined by one's nucleic DNA.) A woman could avoid this problem and
produce a "full clone" by using her own genetic material and one
of her own ovum/eggs in the cloning process; that clonee will have the
exact same DNA makeup as its clonor.
Through the stimulation of that egg/ovum, it is induced
to behave like a fertilized egg and it then starts the process of cellular
division that leads it to behave as if it is a newly fertilized egg with
genetic materials from a mother and a father. It divides and reproduces,
and when implanted into the uterus of a gestational mother, the zygote will
grow and develop into a fully formed fetus which will eventually be born
from the uterus of its gestational mother. It is important to recognize
that in the current state of technology, all fertilized eggs -- including
cloned ones -- are implanted in a uterus and are carried to term like all
normal pregnancies. (In theory, the gene donor, the egg donor and the
gestational mother could all be the same person, if the clonor is a woman.
Obviously, a man can only be a nucleic DNA donor.)
The child that is born from this gestational mother is
genetically identical to the donor(s) of the genetic material and bears no
genetic relationship to the gestational mother.9 It is not a combination of the genetic material of two people (the mother
and father). It is instead identical to the genetic makeup of the one who
donated the DNA (or perhaps the two women who donated the nuclear DNA and
mitochondrial DNA). It is as if, on a genetic level, this person produced
an identical twin, many years after the first person was born.10 It is genetically impossible to
distinguish cells of the clonee from cells of the clonor as their genetic
makeup remains absolutely identical. Indeed, there is no reason why this
process could not be done from the cells of the person who is deceased.
III. Status Issues Related to One Who is Cloned
A. Who is the Clonees Family
The Jewish legal tradition would, in my opinion, be very
much inclined to label the gestational mother (the one who served as an
incubator for this cloned individual), as the legal mother of the child, as
this woman has most of the apparent indicia of motherhood (see infra)
according to Jewish law. While this child bears no genetic relationship to
its gestational mother, particularly when the clonee is a male, there are
no other possible candidates whom Jewish law could label the mother, and
thus it seems reasonable to believe that this woman would be considered the
halachic mother of the child.
One might, at first glance question this result.
However, consider the case of a woman born with no ovaries, who as an
infant is given an ovary transplant. Twenty years later, this woman marries
and has a child. Who is the legal mother of the child?. I am convinced that
Jewish law acknowledges that the women who received the ovary transplant --
who had a sexual relationship with a man, and within whose body she
ovulated, conceived, implanted, nurtured and bore this child -- is the
halachic mother of the child, even though she bears absolutely no genetic
relationship with the child.11 Thus, this
child would have a maternal relationship with the woman who bore him.
Elsewhere I have written:
1) If conception occurs within a woman's body, removal
of the fetus after implantation (and, according to most authorities, after
40 days) does not change the identity of the mother according to Jewish
law. The mother would be established at the time of removal from the womb
and would be the woman in whom conception occurred.
2) Children conceived in a test tube and implanted in a
host carrier are the legal children of the woman who gave birth to them
since parturition and birth occurred in that woman, and conception is not
legally significant since it occurred in no woman's body.
3) Children conceived in a woman who had an ovarian
transplant are the legal children of the woman who bore them.12
Rule two governs this case, it would appear, and thus
the gestational mother is the legal mother according to Jewish law.
However, in the last five years a quite robust
discussion within Jewish law has developed as to whether a child can
halachicly have two or more mothers. According to my teacher, Rabbi J.
David Bleich, a preeminent authority on Jewish medical ethics as well as
other areas of Jewish law, a number of halachic authorities would be
inclined to rule that it is possible for a child to have two mothers
according to Jewish law, and in a case of surrogate motherhood, both
mothers are to be considered the mother; Rabbi Bleich reports that the late
Rabbi Shlomo Zalman Auerbach adhered to this view.13 If such was the halacha, there would be little doubt that the one who
contributed the genetic materials would also be considered the mother
according to Jewish law were she a woman -- as her contribution is clearly
greater than the egg donor, who is considered a mother by this analysis.
Indeed, it is quite possible to argue that both the clonor and the egg
donor, who contributes the mitochondrial DNA, would be considered
"mothers" according to Jewish law by this analysis, which assumes
that more than one mother is possible. The logic behind naming the one who
contributes the nucleic genetic material as the mother seems persuasive if
one considers the egg donor to be a mother in surrogacy cases. If one
maintains that a woman who contributes an egg and does not carry the child
to term to be a mother according to Jewish law, certainly one who
contributes all of the genetic materials -- twice as much as is normally
contributed by the mother -- is considered a mother according to Jewish
law, by these same authorities. The rationale for labeling the contributor
of the egg/ovum as the mother would seem to be that the contribution of
either the mitochondrial DNA or the egg itself is enough of a contribution
that, - within a system that labels any woman who contributes as "a
mother" -- this person too is a mother.
On the other hand, if one agrees with those authorities
who label the gestational mother as "the only mother" to the
exclusion of all other mothers and the ovum donor as of no legal
significance according to Jewish law, one is uncertain as to what is the
result in this case. The contributor of the genetic material still lacks
the indica of motherhood according to this school of thought; however,
unlike the typical mother, who contributes but half the genetic material,
this woman contributed all of the genetic material, and thus has a greater
claim to parenthood than an egg donor in the case of surrogate motherhood.14 Nonetheless, the weight of this line of
reasoning argues that Jewish law focuses on parturition and birth, and
labels the gestational mother as the "real" mother. This result
should govern the case of cloning also -- the birth mother should be the
"real" mother according to Jewish law.
If the donor of the genetic material is a man, it would
appear that the above logic about who is the mother is even more persuasive
in determining who is the father. A man who reproduces through in vitro
fertilizations contributes only half of the genetic material through his
sperm, and is still considered the father according to normative Jewish law
(even though there has been no sexual act and no clear procreative
activity). Certainly in this case where the man contributed all of the
nucleic genetic material, that would appear to be enough to label this
person the father according to Jewish law, and to state that this person
has fulfilled the commandment to be fruitful and multiply, or its rabbinic
analog.
Of course, to reach this result, one must resolve a
number of halachic disputes about the duty to procreate. There are those
authorities who maintain that absent a sexual relationship, there is no
paternity; certainly those authorities rule that no paternity is
established in the case of cloning.15 So
too there are some authorities who rule that absent a sexual relationship
-- even if paternity is established -- there is no fulfillment of the
biblical obligation to "be fruitful and multiply" or a
fulfillment of the rabbinic obligation to "inhabit the earth".
Cloning involves no sexual relationship, and thus would not fulfill the
mitzvah to procreate according to Jewish law.16
However, neither of these two approaches are considered
normative in Jewish law. The vast majority of Jewish law authorities rule
that children produced through other than sexual means are the legal
children of the inseminator, and indeed such activity is considered a
positive religious activity (a mitzvah) -- a good deed. As Professor
Irving Breitowitz stated in a recent article on preembryos:
AIH [Artificial insemination of the Husband's sperm] is
generally regarded as a halakhically permissible procedure through which
paternity can be established and the mitsvah of peru u-revu ["be fruitful and multiply," the biblical obligation to have
children] or at least la-shevet ["to be inhabited," the
rabbinic obligation to have children] can be fulfilled. By and large most poskim [decisors of Jewish law] have assimilated IVF [invitro fertilization] to
AIH and have permitted its utilization ... Virtually all contemporary posekim have concluded, first, that the egg and sperm providers do have a parental
relationship with the IVF generated offspring; second, that the procedure,
if undertaken for procreation by an otherwise infertile couple does not
violate the prohibition against hashhatat zera [wasting sperm/seed];
third, that one may fulfill, through any resulting offspring, either the
mitsvah of peru u-revu [the biblical obligation to have children],
or at the very least, the "lesser" mitzvah of la-shevet [the rabbinic obligation to have children].17
The next sentence to Rabbi Breitowitz' article states
"These will be the assumptions on which this article is
predicated" and I too will predicate this article on these
assumptions.18
Thus, in summary, it is relatively clear that Jewish law
would be inclined to view the gestational mother in a case of cloning as,
at the very least, likely to be the mother. This is no different than a
surrogate mother - who bears no genetic relationship to the child - and yet
is at very least considered likely to be the mother, such that the child
would be prohibited to marry any of the relatives of the surrogate mother
who carried the child to term.
