BACK IN THE NEWS...STEM CELLS AND JUDAISM

An abridged version of this essay appeared in July 2001 in the Atlanta Jewish Times.

It was the first published halakhic responsa to this burning national issue.

... all of life's questions and answers are to be found in the Torah- both oral and written, and Judaism has tremendously powerful insights for the human condition. While ethicists debate the relative pros and cons of the issue, the halachic determination is not based on relativity, but on principles and precedents in the Jewish legal tradition....

A JEWISH VOICE IN THE STEM CELL DEBATE

Rabbi Baruch Binyamin Hakohen Melman

All the while the headlines rage about the ethics and morality of stem cell research, and even as the scientists making the majority of the headlines touting revolutionary gains in terms of possible cures from such research turn out to be Israeli, many Jews still remain confused about what Judaism says about the issue. Cures for Parkinson's, Alzheimer's, diabetes, and other degenerative diseases all beckon over the horizon, brought ever nearer as a result of this very research. Certainly Judaism must have a plethora of insights, if not an exact response to one of the most pressing social issues of the day.

In Judaism, there is no central address for Jewish concerns, as much as we might desire or need one. Historically there was a Sanhedrin, but there is no one central authority today. Each group within Jewry recognizes its own self-selected leadership as its chosen authorities. At the most minute level, each synagogue selects its own mara d'atra, or local rabbinic authority for its rabbinic leadership.

On that basis, I share my thoughts and insights with the general reader, offering a modestly coherent glimpse into a halachic determination of the ethics of embryonic stem cell research. This endeavor is based on the grounding assumption that all of life's questions and answers are to be found in the Torah- both oral and written, and that Judaism has tremendously powerful insights for the human condition. While ethicists debate the relative pros and cons of the issue, the halachic determination is not based on relativity, but on principles and precedents in the Jewish legal tradition. The Torah, Judaism's main source and principle proof text, provides enormous halachic insights to those who might seek the Divine perspective on the topical concerns and moral dilemmas of every age. The search may or may not yield the results we most readily agree with, yet we are duty bound to take responsibility for the human condition and thus ally Torah with mankind's inexorable quest towards the spiritual perfection of the world.

Judaism has traditionally seen science and medicine to be fundamentally allied with G*d's desire for mankind to work in a Divine partnership to improve on the foundation of the Creation found in Genesis. "Be holy, for I am holy." To emulate G*d, is itself a Divine command. As G*d sent His angels to cure and alleviate Abraham's suffering from his Brit Milah, or Covenant of Circumcision, so too is it a mitzvah to heal the sick. Moreover, with three exceptions- the exceptions being idolatry, immorality and murder, one is mandated by Jewish law to set aside any other law in order to save a life.

The mandate to saving human lives is foundational. That being said, one can then rightly ask if the taking of embryonic stem cells, which destroys the embryo in the very process, is tantamount to murder, thus ending the debate right there.Thus we beg the question of when does human life begin. Instructive is the question of fetal prerogatives and at what point on the spectrum are those rights inviolable? Tractate Niddah (BT 30a -see Rashi on "eyno nichshevet livlad" there) is determinant for positing that embryos are not considered completed (let alone viable) before 40 days. They are considered as water- maya be'alma (see BT Yevamot 69b as well as Rashi on BT Bechorot 21b). And the embryos to be harvested for their stem cells are only days old, not weeks. The stem cell debate stands apart from the cloning debate as well as from the abortion debate. That being stated outright, nevertheless we can still make comparisons where applicable.

While abortion for its own sake is forbidden, authorities hold that up until birth the mother's life takes precedence where the pregnancy may pose a danger to the mother. The fetus has the status of a pursuer (rodef), and thus may be terminated (BT Sanhedrin 72b). The foundation text for the basic difference in status between a fetus and a live person is found in the Torah: Exodus 21:22-23. A mere monetary penalty follows the accidental loss of the fetus in contrast with manslaughter, where the killer is exiled and can be killed by a relative of the victim if found outside a designated refuge. So here instructively are the parameters of the issue.

