Pro-natal, Par Excellence

Fascinating insights into the cultural, religious and political background to Israel's enthusiastic harnessing of technology to create babies

"Reproducing Jews: A Cultural Account of Assisted Conception in Israel," by Susan Martha Kahn, Duke University Press, 227 pages, $17.95

Social anthropologist Susan Martha Kahn begins her book, "Reproducing Jews," by noting that Israel boasts more fertility clinics per capita than any other country in the world, and also has the world's highest per-capita rate of in-vitro fertilization (IVF) procedures.

Her ethnographic study provides fascinating insights into the cultural, religious and political background to Israel's enthusiastic harnessing of technology to create babies. In the process, she shows how this technology - IVF, artificial insemination, egg donation and surrogacy - has been the nexus of some of the most sensitive issues of Israeli life: from the "Who is a Jew" question, to the tension between the country's halakhic (Jewish religious law) and secular legal impulses. And Kahn shows how the new technologies affect concepts of family continuity for both the secular and religious sectors of the population.

Kahn, senior research director at the Hadassah International Research Institute on Jewish Women at Brandeis University, extensively interviewed some 35 women who had undergone, or were undergoing, fertility treatment between 1994 and 1996 in Israel. She spent considerable time at a fertility clinic as an observer, interviewing medical personnel and religious supervisors (mashgihot). She also discussed the issues these technologies raise with respect to rabbinic authorities.

Although aimed at an academic audience, Kahn's study is concisely and clearly written, mercifully light on the sort of academic terminology that often deflects lay readers.

Halakhic complexities

The author starts by noting the multiplicity of factors that have led policy-makers to mold Israel into a pro-natal country par excellence. These factors include the belief held by rabbis that children born to unmarried women are considered legitimate and full Jews; the common perception among both religious and secular Jews in Israel that it is worse to be childless than to be a single mother; the social and financial support the country gives to single-parent families; and - least discussed but certainly not the least important - the fear that the Jews will be vastly outnumbered by Arabs as reflected in demographic trends (although Israeli Arabs also benefit from the country's pro-natal proclivities).

Kahn devotes the first portion of her book to unmarried women who have chosen the route of artificial insemination. It is interesting that although almost all of the women she interviewed were secular, many of them couched their decision in ethical terms, not solely practical ones. They viewed artificial insemination as "more honest" than sleeping with a man to "steal his sperm" by becoming pregnant without telling him. One interviewee summed up artificial insemination as meaning "no lying to the child, no lying to a man."

Kahn details the issues faced by the Aloni Commission, which, in 1994, set out the recommendations which form the basis of regulations on assisted conception in Israel, and laid out the principle which infuses much of Israeli legislation on the subject: Unmarried women should have the same access to reproductive technology as married women. Kahn goes on to point out the few instances where regulations have diverged from this principle.

She then bravely sets out to tackle the complex and convoluted halakhic discussions that have surrounded the issue of assisted reproduction. As a secularist largely unfamiliar with these debates, I found this part of the book fascinating because she presents the pilpul (rabbinic discussion of minutiae) - itself highly interesting - through an anthropologist's lens. Thus, she sheds light on the implications of these Orthodox arguments on Jewish concepts of family, legitimate membership in the Jewish "tribe," and halakhic priorities.

In terms of artificial insemination for unmarried women, Kahn explains, "The absence of a clear halakhic prohibition makes a coherent Orthodox rabbinic response somewhat elusive." She explains that a mamzer (bastard) can only be conceived in incestuous or adulterous unions and that only married Jewish women can commit adultery according to Jewish law. Although many Orthodox rabbis are reluctant to sanction artificial insemination for unmarried women because of the threat this poses to the centrality of the traditional Jewish family, virtually none of them contest that children born through artificial insemination to unmarried Jewish women are full-fledged - and marriagable - Jews.

But the Orthodox establishment has busied itself with a myriad of related issues. How should sperm be collected for insemination without violating the religious prohibition against masturbation? (Trust the rabbis, solutions have been found, and Kahn elaborates on these). Or, for a married couple, does artificial insemination from a third-party donor constitute adultery?

There are rabbis who favor the use of non-Jewish sperm donors in such cases - since Jewish tradition doesn't "care" if a non-Jew masturbates, and there is no fear of adultery occurring if the sperm of a non-Jewish, third-party donor is used because, under Jewish law, adultery is defined as intercourse between a married Jewish woman and a Jewish man who is not her husband.

The Orthodox establishment is largely united in the view that a child conceived with non-Jewish sperm does not have a father who is recognized under Jewish law. "In the halakhic imagination, non-Jewish paternity simply does not exist for Jewish children. Indeed, in the traditional rabbinic sources, children born to different Jewish mothers from the same non-Jewish sperm [donor] are not considered to be related in any way. They may even marry because they share no substance," Kahn explains (page 105). So this solution also neatly solves the problem of inadvertent incest among siblings who may have unknowingly been conceived by the same sperm donor.