It seems logical, in this author's opinion, that when
the genetic donor is a man, he would have the status of the father and
would fulfill the duty to have children, either its biblical or rabbinic
component.19 If the genetic donor is a
woman, perhaps one could claim that the gene donor is also the mother in
accordance with the logic of Rabbi Bleich found above, or in accordance
with those authorities who label the egg donor the mother according to
Jewish law in cases of surrogacy.20 There
is little doubt that the genetic donor would be, at least, classified as
the mother as a stricture based on doubt, prohibiting sexual relationships
with her relatives or her (if the child is male). This might also be the
case for the egg/ovum donor, who is the contributor of the mitochondrial
DNA, whose effect on the clone has yet to be fully elaborated on by the
scientific community. (It is known that mitochondrial DNA contains the
encoded information for a variety of proteins or protein portions. How
changes in one person's mitochondrial DNA would subtly effect that person's
characteristics is quite unknown.)
This leads us to one of the anomalies found within the
area of establishment of maternity and paternity according to Jewish law.
Given the fact that for the foreseeable future there will always be a birth
(surrogate) mother with no genetic relationship to the child who has a
tenable claim as the "real" mother of the child (absent the
acceptance of the logic which recognizes that a person can have two mothers21,) it will be markedly harder for a woman
to be considered the mother of her cloned progeny than it wold be for a man
to be considered the father of his cloned progeny. The rationale for this
distinction is relatively clear: since there are no other possible
candidates for paternity, the man who donates sperm -- or in the case of
cloning, the whole genetic material -- becomes the father according to
Jewish law. The egg/ovum donating woman (or the gene donating woman in the
case of cloning) who donates the exact same thing as the man does in a case
of surrogate motherhood (half the genetic material) has a harder time
demonstrating her halachic status as mother, as there is another woman
claiming that position -- the gestational mother, who has a very strong
claim in Jewish law.
This observation -- that the man who provides half the
genetic material is always the father, but the woman who provides half the
genetic material is not always the mother, and might never be -- leads to
the realization that we appear to have established a normative rule of
halacha: when establishing who is the mother and who is the father, halacha
insists that only men can be the father and only women can be the mother.
This seems consistent with the normative values found within Jewish law.
While little textual proof can be found supporting this assertion -- as the
classical poskim never considered the possibility of any other rule -- this
seems logical.
A number of individuals have suggested that -- since
this child clearly would lack a father according to Jewish law in the case
of a woman donating genetic material to be cloned and the gestational
mother is the "mother" according to Jewish law -- maybe the
provider of the genetic material should be the "father" whether
that person is a man or a woman, as providing half the genetic material
seems to be enough according to most halachic authorities to label one the
"father" even absent intercourse. The possibility that motherhood
and fatherhood can be defined independently of the mother or father's
gender is explicitly discussed by Rabbi Joseph Babad in Minchat Hinuch
189(1), who discusses the case of an androgenous male who fathers a male
child and then has a (homo)sexual relationship with that male child. Rabbi
Babad speculates that if the male child has a homosexual relationship with
his father, both are liable for incest as well as homosexual activity.
However, if the sexual relationship is with his father's female sexual
organs (after all he is androgenous), Rabbi Babad speculates that "the
son should be liable for sexual relations with his mother, perhaps."
Rabbi Babad continues this line of reasoning, -- limiting it with modifiers
such as "perhaps" and "maybe" -- which incline one to
think that the sexual identification of one's mother and father is not
crucial to the definition, but rather maternity and paternityare almost
interchangeable with each other (i.e., a man who fathers a child
could be called a mother is some circumstances).
Notwithstanding the presence of this very tentative
analysis, there is little or no precedent for such an analysis; the
classical Jewish law codes leave little room for this discussion, which
seeks to define motherhood and fatherhood in reference to the gender of the
parents and not independent of the gender.22 Indeed, even Rabbi Babad's analysis seems to uncouple only gender from
parental status in the case of one whose gender status is uncertain (even
though he fathered a child); no such ambiguity is normally present.
B. The Identical Twins Issue
There are those who have suggested that the relationship
between the clonee and the clonor is that of siblings and not of parents.
While this argument seems to have a genetic basis, as the relationship
between the clonee and the clonor most closely resembles the relationship
between identical twins (although in most cases the mitochondrial DNA will
be different), it would appear that there are significant halachic problems
with this analysis. The definition of siblings found in Jewish law is
either a common mother or a common father or both. As the Talmud notes in
Yevamot 97b, one can imagine a situation in which children are siblings in
which they have no legally cognizable genetic relationship, but nonetheless
are considered siblings because they shared a uterus with a common mother.
Consider the case in Yevamot 97b:
Twin brothers who were converts, or similarly
emancipated slaves, may neither participate in chalitza nor a
levirate marriage; nor are they punishable for marrying their brother's
wife [as converts lose their legal relationship with their prior family].
If, however, they were not conceived in holiness [their mother was a
gentile when they were conceived] but were born into holiness [had
converted to Judaism before their birth] they may neither participate in chalitza nor a levirate marriage and are guilty of a punishable offense if they
marry their brother's wife.
Rabbi Shlomo Yitzchaki, Rashi, commenting on the
final words of this talmudic passage, states that the two brothers in the
final case are prohibited to marrying each other's wives since they were
born to the same Jewish mother and thus, are related to each other as
half-brothers, i.e., they have a legally recognized mother in common. It is
critically important to realize that Jewish law only recognizes the mother
as such because she gave birth to these children; her genetic relationship
with the children has been legally severed by her conversion - as is the
case of any convert who, upon conversion, loses all previously established
genetic relationships.
Given this insistent definition for the purpose of
declaring one a sibling according to Jewish law23 -- that individuals are required to have either a common mother or a common
father (or both) to be siblings -- it would be difficult to establish that
according to Jewish law the relationship between the clonor and the clonee
to be a sibling type of relationship, given the complete absence of a
common parents.
The assertion that all individuals who are genetically
identical are, in fact, legally considered siblings can be readily
disproved. Consider the case of natural identical twins who clone
themselves respectively, producing clones who are identical genetically not
only to themselves but also to the clonor's identical sibling. Surely the
two clonees are not siblings to each other, or to their clonor's identical
brother -- each of which they are genetically identical to! Rather, each
clonee is the child of their respective clonor. Each clonee is the nephew
to the clonor's identical brother and the two clonee are first cousins. The
presence or absence of a "mother" in common reenforces this
sense.
The argument that analogizes cloning of an adult to the
splitting of a fertilized egg appears incorrect.24 It is true that when a fertilized egg divides into two independent embryos,
both of those children (who are identical twins) are considered children of
the couple that fertilized the initial egg -- and not the second egg is a
"child" of the first. However, this type of case is different
precisely because the process of fertilization and division occurs in
utero, such that it is clear who is the mother of these children, and thus
who is the father. To rule that the provider of the initial genetic
material is not the father in a case of cloning -- but rather the father of
the provider of the genetic material is the father -- seems far removed
from logic, as that person is completely uninvolved in the reproductive
process. The one who fertilized the egg, either by providing half the
normal chromosomes in the case of regular fertilization, or all the
chromosomes in the case of cloning, should be considered the parent.
