Donated Embryos and the New Israeli Ruling on Establishing Jewish Heritage

9 years ago

The arbitrating rabbis in Israel reversed an important decision concerning donor eggs this week; speeding through the passing of a new law and emotionally affecting even non-Israeli Jewish families. It's a case of a good impulse gone horribly, horribly wrong without regard to the emotional repercussions--either for the parents or the child.

To give background, Judaism is a matrilineal religion and your status is determined by your mother. Determining Jewishness is important in the sense that in Israel, it affects many other rights including marriage down the road. If the mother is Jewish, the child is Jewish--regardless of whether the family practices Judaism. A child who is conceived without assistance by a Jewish mother is by default Jewish. A child who is conceived with the help of fertility treatments is also Jewish.

Where rabbis have stated arbitration is in situations such as a Jewish surrogate carrying a baby for a non-Jewish couple (and the reverse as well, with consideration to both traditional and gestational surrogacy), adoption, and donor eggs.

Prior to this ruling, while using a Jewish egg donor was encouraged for Jewish women, there was leniency, with the belief that since the child was carried by the Jewish woman, the child was indeed Jewish. It not only made sense, but it gave room so commandments (mitzvot) could still be performed. It encouraged Jewish couples to fulfill being "fruitful and multiplying." And let's be frank--with infertility scattered throughout the Torah, including 75% of the Jewish matriarchs infertile, it would have been a slap in Sarah's face to not honour scientific advances that give infertile men and women a chance to build their family. You better believe Abraham's wife would have used donor eggs if they had been available at her local area desert fertility clinic.

The new thought is that Jewishness is determined by the gamete giver--meaning, if the egg donor is not Jewish and the mother is Jewish, the child is not Jewish and needs to be converted at birth in a ceremony.

Michael Broyde was quoted once as saying, "On core matters of Jewish identity, there's no harm in an unneeded conversion. It's good to clarify doubt by a simple mechanism." And yet, I have to disagree with Broyde, and perhaps he is cavalier about his feelings because he has never had to face this situation, but I find the offered solution of conversion incredibly offensive.

My children, as their mother, regardless of how they enter our family, are Jewish, simply by the fact that I am Jewish. And I honour that right by raising my children Jewish. Especially in the case of blended families, where some children enter via fertility treatments and others enter via donor egg, adoption, or surrogacy, it is hurtful to the fabric of the family to create a hierarchy where some children are given the status of Jewish and others are told to convert to Judaism. What are the unspoken statements concerning the tie between the mother and child that stem from this advice? The rabbinate should be considering the emotional implications of their rulings and the fallout of such decisions.

And yet, it is precisely the intended fallout of the decision that led the rabbinate to reverse the ruling. Old regulations encouraged those already undergoing IVF to donate extra embryos rather than have people volunteer and take the medical risk of being solely an egg donor. "Twenty-nine years ago, after a woman died following her altruistic donation of ova, the ministry set regulations that only a woman undergoing fertility treatments could donate extra ova to another woman." In other words, someone undergoing IVF is hyperstimulating her ovaries anyway, and since many IVF cycles result in extra embryos that are frozen instead of being transferred, it makes sense to ask those already undergoing the procedure to be altruistic rather than asking those who have no need for fertility treatments to undergo them for the sake of another person.

Sort of makes sense, right, if you take emotions out of the equation.

But altruistic donation from one infertile person to another isn't what happened. People have been reluctant to donate their leftover embryos to other men and women, and with laws against a non-infertile woman donating her gametes, a dearth of donor eggs has occurred in the country, forcing Israeli women to utilize egg donors overseas. Hence the change in opinion--this new rabbinical ruling means that non-infertile Jewish women can become egg donors because their eggs are necessary for Israeli Jewish couples wishing to utilize donor eggs and have the child be Jewish upon birth.

It boils down to this: rabbis thought they were protecting women by encouraging them not to take unnecessary medical risks by banning egg donation. Once they realized that many people would not be able to be fruitful and multiply because what they hoped would happen--IVF-utilizing couples donating to other infertile couples--didn't happen, they reversed their decision now making Jewish eggs more attractive and available.

