Theology and bioethics: is posthumous reproduction O.K.?

The full version of a story originally published on Vibewire here.

In matters of life and death, religious doctrine often plays a considerable role in the formation of an individual’s ethical agenda. For example, the Catholic Church maintains a firm position on abortion, rejecting its use as a violation of the fundamental belief that all human life has a right to life, and must be protected from the moment of conception. As dictated by canon law, both woman and all ‘formal conspirators’ would face automatic excommunication from the Church. Most of these ecclesiastical declarations are based on specific recorded examples of or clerical interpretation of the ancient religious texts.

As modern biomedical science has broken through previous technological restrictions in assisted reproductive technologies (ART) such as in vitro fertilisation-embryo transfer (IVF), artificial insemination by donor (AID), it is up to religious authorities to establish an official position as guidance for their adherents.

More recently, posthumous reproduction, which involves in vitro fertilisation of a woman using sperm collected from her deceased husband or partner, has enjoyed debate in the wider religious community.

Each of the three Abrahamic faiths has distinctive attitudes towards ART practices. These should be viewed through a strictly moral (and in many ways primordial) lens in contrast to elsewhere in society, where parallel discussions focus mostly on the health and psychological welfare of the resulting children and more ambiguously, on the parentage and inheritance rights of such children.

First of all, all three religions in discussion here require full marital relations and fidelity as a precondition to procreation. Fertilisation is supposed to fulfill a conjugal act between husband and wife for Christianity, Judaism and Islam. Artificial insemination by donor (AID) is considered adultery and thus out of the question.

Let’s start with Christianity.

The Roman Catholic Church and Eastern Orthodox Church resolutely oppose assisted reproduction in the fullest sense of the practice. Thus, while treatment for low sperm count and ovulation problems is fine, artificial insemination is not (even if using the husband’s sperm).

The Donum Vitae, issued in 1987 by Roman Catholic scholars, instructs Catholics on the importance of marital union and the act of sexual intercourse in the procreation of offspring. These two conditions make it necessarily ‘wrong’ and unnatural to seek IVF-embryo transfer, surrogate motherhood and cryopreservation (slow freezing and storage, usually for later use) of embryos.

For Protestants, it is acceptable to use ART given two stringent conditions: both gametes are to be produced from a married couple (ruling out sperm or oocyte donation and surrogacy), and no harm to the pre-embryo is to be done. No Christian denomination has yet to release official positions on the phenomenon of posthumous reproduction.

Islam

Islam encourages the treatment of infertility as a duty borne by the couple and society, as the Koran celebrates marriage and family formation. Artificial insemination by husband (AIH) using IVF is thus acceptable.

Like Christianity, Islam also rejects posthumous reproduction. But while the Christian faith defends the dignity and right of the child to his/her conception without medical intervention, Islam forbids it because the act of conception falls outside the marital term. At her husband’s death, the wife loses her reproductive rights in liaison with him.

Judaism

In the case of Judaism, it gets interesting – and a great deal more liberal.

While Catholics take their judicial beliefs from canon law and Muslims from Sharia law, Jews operate through Jewish law. All three laws can differ significantly from the civil laws of different countries.

While Israeli law is communally accepted and administered to Israeli citizens of all religions and ethnicities; matters of personal status, such as marriage, divorce, paternity, and legitimacy are referred to rabbinical courts and judged by the eye of Halakha, the Jewish law. Halakha looks favourably upon AIH if it is medically testified beyond doubt (given 5-10 years of attempts at natural procreation) that such a procedure is necessary.

God’s first commandment to Adam to ‘Be fruitful and multiply’ is a good approximation of modern Israel’s perspectives on reproduction and assisted reproduction. The multi-ethnic make-up of the Israeli population (25% non-Jewish, the growth of which could be a threat to the Jewish state and security), combined with an emphasis on family integrity makes it a national objective to grow the Jewish population.

As such, Israel is one of the leading countries in research and development of reproductive technologies, with the highest number of fertility clinics per capita in the world. Israeli women are also the highest per capita users of the procedure.

Predating artificial insemination technology, partial surrogacy was practiced in biblical times. In Genesis 16, Sarah wife of Abraham was childless and had a maid bear Abraham a son, Ishmael before being miraculously cured of her infertility. Other stories in the Old Testament serve as a guiding example for modern Jewish clergy when advising infertile couples.

As for posthumous reproduction, the discontinued practice of wedding a man to his brother’s widow was the most feasible way of producing a dead man’s heir. Judaism follows the law of matrilineal descent, which means that a child is a Jew only if born to a Jewish mother.

The marriage ideal in religion comes into play as assumptions of a loving relationship are used to condone the bequest of a man’s sperm to his wife after his death in order for her to have his genetic child (even without prior consent). It is not too surprising then that posthumous reproduction today is supported by both Israeli law and Halakha.

It is important to note that while the sperm of a dead man can be used to fertilise his wife, the frozen embryos of a dead woman is forbidden from being used to produce the man’s genetic heir, as this would involve a third party, the surrogate mother.

Even so, in 2011 the parents of a 27 year old dead Israeli man, Ohad Ben-Yaakov applied for legal permission to use his frozen sperm to produce a grand child. The man was not married or in a relationship, and they would have had to find a willing, single mother who would raise their grandchild. Their lawyer Rosenblum said, ‘It’s an idea of continuation. It’s a dream. It’s magic.’ Cases like these take Israel’s pro-life attitudes to the extreme, signaling an ever-progressive national and global debate on the ethics of posthumous reproduction. The ‘dream’ of postmortem parenthood would shift the odds in favour of life away from the finality of death.

God’s directions to Adam ‘to work the garden and to preserve it’ (Genesis 2) are sometimes interpreted as an order to improve upon the human creation and to meet its needs, which justifies Jewish flexibility in regards to reproductive ethics. The needs of a mother to survival therefore supersede the unborn life of a fetus, making abortion permissible in circumstances where bringing the pregnancy to full term would endanger the mother’s life. Indeed, in Halakha the pre-embryo that is younger than forty days old from conception is described as ‘mere water’.

Religious institutions offer an ethical dimension to the assisted reproductive technology debate. These considerations are often forgotten in the judicial maelstrom that busies itself with semantic battles over legitimacy and social security.

Change is happening already. Posthumous reproduction, amongst other new reproductive technologies, looks set to be part of a new medical and social reality. Society must choose its battles wisely. In championing diversity of family structures and new technology, we cannot ignore the many couples and families who hold staunchly to these religious beliefs.

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