An elaboration of this analysis is needed. The splitting
of a fertilized egg is perhaps the simplest form of cloning, the argument
goes, and just like that case produces sibling relationships and not a
child-parent relationship, so too, a clone from an adult should be
classified as siblings, and not as a child. I believe this analysis is
incorrect. What makes the identical twins siblings in the case of
fertilized eggs, is the definition of siblings discussed above: a common
mother and father. The fact that these children share a uterus and a common
egg, and thus a mother (see Yevamot 97b cited above) inclines one to think
that they also share a father who provided the sperm that imediately
created the first one of them, and thus they are siblings. Clonor and
clonees do not share a mother (egg donor or gene provider) or a father
(provider of genetic material) and thus are not siblings.25
C. Absence of Paternity and Religious Identity
One other possibility worth considering is to discuss
the possibility that there is no familial relationship between the clonor
and the clonee according to Jewish law. Jewish law would consider these
people as categorically unrelated. There is ample precedence in Jewish law
that a mere genetic relationship does not establish a legal relationship in
the eyes of Jewish law.26 Nonetheless,
once there is a clear establishment of maternity on the part of the
gestational mother, as there is in the case of cloning (see above) it seems
logical that the provider of the genetic material has the status of the
other parent, assuming that this parent is a man, thus enabling him to fit
into the category of father. It is illogical to distinguish between a man
who contributes sperm to an in vitro fertilization to be the father
according to Jewish law, and yet consider the one who contributes all the
genetic material not to be the father. In the absence of the genetic
provider being a man, one returns to the discussion about two women
competing to be the mother in the case of surrogacy.27
The question of who is the mother is seminal in
determining the status of the child as to its religious identity. Jewish
law insists that the child of a Jewish mother is Jewish, independent of the
religious identity of the father, and the child of a gentile woman is a
gentile, independent of the religious status of its father. Indeed, in the
case of intermarriage, Jewish law never recognizes valid legally
significant paternity, no matter what the religion of the father is. Were
one to determine that the gestational mother is the mother, Jewish law
would assign the child Jewish identity and would limit paternity to those
cases where the provider of the genetic material -- the clonee -- is also
Jewish. In those circumstances, where the donor of the genetic material is
a Jewish woman, and the gestational mother is a non-Jewish woman, or the
other way around the determination of religious identity would depend on
who one labels the mother. Rabbi J. David Bleich quotes an unpublished
responsum from the late Rabbi Shlomo Zalman Auerbach to the effect that in
those circumstances, the Jewish status of such a child is subject to doubt,
and he or she should be converted.28 (This
doubt is likely to continue even when the clonor is Jewish, and the egg
donor is gentile, as the egg donor's religious identity is also relevant,
at least once one considers the possibility of multiple mothers.)
D. The Artifical Person (Golem) Issue
Unaddressed until this point is the discussion of the
legends about golems, artificial people created by mystical means
according to the Jewish tradition. These stories tell of figures made from
dirt brought to life by reciting one of the names of the Divine or by
placing a piece of parchment with God's name (or the word emet ("truth")) on the forehead. The Talmud (Sanhedrin 65b) recounts:
Rava created a man and sent him to Rav Zera, the rabbi
spoke to him, but he did not answer; Rav Zera exclaimed "you are
artificial: return to dust".... Rav Hanina and Rav Ohaya would sit
every Sabbath eve and study the book of creation and create a calf one
third the size of a full calf, and eat it.
So too, in the last 600 years there have been a number
of accounts of golems created to assist the Jewish community in its
various times of need.29 As Rabbi Chaim
Steinmetz notes "whether or not these legends are fictional is
irrelevant; what we are interested in is how man's ability to artificially
create life is viewed by Jewish thinkers."30
The responsa literature contains a clear discussion of
whether an artificially created person (a golem) is human or not --
may it be killed, does it count in a minyan, can it ritually slaughter and
so on. It is important to recognize that Jewish law prohibited the killing
of a deaf-mute, a lunatic or an infant. Humanness -- being created in the
image of God (tzelem elokim) - is not dependent on intelligence.31 Rather, as the Encyclopedia Talmudit states:
A person who is born from another person - in the womb
of a woman - is prohibited to be killed.
It adds:
One who is created through a mystical process or through
a mixing of divine letters [if that person is killed] the one who kills him
does not violate the prohibition to murder (lo tertzach).32
Yet other halachic authorities focus on the fact that
these artifically created "people" (golems) origins are
non-human, or that it is specifically divinely created, or that is both
specifically divinely created and a deaf-mute.33 Indeed, Rabbi Samuel Adels (Maharsha, commenting on Sanhedrin 65a) could
easily be understood as ruling that a golem that can speak and
appears human, is, in fact, human -- a result that appears very intuitive
to this writer.34 Indeed, support for the
proposition that "humanness" is determined by human function in
cases where apparent definition of humanness -- birth from a human mother
-- does not apply, can be found in an explicit discussion of humanness in
the Jerusalem Talmud (Niddah 3:2). That source states:
Rabbi Yasa states in the name of Rabbi Yochanan:
"if [a creature] has a human body but its face is of an animal, it is
not human; if [a creature] has an animal body, but its is face human, it is
human.
This would indicate that when the simple definition does
not apply, one examines the creature for "human" features.
However, the talmud continues:
Yet suppose it is entirely human, but its face is animal
like, and it is learning Torah? Can one say to it "come and be
slaughtered"? [Rather one cannot]. Or consider if it is entirely
animal like, but its face human, and it is plowing the field [acting like
an animal] do we come and say to it, "come and perform leverite
marriage [yibum] and divorce [chalitza]"? [Rather, one
cannot.]
The talmudic conclusion seems to be simple. When dealing
with a "creature" that does not conform to the simple definition
of humanness -- borne from a human mother -- one examines context to
determine if it is human. Does it study Torah (differential equations would
do fine for this purpose, too) or is it at the pulling end of a plow? By
that measure, a clone, even one fully incubated artificially, would be
human, as it would have human intellectual ability, and human attributes.35
However, it appears to this writer that these stories
about fully artificial people are of no relevance in cases of AIH/D, IVF,
or cloning since the fertilized egg is implanted in the uterus of a woman,
who gives birth to a child, and who is the legal mother. Thus, a clone, no
less than any other "born" child, meets the prima-facia test for
humanness and is to be considered human. Indeed, the definition of
humanness found in the Encyclopedia Talmudit should be enough to
"prove" that a cloned human is human when it is born to a human
mother.
To the extent that the mystical stories have something
to contribute to the approach of Jewish law to this topic -- itself a
matter of significant dispute as noted by Rabbi Samuel Adels, Maharsha,
above -- that discussion will have to wait for the invention of a full
human incubator, thus allowing a child to be born without any implantation
into any human.36
E. Miscellaneous Issues Related to Cloning
A host of miscellaneous issues raised by this analysis
can only be dealt with in a preliminary way. The first is the famous
discussion generated by a series of responsa (teshuvot) by Rabbi
Saul Yisraeli and others as to whether a dead man can legally father a
child according to Jewish law and who owns the genetic material of the dead
person which will subsequently be used to reproduce this person.37 Presumably, those who hold that a dead man
cannot legally reproduce so as to have a paternal relationship or fulfil a
mitzvah, would rule that one whose cells are cloned after death is not the
father according to Jewish law. Those who disagree would seem to disagree
in the case of cloning as well.38
There is little doubt that soon on the horizon there
will be yet another (modified) form of cloning that would permit the taking
of nucleic genetic material from a variety of sources and one needs not
incorporate the genetic material of just one person. How exactly Jewish law
would view the parental, familial, or maternal status of one who has
various pieces of genetic materials from a variety of sources is an issue
which is little addressed. If one accepts the analysis of Rabbi Bleich that
it is plausible for a child to have more than one legal mother or father --
based on the fact that Jewish agricultural laws allows for a plant to have
more than two legal parents -- one would be inclined to view the parents of
those children as the contributors of the genetic material as well as the
gestational mother.39 Presumably those who
disagree with that analysis would argue that the gestational mother is the
"real" mother according to Jewish law. In a case where there is
no gestational mother40 this approach
would argue that there is no mother according to Jewish law, or perhaps
this approach would label the primary donor as the mother or father, or
consider them all doubtful (safek) parents. Indeed, such is exactly
the dilemma in the current cloning technology when the egg/ovum donor is
not the same person as the contributor of the nucleic genetic material, as
that clonee has genetic material from two different sources: nucleic
genetic material from the clonor, and mitochondrial genetic material from
the egg donor.
IV. Is Cloning Permissible, Prohibited, or A Good
Deed
The previous section's analysis was limited to the
ramifications of cloning without any discussion of whether Jewish law views
such conduct as a good deed, a bad deed, or merely a permissible activity.
Five distinctly different categories can be advanced in the area of
reproductive activity.