Before birth, by Jewish law, the fetus once formed has the status of potential life, but is not considered fully a life. Before forty days, while to be cherished for its potentiality as a life, it has no judiciary status to even generate a monetary penalty in case of accidental miscarriage. That is not to say it lacks any sense of gravitas. Even onanism, the intentional wasting of seed, which is proscibed in Jewish law, is "likened" by some (keilu -similar but not identical) to committing murder (BT Niddah 13a - quoting Rav Yitzchak and Rav Ami). But that is not to say that the wasted seed has the status of human life with due legal protection. The emphasis is on the "wasting" of the seed, not the seed itself.

So now the prohibition against wanton destruction/wasting (bal tashchit) becomes relevant. Just as the commandment to "be fruitful and multiply" is facilitated in the course of fertility treatments, so too the discarding of the multiple embryos generated as a byproduct of such treatments should not be condoned as it would be a violation of bal tashchit. See Maimonides' Mishneh Torah, Hilchos Melachim - the Laws of Kings, 6:10, for his treatment of Deuteronomy 20:19. As the Torah forbids pointless destruction when laying siege to a city in the wanton destruction of her fruit trees, Maimonides extends the prohibition to wanton destruction in general. So the concept of wasting perfectly good embryos, which were created for a good purpose, becomes now the focus of the discussion.

End of life halacha informs the debate on the beginning of life. As the Igrot Moshe (Rabbi Moshe Feinstein) finds that extraordinary measures are not required to save a life, but once life support is attached it is forbidden to detach it, so too the notion of womb implantation as a veritable "life-support" would act as the determinant for a "hands off" demarcation vis a vis interfering with the natural course of events. Thus there is no fear of a slippery slope. The halacha thus offers firm points of determination for human intervention.

Broad fears of the devaluation of human life fade when shown the promise of new life and new cures to be found. While an embryo not yet forty days old even while implanted in a womb is not viewed in the halachic literature as having the status of an independent life entity, how much more so ("al achat kama vekama") neither would be one not yet even implanted in a womb.

But indeed there need be parameters, for anything good may yet be abused. In the worthy quest we have outlined we must rightly affirm boundaries lest life itself be devalued. In the scenario where multiple embryos are created as a "byproduct" of fertilization treatments, a "bidi avad" situation presents itself. However worthy the experiment's outcome, it is one thing to find a way to ethically deal with a problem that presents itself before us ("bedi avad") in the pursuit of a mitzvah. It is quite another to put oneself purposely in that situation ("lechatchila") when other alternatives are clearly available.

Using specially created embryos on a large scale would cause the neglect, disposal and wanton destruction of countless pre-exiting embryos. This type of causal relationship is called "gramma." Those who engaged in it would be aiding others in violating "bal tashchit." Thus any medical breakthroughs would properly fall under the rubric of "mitzvah haba'ah ba'averah", or the problematic and unlawful fulfilling of one mitzvah through the transgression of another (the issur -prohibition, of using a stolen lulav or sukkah comes readily to mind).

The rabbinic distinctions between lechatchila and bidi avad ("what situation can we create" vs. "what situation lies before us") are very real and valid, informing vast areas of the halachic literature in determining what is allowable and what is forbidden. And now that we have these embryos in our hands as a byproduct of the mitzvah of "p'ru u'revu" (procreation), what course of action necessarily follows? If these embryos should not be discarded, then we may rightly ask what should be done with them? As it has been determined that they have the potential to either become life once attached to a womb, were they to be adopted, or to lead to cures as stated above, either life-affirming option should be followed.

In summary, the Torah's imperative to "choose life," so firmly entrenched in the Jewish psyche, clearly establishes both the desire for fertility treatments as well as a natural inclination to be predisposed to harness the byproducts of such treatments in the pursuit of worthy life-saving medical goals. But while the overall goals are valid, a disregard for the sanctity of life itself must be avoided at all costs. To stray outside of the parameters outlined above, to create even potential life for the sake of science, for a less cumbersome and cluttered route to otherwise worthy goals, is to allow man to let his hubris cloud his proper ethical judgment. As the Torah's dictum of "tzedek tzedek tirdof," is understood as the proper attainment of justice through just means, so too in our case we must use careful guidelines so as to attain worthy goals but only via worthy means. May the Kadosh Baruch Hu grant us the wisdom and humility to choose wisely as a new dawn of discovery rushes up around us.

© 2001 by Rabbi Baruch Melman.