But in the context of Israeli reality, the idea of using non-Jewish donor sperm has been hotly contested by other factions as a threat to the purity of Jewish genealogy. It is not difficult to imagine that there are many Orthodox rabbis who find it difficult to embrace the idea of multitudes of Israelis who would be considered as Jewish under Jewish law, but whose biological fathers could be Palestinian men (in practice, they rarely serve as third-party donors for Jewish women) or Aryan-looking kibbutz volunteers from Europe (far more common).

Consequently, many rabbis have added their own spin on this issue - one that is outside halakhic tradition. Although they agree that the sperm from a non-Jewish man does not establish paternity over a child born of a Jewish mother, the non-Jewish sperm still has the power to "pollute" the Jewish kinship that already exists, Kahn explains.

Those that reject the idea of using non-Jewish sperm then must face the quandary of whether the use of a Jewish donor constitutes adultery. This has consequently focused debate on whether adultery is constituted by a forbidden sexual relation or by the act of conception.

Some rabbis have concluded that adultery is defined by forbidden relations, not by the act of conception. The theological sources for this decision come from the Babylonian Talmud in which Ben Zoma was asked whether a kohen (priest, who is prohibited from marrying divorcees or women who are not virgins) can marry a maiden who claims she is a virgin and is pregnant. Ben Zoma replied that she may have conceived in a bath (into which a male has discharged semen) and therefore she may marry a priest. So clearly, in this very early case of "artificial insemination," conception and sexual intercourse are considered as independent.

Another source used by various sides in the rabbinic debate is the midrashic source on the medieval legend of Ben-Sira, who is said to have been conceived by the prophet Jeremiah's daughter, again in a bath that happened to contain semen. The seed was believed to have been Jeremiah's, who thus impregnated his daughter unintentionally. The prophet is nonetheless considered by some medieval sources to be the father of Ben-Sira - although not all rabbis at the time took this view. But in any case, because the source is a midrashic one - considered folkloric rather than legalistic - it carries less legal weight with the Orthodox community than the earlier Talmudic source.

My only quibble with Kahn is that she did not seem to have discussed with the rabbis she interviewed the potential of using DNA testing to avoid the problem of sibling incest which seems to preoccupy so many rabbis. We do not learn from Kahn's book what the halakhic viewpoint on this issue might be, or whether rabbis have considered this technological solution in any way at all. Some of the secular women she interviewed, however, have considered this option and told her they would ask their child and his or her intended spouse to undergo such testing when the time came to assure against inadvertent sibling incest.

Meanwhile, the hair-splitting among the rabbis goes on and on. Who is the mother in the case of a surrogate pregnancy? Is the child Jewish if it is gestated in a non-Jewish womb with an egg from a Jewish mother?

What will marriage mean?

For Kahn, an anthropologist, the major question is whether the technology of assisted conception is changing notions of marriage, family and continuity. As she puts it at one point: "How long will it be before Israeli women assimilate more progressive notions of their autonomous rights to reproduce and thereby cease privileging marriage as the preferred location for biological and social reproduction? Will Israeli women's investment in marriage change if it is no longer the only way to have children? And what will marriage mean if it has ceased to be the exclusive locus of legitimate reproduction?" (page 86).

She implies that the technology could have a profound and subversive social impact. But she provides no evidence that this may be starting to happen in Israel, and her own interviews show that most of the women who use the technology do so as a last resort in order to create a traditional family (in the case of married women), or to create as close a family as possible to the traditional mold (in the case of unmarried single mothers or lesbian couples).

Unlike in the United States where, among the gay community and for some single mothers, assisted conception has sometimes been part of a political philosophy of creating an alternative lifestyle, in Israel, as Kahn herself points out, having a child through assisted conception is part of the way of assuming a place within the mainstream.

She vividly describes the brit mila [ritual circumcision] ceremony of the alternatively conceived son of two secular Tel Aviv lesbians, where an ultra-Orthodox mohel [man who performs the ceremony] was officiating: "He skipped over the words in the liturgy where the baby is named `son of' the father, and just said the baby's name. For these women, and for the ultra-Orthodox mohel who performed the circumcision of their child, maintaining cultural continuity, symbolized through religious ritual, was completely taken for granted regardless of how the child was conceived" (page 42).

Kahn marvels, ultimately, at how Israeli society accepts the use of assisted conception so well. Her book should rank high on the must-read list of health specialists, potential parents considering using the technology, and those interested in women's and family issues or halakhic adaptation to modern technology. It will tell you all you ever wanted to know about nonsexual conception in Israel. And it is a study that seems to indicate that in the area of assisted conception, Israel, for the most part, is doing something right.

The writer is a member of the IHT-Ha'aretz editorial staff.