1. Activity Which Is Obligatory (mitzvah chiuvi).
For example, the requirement for a man to procreate by
having a minimum of two children -- a boy and a girl -- is obligatory
according to Jewish law. At least as a matter of theory, a Jewish law court
can compel one to marry and have children.41
2. Activity which is Commendable, but not Obligatory (mitzvah kiyumi).
For example, various authorities rule that procreation
beyond the obligation to have one boy and one girl is a discretionary
activity which is a mitzvah. According to this approach, such conduct is a
mitzvah, but is not a legally obligatory one.42
3. Activity which is Permissible (mutar).43
For example, Rabbi Moses Feinstein is of the opinion
that for a woman to engage in artificial insemination with sperm other than
her husband's, with her husband's consent, in order that she may have a
child, in a situation in which the sperm donor is a gentile, is
permissible.44
4. Activity which is discouraged but not prohibited (bitul mitzvah).
For example, various Jewish law authorities rule having
many children a discretionary mitzvah (see rule 2, above and note 41) and
deems the decision to stop having children after one has the minimum number
required as a nullification of an optional mitzvah. According to this
approach, one who avoids fulfilling this commandment has forsaken the
opportunity to do a good deed (mitzvah) -- but such conduct is not
definitionally prohibited.
5. Activity which is Prohibited (assur).
For example, an abortion for a reason unacceptable to
Jewish law is prohibited.45
Thus the seminal discussion about cloning in terms of
whether it is halachically permissible focuses on whether the obligation to
be fruitful and multiply or its rabbinic analog has been fulfilled by the
cloning activity. This question seems to be without clear precedent in
Jewish law. One could argue that the definitional activity found in the
obligation to be fruitful and multiple solely involves a man giving genetic
material to produce a child who lives. Such a child is produced in this
case. There is at least one mother (gestational mother) and in most
circumstances there will be a father/second parent. Why then should no mitzvah be fulfilled, or at least a child borne that exempts one from the future
obligation to procreate? On the other hand, one could argue, that the
intrinsic definition of the obligation to be fruitful and multiply or its
rabbinic cognate involves the combination of the genetic materials of a man
and a woman -- whether through a sexual act or in a petri dish -- and
absent the combination of genetic material from a man and a woman, there is
no fulfillment of the obligation to be fruitful and multiply.46 Indeed, this could be implied from the
comments of Nachmanides on Leviticus 18:6, which perhaps makes reference to
other Jewish authorities who maintain that incest is prohibited is because
it eliminates genetic diversity.47
It seems to this author that the first approach seems to
be superior to the second. This is particularly true when the fertilized
egg is implanted in a woman, thus producing a child and a birth-like
process that clearly resembles the natural birth process and motherhood.48 Indeed, even if one where inclined to
argue that there is no fulfillment of the full obligation to procreate
absent fertilization, maybe cloning as a form of reproduction is sufficient
to exempt one from the obligation to procreate again, as for example a
Gentile who converts to Judaism after having children as a Gentile is
exempt from the renewed obligation to procreate as he already had children
before49 (even if these children did not
convert to Judaism with their parents).50
So too, of course it is important to recognize that the
Jewish legal tradition limits the obligation to be fruitful and multiply to
a man, and not to a woman; of course it recognizes that in all
circumstances a woman is a necessary participant in the obligation to be
fruitful and multiply, but yet for a variety of reasons outside the scope
of this paper it is quite clear that the normative Jewish tradition assigns
no obligation upon a woman to be fruitful and multiply.51
Thus, when cloning involves the taking of genetic
materials from a woman and putting it in the egg of another woman, while a
third woman carries the child to term, there is no mitzvah (as none of the
participants are obligated) and the activity itself is neither good nor
bad, although the need to engage in other prohibited activity would be
enough to prohibit this cloning according to Jewish law, as there is no
counterbalancing mitzvah to offset even a small impropriety.52
So far, this article has not yet voiced what might be
any intrinsic halachic grounds to prohibit cloning. Indeed, a review of the
cloning process does not indicate what would be the apparent grounds to
argue that there is a generic blanket prohibition against cloning.53 One would be hard pressed to define the
taking of the cells necessary to genetically reproduce the person as a form
of wounding (chavala) as the cells can be extracted without any
apparent violation of Jewish law. Indeed, in that regard, cloning lacks
many of the serious halachic problems associated with artificial
insemination, in-vitro fertilization, and surrogate motherhood, all of
which have serious halachic issues raised in terms of the fertilization of
the egg by the sperm, and other related issues. Cloning -- precisely
because it does not involve any reproductive technology other than
implantation -- seems to be free of these issues.
However, this analysis does indicate that in the case
where the donor of the genetic material is a woman, the best that one can
categorize this activity as is permissible activity (mutar), as no
mitzvah is fulfilled. Indeed, in a case where the proposed gestational
mother is married, the fact that the clonor is a woman (and fulfilling no
mitzvah) might -- alone -- be enough of a reason to prohibit activity,
since a number of halachic authorities prohibit a married woman from
functioning as a gestational mother for any child other than one whose
father is her husband,54 and a plausible
claim could be made that one should be strict for this approach absent a mitzvah being performed, which is not the case when the clonor is a woman.
Certainly this is true absent permission from the husband.
In sum, I am essentially unaware, at this point in my
investigation, of any substantive violation of Jewish law that
definitionally occurs when one clones cells from one human being into the
egg of another and implants that fertilized egg into a gestational mother.55 Thus in those circumstances where the
clonor is a man such that he fulfills the obligation to be fruitful and
multiply or its rabbinic cognate and he cannot fulfill the obligation
otherwise (including through AID/H or IVF), cloning can be classified as a
good deed (mitzvah kiyumi); in those circumstance where the clonor
is a woman, cloning can be classified as religiously neutral, neither
prohibited nor a mitzvah, simply permissible, depending on the desires of
the parties.56
A. Permission to Clone
The question of property right ownership in one's own
DNA sequence needs to be addressed, as scientifically there is no reason
why a person needs to consent to being cloned. Cells could be extracted
without a person's consent, or even, perhaps at some point, a person could
be DNA sequenced such that one could duplicate their genetic code without
the need for extracting anything from that person's body. It would appear
to this writer that a person's right to physical integrity is sufficiently
well established in Jewish law and tradition that there is no need to
demonstrate that Jewish law would prohibit one from assaulting another to
get cells from their body to clone.57 (However, if that were done -- notwithstanding the violation -- the
resulting child who was cloned would still be a human being, entitled to
all protections granted all people, just like a child conceived through
rape is a human, with no stigma.)
However, the right to control one's own genetic
information absent a physical intrusion is much harder to justify exactly
in the halachic tradition. It would seem to this writer that taking a
person's genetic information through a scan or from cells naturally shed
from a person while they function -- is not much different than taking a
person's literary accomplishments without permission (but with
attribution). The question of whether one can copy another's invention,
book, insight, quote, Torah ruling or genetic code would seem to be the
same issue. The vast majority of halachic authorities accept that Jewish
law has some notion of patent and copyright which prevent one from taking
ideas which another creates, even if nothing is physically taken: however,
where this prohibition precisely comes from and what it is based on differs
significantly from decisors to decisors, and is based on such diverse
concepts as excommunication (cherem), theft, implied conditions,
limited sales, secular law, common commercial practice, and others
commercial law concepts.58
V. The Slippery Slope and the Denigration of Human
Beings
Many have argued that the problems with cloning have
nothing to do with the technical issues relating to cloning, rather it is
the fear that the individuals produced through cloning will not be
considered human by society and will lead to a number of gross violations
of normative [Jewish] laws and ethics, such as the harvesting of organs
from these people, their use for human experimentation, slaves, or other
prohibited activities.59 The correctness
or incorrectness of this assertion of prospective ethical violation of the
clonees rights as humans created in the image of God is difficult to
evaluate in the Jewish tradition. There is no doubt at all that a person
produced through cloning, and born of a mother, is a full human being
according to Jewish law and tradition and is entitled to be treated -- must
be treated -- as such by all who encounter this person. Each person is
created "in the image of God", and must be treated as such.
Indeed, just as identical twins -- two people with identical genetic
"codes" -- are two unique individuals, similar in some
ways, and different in others, are to be treated as two separate unique
humans, so too a human being who was cloned from another human is a
separate and unique person, fully entitled to be treated as a unique human.
This author is hard pressed to find any rational
halachic argument that could justify the categorization of a person
produced through cloning as not human. Indeed, an examination of the
rationales for explaining why a golem is not human (see note 55)
indicates that the absence of a human parent does not necessarily make one
non-human -- and cloning clearly has a mother, at the least. Even those
halachic authorities who insist that absent a sexual act, no mitzvah is
fulfilled, in situations such as IVF, have given not a scintillas worth of
indication that the individuals produced through such processes are not
human.
