Shabbat Parashat Naso| 5765
From the works of Hagaon Harav Shaul Yisraeli zt”l - Paternity in Cases of Artificial Insemination - Part I - From Chavot Binyamin, siman 107
With the development of modern, medical technology, it has become more common for women who are having trouble conceiving to use artificial insemination to conceive. [Ed. note- of course, now we have more advanced systems.] By this, we mean that the husband’s sperm is injected into the wife’s uterus. (It is halachically advisable that it is the husband’s, specifically, although even in this manner, there are those who forbid the matter.) The question is: what is the “father’s” halachic connection to the child? It is also possible to freeze sperm and preserve it for later use, and so it is possible that the sperm will be implanted into the uterus after the husband’s death. This raises further questions as to whether such a situation does not preclude a halachic relationship between genetic father and child.
The main Talmudic source dealing with a similar type of impregnation is the gemara in Chagiga (14-15). “They asked Ben Zoma: Is a “pregnant virgin” fit to marry a kohen gadol? Do we consider the possibility that [she had relations in such a way that she appears to still be a virgin] or is that unlikely? He said to them that it is unlikely, and we have to consider that she may have conceived in a bath (Rashi- a bath which contained sperm).”
The commentaries on the Shulchan Aruch discuss the status in a case where a woman conceived from sperm in which she had soaked, regarding whether the source of the sperm would be the father of the child or not. The Chelkat M’chokek (1:8) was unsure “whether the father would fulfill in this way the obligation of p’ru u’r’vu (procreation) and whether he was considered a son for all sorts of things.” The Beit Shmuel (1:20) cites the Haghot Has’mak that forbids a woman from lying on a sheet that a man other than her husband laid on, lest she become impregnated in such a way that could cause the offspring to marry a sister from someone that he did not realize was his father. The Beit Shmuel deduces from there that the source of the sperm is considered the halachic father of the child. The Taz (ad loc.) rejects this as a proof that a sperm donor can fulfill the mitzva of p’ru u’r’vu by such means. He says that the Haghot Has’mak may be a stringency that cannot be relied upon to create an exemption for the “father” from any further obligation of p’ru u’r’vu, especially because in the described case the man was not active in the possible fulfillment of the mitzva. The Birkei Yosef (ad loc.:13) also raises doubts whether the Haghot Has’mak intends to rule that the offspring would be related to the sperm source’s family and says that he might only object to our being unaware of the child’s genealogy.
What we so see from the gemara in Chagiga and the Haghot Has’mak is that even if a woman is impregnated from a man with whom she may not have relations, she and the child are not disqualified as if illicit relations had taken place. If, however, the father had the type of disqualification that is transferred to the next generation even without a new act of illicit relations, such as mamzerut, then, [ed. note- to the extent that we relate the child to the genetic father], the child would also carry that disqualification.
A few Acharonim bring gemarot thatsearch for cases of uncommon family relationships and assume that they cannot exist without incest being violated. If impregnation in a bath (the ancient concept equivalent to artificial insemination) would create a full family relationship between genetic father and child, those gemarot should have mentioned that possibility. [Ed. note- we have left out the proofs because of their complexity.] Therefore, we would have to conclude that there is significant doubt about the halachic connection between the genetic father and child in this case.
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