Lawmakers have stated that while it's not an ideal law, it's important to get guidelines in place first and tweak them second. And I can't argue with the idea of guidelines, but once again, it seems as if the rabbinate has made their decision from a pedestal rather than including the opinions of willing gamete donors, infertile men and women, and those unwilling to donate their embryos to another person.

After I read the article, I sat for a long time thinking about what I would be willing to do as an infertile woman if I was cycling in Israel. Knowing how it feels to be infertile, would I donate my unused embryos to another person, giving them a chance at parenthood? Would I want to keep them indefinitely for myself in case I want them in the future? Would I be more comfortable with destroying the embryos, donating them to science, or giving them a chance at life with another family? And beyond this, would I be willing to donate my embryos in America, where the religion of the mother is not of national importance?

Most clinics ask you to consider what you will do with unused embryos and for good reason--there are estimated to be 400,000 cryopreserved embryos in America right now. There is a yearly storage fee and many clinics will only store embryos for 2--5 years before moving them to another location.

Others in the infertility blogosphere have already grappled with these questions. Making Me Mom has an interesting post on utilizing IVF within the confines of Christianity. Unwilling to destroy or donate to science unused embryos, the author grapples with the idea of what to do in the case that they have embryos to freeze. She writes,

We could donate them to another infertile couple, but we feel like that is easy to say now when it is not a reality, but would be a much more difficult thing to face if one of us passed away. It reminds me of saying in premarital counseling, "Oh, if we can't have kids we'll just adopt"....glibly and easily. But here we are and there is nothing easy about it.

Life By the Day, a Catholic, discusses this idea as well.

Right now, we have chosen to donate them to research. I liken this to organ donation – if someone else can benefit from some of the misery I have been through, all the better. The other option – donating the embryo to another couple – I just don’t think I could ever let them go. I would have trouble knowing there was a child created by me and S walking around in the world, without us.

Diary of a Yummy Mummy lists out their decisions on a plethora of possible situations and admits: "I can't explain to you how bizarre it is to think about these kind of things. While I have no emotional attachment to these embryos, I do feel like we are in some way responsible for taking care of them for the next 5 years. "

I really struggled with my own answers. I want to be the type of person who would donate them to another person, giving them a chance at parenthood. Knowing how distressing it can be to have options closed to you, I wouldn't want to figuratively walk by someone in need without stopping to help. And yet, I cannot wrap my mind around the idea of giving away this part of Josh and myself without the possibility of knowing our future. What if years afterward, we decide to have another child and those embryos are gone and my eggs are too old to use? I don't know how to come to that place of peace without knowing the future.

At the same time, I tried to work backwards, taking apart the donation to its core. It's just gametes--it isn't a person, it's merely a possibility. It is no more of a life than blood in reality. It has the potential to create life, or in the case of blood or an organ, sustain life. I don't have an emotional attachment to my blood, and would give it away to strangers. The same with my hair, which I have donated in the past. I paused a bit longer on the idea of an organ, though my fear comes not from my feelings post-surgery or missing the organ, but fears of the surgery itself and lasting effects on my body. Still, if I knew another person's life depended on my kidney, I'm not sure how I'd live with myself without giving it to them.

And then I return to the idea of my gametes. I don't mourn all the eggs I lose within my body each month; I'm not sure why I would mourn the ones that would be removed from my body. And yet, I do.

If you were undergoing an IVF cycle, would you donate your unused embryos, especially knowing emotionally what another infertile person is going through?

Melissa is the author of the infertility and pregnancy loss blog, Stirrup Queens and Sperm Palace Jesters. She keeps a categorized blogroll of over 2100 infertility blogs and writes the daily Lost and Found and Connections Abound, a news source for the infertility blogosphere. Her infertility book, Navigating the Land of If, is currently on bookshelves (May, 2009). She is the keeper of the IComLeavWe list and compiles the yearly Creme de la Creme.

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