Some fear that that society will mislabel such
individuals as something other than human, and engage in activities
tantamount to murder or enslavement, by treating these individuals as organ
sources, or as individuals to be experimented upon, or as forced labor. One
could imagine a rabbinic authority, aware of the possibility of ethical
lapses in our society, arguing that as a temporary measure based on the
exigencies of the times that cloning should not be engaged in until such
time as the appropriate educational activity can be embarked on to teach
people that clones are human beings entitled to be treated with full and
complete human dignity.60 However, this
type of prophylactic rule which argues that permitted activity should be
prohibited in light of the ethical failures of the times is not the same as
asserting as a normative rule of halacha that such conduct is prohibited.
Rather it is a temporary measure to prohibit that which is intrinsically
permissible.61
The same is true about arguments against cloning grounded in efficiency.
Some have argued that halacha should prohibit cloning because so much human
reproductive material has to be expended to produce a single clone.62 Whatever the merit of this argument, it is
likely the march of scientific progress will vastly reduce the inefficacy
of this process. More significantly, normative halacha does not view the
death of pre-embryos in the process of attempted implantation as violative
of halacha. That is exactly what embryos are to be used for.63
It could be argued that cloning should be prohibited
based on the various talmudic dicta that seem to praise the importance of
genetic diversity.64 This, however, seems
to paint with too broad a brush. It is clear that the Jewish tradition
views the natural process of reproduction as the ideal, for a variety of
reasons, including that it allows for genetic diversity, with all other
methods to be used only when normal reproduction is unavailable. Cloning,
thus for a variety of reasons, falls far short of the ideal. However, to
claim that a single case of cloning as an alternative to infertility should
be prohibited based on this analysis is no more persuasive than to claim
that halacha should forbid artificial insemination or IVF since it is less
than ideal. The correct response should be that these less than ideal
method should be used in circumstances where the ideal method does not or
cannot work. The talmudic dictum about genetic diversity stand for the
proposition that wholesale cloning should be discouraged, and nothing more.
More generally, halacha denies the authority of the post
talmudic rabbis to make prophylactic decrees permanently prohibiting that
which is permissible on these types of grounds. This is even more so true
when such a decree (takana) would permanently prohibit an activity
which is, in some circumstances, the only way a person can fulfil the
obligation to reproduce and could in a variety of circumstances have
overtly positive results.
The Jewish tradition would not look askance on the use
of cloning to produce individuals because these reproduced individuals can
be of specific assistance to others in need of help. Consider the case of
an individual dying of leukemia in need of a bone transplant who agrees to
clone himself with the hopes of producing another like him or her who, in
suitable time, can be used to donate bone marrow and save the life of
another (and even more so, the clonor). The simple fact is that Jewish law
and tradition views the donation of bone marrow at the very least as a
morally commendable activity, and perhaps even morally obligatory such that
one could compel it even from a child.65 Jewish law sees nothing wrong with the having of children for a
multiplicity of motives other than one's desire to "be fruitful and
multiply." Indeed, the Jewish tradition recognizes that people have
children to help them take care of themselves in their old age, and accepts
that as a valid motive.66 It recognizes a
variety of motives why people have children; there is no reason to assert
that one who has a child because this child will save the life of another
is doing anything other than two good deeds -- having a child and saving
the life of another.67 The same thing is
true for a couple who conceives a child with the hopes that the child will
be a bone marrow match for their daughter who is dying of leukemia, and is
in need of bone marrow from a relative. While the popular press condemns
this conduct as improper, the Jewish tradition would be quite resolute in
labeling this activity as completely morally appropriate. Having a child is
a wonderful blessed activity; having the child to save the life of another
child is an even more blessed activity. Such conduct should be encouraged
rather than discouraged.
This writer suspects that to the extent that human
cloning does become an available medical procedure, it will be for the
treatment of profound infertility, such as in the case of a soldier who was
fully castrated after stepping on a land mine, and not for any of the more
controversial purposes. Just like there was great concern over how
frequently and for what purposes artificial insemination would be used, and
after 20 years of data we see that it is used nearly exclusively to treat
infertility, I suspect that such will be the case here, too. This vastly
diminishes the public policy issues associated with cloning.
V. Conclusion
In sum, one is inclined to state that halacha views
cloning as far far less than the ideal way to reproduce people; however,
when no other method is available it would appear that Jewish law accepts
that having children through cloning is perhaps a mitzvah in a number of
circumstances and is morally neutral in a number of other circumstances.
Clones, of course, are full human, and are to be treated with the fully
dignity of any human being. Clones are not robots, slaves, or semi-humans,
and any attempt to classify them as such must be vigorously combated.
In addition it would appear that the relationship
between the male clonor and the clonee is that of father and child and the
relationship between the gestational mother and the child that she bears is
one of mother and child.68 Where the
clonor is a woman, there is a natural tension between her status as a
mother and the status of the gestational mother as a mother.69 While this writer is inclined to think
that the gestational mother is the "real mother" according to
Jewish law, there is some halachic discussion that argues that the
gestational mother is not the real mother, and the genetic mother is, thus
making the clonor the mother. In addition there is the extremely thoughtful
opinion by Rabbi Bleich arguing that both can be the mother. Certainly the
woman clonor is to be considered, at the very least, a possible mother (a safek mother) such that it would be prohibited for the clonee to have a sexual
relationship with any of the members of the family of the genetic donor as
well as the surrogate mother.70
There is a natural tendency to prohibit that which is
unknown, and that tendency is itself a morally commendable virtue lest one
engage in activity which is prohibited as its consequences are not
understood. However, prohibiting that which one does not understand is a
regrettable state of affairs. The Jewish tradition imposes a duty on those
capable to resolve such matters to do so. This preliminary analysis is
submitted in the hopes that others will comment and critique it and Jewish
law will develop an established policy concerning a variety of issues
relating to cloning.71
Postscript
The words of Rabbi Judah Luria [sic - Loew] (Maharal from Prague) speaks eloquently about the power of human creativity to
reshape the universe, and how that power was given to humanity at the
time of creation. He states:
The creativity of people is greater than nature. When
God created in the six days of creation the laws of nature, the simple and
complex, and finished creating the world, there remained additional power
to create anew, just like people can create new animal species through
inter-species breeding .... People bring to fruition things that are not
found in nature; nonetheless, since these are activities that occur through
nature, it is as if it entered the world to be created.....72
Maharal's point is that human creativity is part
of the creation of the world, and this creativity changes the world, which
is proper. The fulfillment of the Biblical mandate to conquer the earth (vekivshuha),73 is understood in the Jewish tradition as
permitting people to modify -- conquer -- nature to make it more amenable
to its inhabitants, people. Cloning is but one example of that conquest,
which when used to advance humanity, is without theological problem in the
Jewish tradition.
Footnotes
Director of the Beth Din of
America. Senior Lecturer in Law at Emory University School of Law (on leave
Fall, 1997) and Rabbi of the Young Israel of Toco Hills, Atlanta.
A discussion of the status of
individuals produced by cloning in relationship to other members of their
"family" is vital in Jewish law whether cloning is permissible,
prohibited, or morally neutral. Is a clonee a legal child of the clonor? Is
the clonee the legal sibling of the clonor? Is the clonee human? All of
these status determinations have nothing to do with the question of whether
such conduct is prohibited or permissible or even a good deed which
fulfills religious obligation. In every Jewish law discussion, it is not
sufficient to address whether such conduct is permitted, prohibited,
discouraged, encouraged or neutral, one must discuss the results of such
conduct in all circumstances, even if a violation of the law entails.
Indeed, status determinations are unrelated to a violation of Jewish law.
Thus, one classified as a lunatic (shoteh) who has sexual relations
with a sibling who is also a legal lunatic, produces a child who is a mamzer,
even as there is no sin.
See Rambam, Mamrim, 2:1-9.
Because of the nature of the
Jewish law discourse, section III and IV appear to be in reverse order, as
it would appear more logical to discuss permissibility before consequences.
However, since in Jewish law the permissibility of any activity is
frequently dependent on the consequences, this order is adopted.
See e.g. Mona S. Amer, Breaking
the Mold: Human Embryo Cloning and its Implications for a Right to
Individuality, UCLA L. Rev. 43:1659 (1996).
"Clone Mammals ... Clone
Man," Nature 13 March 1997 at page 119. This is not cloning in
the common use of the term, but, in fact, is a form of neo-cloning.
Both the nucleic and the
non-nucleic DNA are the same.
Such identical twins can be
artificially induced by blastomere separation. The propriety of such
separations, while widely debated in the popular press would seem not
controversial in Jewish law, if done for the sake of procreation and as a
"last" alternative when other egg sources are not available.
This is not the same as asserting
that the gestational mother has no impact on the development of the child.
Without a doubt the gestational mother has a significant impact on the
development of the fetus through her hormonal releases and other
environmental factors through the placenta.
This is not quite true when the
genes are implanted in the egg of another, as the non-nucleic DNA would be
different.
This issue is discussed at
great length in my "The Establishment of Maternity and Paternity in
Jewish and American Law," National Jewish Law Review III:117-152 (1988).
An extraordinarily thoughtful and detailed study of how
the various assisted reproductive methods are viewed by both Jewish and
American law is forthcoming by Dr. Chaim Povarsky of Touro Law Center
entitled "Regulating Advanced Reproductive Technologies: A Comparative
Analysis of Jewish and American Law." This manuscript surveys many of
the issues that are preliminary steps towards a discussion of cloning, such
as AIH/D, IVF, surrogacy and other assisted reproductive techniques.
See my "The Establishment
of Maternity and Paternity in Jewish and American Law," National
Jewish Law Review III:117-152 (1988).
Rabbi J. David Bleich, "In
Vitro Fertilization: Questions of Maternal Identity and Conversion" Tradition 25:4 summer 1991 82-102, at pages 86-88.
See Rabbi Ezra Bick, "Ovum
Donations: A Rabbinic Conception of Maternity" Tradition 28(1)
Fall 1993 and page 28-45. Rabbi Bleich responded in "Material Identity
Revisited," Tradition 28(2) page 52-56, Winter 1994. See also Nishmat
Avraham EH 22:2 at 186 in appendix volume.
See e.g. Tzitz Eliezer 15:45.
This is analogous to the sexual
relationship between a Jew and a non-Jew which Jewish law maintains
produces no legal relationship between the father and the child. Whether
the father be Jewish and the mother not, or the reverse, the Jewish legal
tradition denies paternity can be halachically established in such cases.
Rabbi Yitzchok Breitowitz,
"Halakhic Approaches to the Resolution of Disputes Concerning the
Disposition of PreEmbryos", Tradition 31:(1)64-92 (1996) at
page at pages 65- 66. In fact, there are five techniques to assist in
reproduction. They are; (1) in vitro fertilization (IVF); (2) gamete
intrafallopian transfer (GIFT); (3) intrauterine insemination (IUI); (4)
zygote intrafallopian transfer (ZIFT); and (5) intracytoplasmic sperm
injection (ICSI). From a halachic perspective, if IVF fulfills the mitzvah
of being fruitful or its rabbinic cognate and establishes paternity, then
all the remaining ones also logically must, as IVF involves the most
activity outside the human body, in that fertilization occurs in a petri
dish.
This stands in sharp contrast
to the approach of canon (Catholic) law, which is succinctly stated by the
well known Catholic theologian, John Cardinal O'Connor of New York. He
writes:
Is cloning human beings morally permissible?
Categorically no.... I offer three, not exhaustive, basic reasons for my
belief:
Cloning is a drastic invasion of human parenthood. By
design, a clone technically has no human parents, hence creating a clone
violates the dignity of human procreation, the conjugal union (marriage)
and the right to be conceived and born within and from marriage. A clone is
a product made, not a person begotten.
The Scottish cloned sheep, Dolly, came into being on the
300th attempt. The first 299 attempts essentially fell apart. Switch to
human beings....How many human beings will be destroyed before whose ideal
is achieved? Who does the cloning? Who owns the clones? Are they to be
marketed? Is the idea of clone-slaves, or clones created to meet particular
needs of warfare, ridiculous? I think not....
Cloning will never be a poor people's campaign. Could it
become an entitlement requiring public subsidy? Of itself it cures no
pathology. Thus we are not doctoring the patient but the race.
Will Cloning Beget Disaster?, The Wall Street Journal,
Friday, May 2, 1997 (1997 WL-WSJ 2419168).
The mitzvah of peru-urevu,
or its rabbinic analog, lashevet. The argument, advanced by many, is
that lashevet is fulfilled even when peru urevu is not, as lashevet is a result oriented mitzvah, as peru urevu is an action oriented
mitzvah with a specific process.
See Rabbi Aharon
Soloveitchik, Test Tube Babies, 29 Ohr Ha'Mizrach 128 (1980).
See Rabbi Bleich, supra note
12.
See Encyclopedia Talmudit, Av 1:5-18 and Am 2:21-26.
Shulchan Aruch Even Haezer
15:10.
Fertilized eggs have been
split, producing induced identical twins; see note 4.
This is a significant issue in
Jewish law, as it has ramifications as to whether the production of clones
is a fulfillment of the mitzvah of "to be fruitful and multiply,"
and whether a clone can marry a natural daughter of the clonee.
Indeed the concluding paragraph
in Part III:B discussing clones of identical twins makes this clear.
Consider the case of the egg of
a Jewish woman fertilized by the sperm of a non-Jewish man and then
implanted into the uterus of a Jewish woman. Without doubt, Jewish law
would assign paternity to nobody and the question of maternity within the
categorization of surrogate motherhood described in Section III. The fact
that there is no father cognizable according to Jewish law would affect in
no way, shape or form the Jewish law disagreement between the two women as
to who the mother is.
Lechumra; Bleich, supra
note 12, at page 93-95 and note 43 at page 102.
For more on golems in
the Jewish tradition, see Moshe Idel, Golem: Jewish Magical and Mystical
Traditions on the Artificial Anthropoid at 213-232.
Chaim Steinmetz, "Creating
New Species" Unpublished ms. My thanks to Rabbi Steinmetz for sharing
his article with me.
For an elaboration on this, see
Eleazar Fleckeles, Teshuvot Me'Ahava 53 who discusses whether a
significantly deformed child is human, and concludes that it is obvious
that the child is. For a tentative contrary assertion, see Ya'akov Hagiz,
Halakhot Ketanot 37-38 which is responded to in Israel Meir Kagen, Mishnah
Berurah 329 s.v. ela.
Encyclopedia Talmudit Adam 1:165. See also Chacham Tzvi 94. Shelat Yavetz 2:82 quotes others who
compare such a creature to an animal -- it is alive, but not human.
Compare Darchei Teshuva on YD
6:11, Maharsha, Sanhedrin 65a, Sidrai Taharot, Ohalot page 5a, Tzafnat
Paneach 2:7.
For more on this, see Azriel
Rosenfeld "Human Identity: Halakhic Issues" Tradition 16:3 197 at
page 58.
This might however, indicate
that a fully incapacitated clone might not be human. See Rabbi Moshe
Hershler, "Genetics and Test Tube Babies" Halacha uRefuah 4:90-95 (5745).
There seems to be a talmudic discussion about mermaids,
and whether they are human or kosher in Bechorot 8a, where Rashi (s.v. benai
yama), who has a slightly different text in the gemera from our text,
states that the Talmud is referring to "fish in the sea who have half
human and half fish features, called "sirens" in old
French." Rashi seems to claim that these mermaids can be impregnated
by humans. Rabbi Daniel Eidensohn writes to this author that "the
legends of mermaids were common in Rashi's time in the Legends of
Charlemagne. They were also discussed by Plato. There is also a principle
that 'whatever is found on land there is a corresponding creature in the
sea except the chulda (weasel); Chulin 127a, Yerushalmi Shabbat
14a." Both the tosefta and the talmud, in the versions we have, seem
to understand the discussion as being about how long dolphins carry their
young to term, with no reference to mermaids, pseudo-humans, or
inter-species pregnancies. If Rashi's version is the proper one, one could
claim from the talmud that mermaids are not classified as human, but rather
as not kosher fish. A further investigation of mythology and mermaids would
be needed to determine whether this has any relevance.
So too, there seems to be a mishnaic discussion of the
humanness of orangutans (in Hebrew, adnei hasadeh) in Kilayim 8:5.
Both Teferet Yisrael and Rambam appear to grant these creatures human
status with regard to certain issues. This is seconded by the famous
remarks of Akiva Eiger concerning gorillas, where he indicates genuine
doubt as to whether such animals are human or not; see Glosses of R. Akiva
Eiger on Yoreh Deah 2 s.v. kof.
A fairly clear proof that the golems were not considered human is the fact that they were destroyed in the golem tales without any thought, when their function was finished; in that sense
they were not considered human, were not governed by Jewish law, and could
be treated as inanimate objects.
See Breitowitz, supra note 16,
at pages 69-80.
For more on this, see
Breitowitz, ibid.
See Rabbi Bleich, supra note
12, at pages 93-95.
Such is currently science
fiction and not fact.
Shulchan Aruch EH 1:3. While
this is no longer done, and has not been done for 500 years (see Ramo
commenting on id.), the rationale for not engaging in compulsion
relating to the obligation to be fruitful and multiply has nothing to do
with the fact that this obligation is not as a matter of theory compellable
in Jewish law.
Thus, according to this
approach, a person who has already fulfilled the obligation to be fruitful
and multiply and is not married is under no obligation to remarry one who
can have more children, although such conduct is a discretionary mitzvah and should be done when possible. This explains the rulings of Mechaber and
Ramo, Even Haezer 1:8, both of whom permit marrying a woman who cannot have
children in a variety of situation, including, Ramo writes, to avoid
disputes. Certainly, Ramo would not permit one to avoid having the minimum
required number of children to avoid confrontation; see comments of Gra on
EH 1:22 who notes this. For a contrary view, see Rambam, Ishut 15:16. For a
lengthy discussion of this, see Rabbi Yehuda Henkin, Benai Banim 1:31 and 2:38.
This discussion does not address issues related to
methods of contraception, which is a completely different topic. However,
marriage to one unable to have children -- a method of contraceptive at
some level -- is permitted in certain circumstances after one has the
fulfilled the mitzvah chiuvi.
This is not to be confused with
a reproductive technology that has some aspects of prohibition (issur)
and some aspects of prescription (mitzvah) such as artificial
insemination of the husband's sperm. That type of activity involves a
balance of whether the aspect which is proscribed is outweighed by the
fulfillment of the mitzvah which is prescribed.
Consider AIH or IVF/H. Since the vast majority of
halachic authorities accept that one does fulfill the obligation to be
fruitful and multiply by having children through artificial insemination,
and also accept that, at the very least, artificial insemination is a
breach of the rules of modesty found in the Jewish tradition and perhaps
much more, the halachic discussion of artificial insemination of the
husband's sperm entails whether in toto the balance between the violation
on one hand of the rules of modesty and perhaps the prohibition of
masturbation is outweighed by the fulfillment of the mitzvah to be fruitful
and multiply. As noted above, most halachic authorities are in favor of
engaging in such artificial insemination with the husband's sperm. Not
surprisingly, those who think that the husband fulfills no mitzvah when
producing children other than through sexual relations, are also of the
opinion that such conduct is morally prohibited because the ethical balance
-- the halachic balance -- is skewered in favor of prohibition since no
mitzvah is fulfilled.
Iggerot Moshe Even Haezer 1:10,
71; Even Haezer 2:11; Even Haezer 3:11. Many argue with this
approach, and this is not the place for a discussion of this issue, which
is cited merely as an example of such conduct. For a detailed discussion of
this issue, and a review of the various approaches, see the two articles
cited in note 9.
"Abortion in Halakhic
Literature", Rabbi J. David Bleich, Contemporary Halakhic Problems 1:325-371.
One could, in addition, argue
that to fulfill the mitzvah of peru-urevu or lashevet, one
must engage in a sexual act, and absent a sexual act, no mitzvah is
fulfilled. However, as noted above in section IV, that approach has been
rejected by most decisors, and is no more (and no less) coherent in the
case of cloning as it is in the case of IVF.
See Ramban on Leviticus 18:6,
and the notes written by Rabbi Bernard Chavel who quotes an authority who
adopts this view. In the general issue of using Nachmanides' commentary on
the Bible to frame these issues, see Dibbrot Moshe, supra note ?.
Whether Jewish law would view
this case differently in a circumstance in which a child is fully cloned
and went from petri dish to incubator to feeding tube without even being
implanted in the body of another seems to me to be a vastly more complex
question, perhaps indicating that in circumstances in which their is no
mother and there is no father, there can be no fulfillment of the
obligation to be fruitful and multiply.
Shulchan Aruch Even Haezer 1:7.
As explained in Biur Hativ 1:11, the converted Gentile in this case
is exempt from the obligation to be fruitful and multiply, even though he
has not -- according to Jewish law -- yet fulfilled this obligation at all.
Rather, because he has children who are "called after his name,"
he is exempt from fulfilling the obligation to procreate. A clone could be
such a case exactly. Producing a clone could be a sufficient fulfillment of
the obligation to procreate that -- even though one has not actually
fulfilled the mitzvah -- one has exempted oneself from ever having to
fulfill the obligation. (Such a logic was first suggested to me by Rabbi J.
David Bleich.)
This is a dispute; compare Chelkat
Mechoket, Taz, and Beit Shmuel commenting on Even Haezer
1:7.
Shulchan Aruch EH 1:13. It
would appear to this writer that this line of reasoning provides an
argument that the Jewish tradition does not insist on the combination of
genetic material from two people -- with each side providing half the
genetic material as a sin-quo-non for fulfilling the mitzvah to reproduce
-- as the mitzvah is only obligatory on one of the two parties; the woman's
contribution is necessary, but not a mitzvah. Consider the science fiction
case of what would happen if a drug were developed that permitted a sperm
cell to self replicate to the diploid number thus giving it a full
component of 46 chromosomes, and that sperm cell was capable of replicating
in a way that allowed it to fertilize an egg naturally. Would there be any
doubt that the man that produced that sperm, and fathered a child (which is
not a clone at all) has fulfilled the mitzvah of peru-urevu?
Let me rephrase. It is markedly
easier to argue that any conduct is prohibited according to Jewish law in
cases where the scale which weighs its positive and negative components
clearly contains nothing on the positive side of the scale.
By the term "generic
prohibition," I mean an activity that definitionally violates Jewish
law, such as the prohibition to kill, or the prohibition to waste seed, or
the prohibition of adultery, or other specific prohibitions.
See Rabbi Yaakov Breish, Chelkat
Yaakov 3:45-48. Similarly, see Rabbi Yecheil Yaakov Weinberg, Sredai
Eish 3:5.
One writer recently suggested
that there was a problem with killing the nuclear material in the
unfertilized egg, as this is a type of abortion. This seems to be mistaken,
as the egg/ovum is removed from the egg donor prior to fertilization. As
ably demonstrated by Rabbi Breitowitz, there might be serious halachic
problems associated with destroying eggs after they are fertilized, but not
before they are fertilized; Rabbi Breitowitz, supra note 16, at page 67.
The fact that this activity is
a mitzvah if the genetic donor -- the clonor -- is a man, does not indicate
that such cloning must or should be done according to Jewish law. There is
a wealth of literature indicting that a man is under no religious duty to
engage in any reproductive technique other than that found in the course of
normal marital relations. Just like artificial insemination, even by the
husband's sperm, is not halachically obligatory, so too cloning would
certainly not be obligatory in the Jewish tradition. The most that could be
said about it is that cloning is encouraged in the Jewish tradition when it
is the only way for a man to reproduce. This is quite a bit different than
the obligation to procreate through marital relations with one's spouse
which is a duty -- an obligation according to Jewish law.
See Shulchan Aruch, Choshen
Mishpat 420:1-3.
For a survey of these issues in
the context of patenting a non-human life form, see Arie P. Katz, Patentability
of Living within Traditional Jewish Law: Is the Harvard Mouse Kosher?,
21 AIPLA Q.J. 117 (1993) which reviews many different theories of Jewish
patent and copyright law while discussing patently life forms.
Indeed, consider the case of a
woman who suggested conceiving a child -- in order to abort it and obtain
fetal-brain tissue to help treat her father, ill with Parkinson's disease.
It has been reported to this
writer that such is the position of Rabbi Lau, the current chief rabbi of
Israel, although I have been unable to verify these reports. News reports
state that "Israeli Chief Rabbi Meir Lau said the cloning of living
creatures is prohibited by Jewish religious law. 'The use of genetic
engineering to create life is totally prohibited,' the rabbi said during a
conference at Tel Aviv's Bar-Ilan University." See AFP-Extel News
Limited, AFX News March 5, 1997. However, subsequent reports indicate that
the "Chief Rabbinate doesn't reject genetic engineering in principle,
but limits must be set, Chief Rabbis Eliahu Bakshi-Doron and Yisrael Lau
told the Knesset Science and Technology Committee at Hechal Shlomo on
Monday;" Jerusalem Post, April 2, 1997, Pg. 3 "News in
Brief."
Ho'rat sha, le-esur davar
mutar.
A recent article reported:
Rabbi Moshe Tendler, professor of medical ethics,
talmudic law and biology at Yeshiva University in New York, sees other
potential good use for human cloning. In theory, the Orthodox scholar might
permit cloned children when a husband cannot produce sperm. But he believes
that the danger of abusing the science is too great to allow its use. As a
Jew, he lives in the historical shadow of the Nazi eugenics program, in
which people with `undesirable' traits were weeded out of society,
forbidden to have children and ultimately killed...."The Talmud says
that man has to learn to sometimes say to the bee, `Neither your honey nor
your sting.' Are we good enough to handle this good technology? Of course
we are, if we can set limits on it. And when we can train a generation of
children not to murder or steal, we can prepare them not to use this
technology to the detriment of mankind."
"Cloning," Pittsburgh Post Gazette March 1,
1997 at A1.
Robert Langreth, "Cloning
Has Fascinating, Disturbing Potential" The Wall Street Journal,
Monday, February 24, 1997 states that:
in producing the first clone of an adult mammal,
researchers plied a seemingly simple technique to achieve what many thought
to be impossible. Here's how it worked:
-- Researchers took mammary-gland cells culled from an
adult sheep, put them into a test tube and forced the cells into an
inactive state by limiting their intake of nutrients.
-- Next, they took unfertilized eggs from female sheep
and mechanically removed the DNA-containing nucleus from each egg.
-- They then used standard lab techniques to insert 277
of the adult DNA cells into 277 eggs.
-- Of these fused egg cells, only 29 survived for a few
days and were surgically implanted into the wombs of 13 ewes.
-- One of the 13 sheep became pregnant and gave birth to
a lamb that was an exact genetic replica of the adult donor, carrying none
of the mother's genes.
The argument is that 276 fertilized eggs were wasted in
the process of producing one live birth.
See Rabbi Breitowitz, supra
note 16 at pages 69-70.
See Sanhedrin 38a and Berachot
58a. Maharal also indicates that genetic diversity is part of the divine
plan; see Derech Chaim 4 at page 204 and sources cited in note 46
See Compelling Tissue
Donations, Rabbi J. David Bleich, Tradition 27:4, 59-89 (1993). The
rationale for this being that such donations (which are not really
donations according to Jewish law, as they can be compelled) are neither
statistically harmful nor particularly painful, and thus one who engages in
this activity fulfills the biblical obligation not to stand by while their
neighbors' blood is shed. This activity is compulsory activity in the same
way one must jump into the water to save one who is drowning, if one knows
how to swim and such activity poses no danger.
B'eyna hutra l'yada; see
Yevamot 64a; Shulchan Aruch EH 154:6-7and Aruch HaShulchan EH 154:52-53.
The birth of the child itself
is a fulfillment of the mitzvah to be fruitful and multiply, and the
donation by the child of bone marrow or blood or other replenishable body
serums that can save the life of another -- particularly of a parent -- is
a second good deed.
The status of the egg/ovum
donor is uncertain in this case, and perhaps would depend on how
significant the contribution of mitochondrial DNA is in the development of
a person. One could analogize the egg donor to the gestational mother,
although most of the indica of motherhood incline one not to do that. The
most fluent analogy would be to the genetic donor (the clonor), but the
open scientific question remains as to whether the egg/ovum donor is
contributing something significant or not. If the scientific data indicates
that the mitochondrial DNA is significant, then logic would analogize the
egg donor to the clonor.
And the status of the egg/ovum
donor as mother; see note 67.
And the egg donor as well, if
it turns out that mitochondrial DNA is significant. Absent clarity as to
the facts, a stricter policy concerning incestuous matters would be better.
Shulchan Aruch Yoreh Deah
242:14.
Rabbi Moshe Feinstein, in his insightful responsa (teshuvot)
addressing artificial insemination suggests that as a failsafe mechanism --
so as to accommodate the concerns of others who understand the halacha
differently than he, and not to create illegitimacy even according to some
authorities -- semen from gentiles may be used for the insemination, as
that will reduce the possibility of mamzerut to zero, as the child
of a married Jewish women and a Gentile is legitimate. He writes this even
though he personally is quite convinced that no such mamzerut problem
arises even with Jewish sperm; See Rabbi Moshe Feinstein, Igrot
Moshe, Even Haezer 1: 10, 71; Even Haezer 2:11; Even
Haezer 3:11. For another vigorous defense of his position, see also
Rabbi Moshe Feinstein, Dibrot Moshe, Ketubot 233-48. Such a
policy -- of halachic risk reduction given uncertainty -- is a wise one,
and is worthy of imitation in these circumstances as well. Consistent with
this approach, I would suggest three such safeguards which ought to be
followed:
(1) In circumstances where a man wishes to clone
himself, it would be preferable if his wife carried the child to term. If
she cannot carry the child to term, the gestational mother should be either
an unmarried Jewish women, or a gentile, in that order. In the later case,
a conversion, either maikar hadin or mesafek, depending on
who one considered the "real" mother, would be needed, and the
"mitzvah-ness" of the activity would be vastly diminished. In
this regard cloning is better than AIH, in that there is no problem of hashchatat
zera, perhaps permitting this conduct even when the child is born a
Gentile.
(2) In cases where a woman wishes to clone herself,
ideally her eggs would be used and she would carry the child to term
producing a "full" clone. If she cannot provide the eggs, it is
preferable that she carry the child to term. If that is not possible, her
eggs should be used, and the gestational mother should be either a gentile
or an unmarried Jewish women in that order. In the later case, a
conversion, either maikar hadin or mesafek depending on who
one considered the "real" mother would be needed; since there no
mitzvah anyway, strong claim can be made that it is better to resolve the
certainty of parenthood -- through conversion -- than creating a situation
where there are many possible parents, lest one marry one's relatives. Thus
the order of the last clause is reverse.
(3) In circumstances where a person wishing to clone
themselves are not Jewish, Jews should avoid being either the gestational
mother or the egg/ovum donor, so as to avoid providing a debatable Jewish
identity to one who will not be raised Jewish.
Rabbi Judah Luria of Prague (Maharal
Me-Prague), Bu'ir Hagolah pages 38-39 (Jerusalem 5731). He continues:
There are those who are aghast of the interbreeding of
two species. Certainly, this is contrary to Torah which God gave the Jews,
which prohibits inter-species mixing. Nonetheless, Adam (the First Person)
did this. Indeed, the world was created with many species that are
prohibited to be eaten. Inter-species breeding was not prohibited because
of prohibited sexuality or immoraility ... Rather it is because [Jews]
should not combine the various species together, as this is the way of
Torah. As we already noted, the ways of the Torah, and the [permissible]
ways of the world are distinct .... Just like the donkey has within it to
be created [but was not created by God] ... but was left to people to
create it
Even those forms of creativity which Jewish law
prohibits for Jews, is not definitionally bad. Some are simply prohibited
to Jews. My thanks to Rabbi Yitzchok Adlerstein of Los Angeles for this
reference.
Bereshit 1:26. Lord Immanuel
Jakobovits stated:
We can dismiss the common argument of "playing
God" or "interfering with divine providence" [in reference
to cloning]. Every medical intervention represents such interference. In
the Jewish tradition this is expressly sanctioned in the biblical words:
"And he [an attacker] shall surely cause him [his victim] to be
healed" (Exodus 21:19). The Talmud states: "From here we see that
the physician is given permission to heal." But such
"interference" is permitted only for therapy, not for eugenics --
for correcting nature, not for improving it.
Will Cloning Beget Disaster?, The Wall Street Journal,
Friday, May 2, 1997 (1997 WL-WSJ 2419168).
Sources: Jewish Law |