How Orthodox Jewish Law Is Adapting To In Vitro Fertilization

Rabbi Yehoram Ulman (right) inspects an IVF lab in Sydney as part of his rabbinic supervision. Photo courtesy of Ulman.

MELBOURNE — When Mina Cohen turned 30 last year, she decided that she wanted to freeze her eggs. A dual American-Australian citizen, Mina had only started considering freezing her eggs after she moved to the United States about three years ago. While living in New York and Los Angeles, she heard from many of her friends who had done so. 

After doing extensive research and speaking to many friends who had frozen their eggs, Cohen was confident in her decision.

“I knew it was something I wanted to do…and I wanted to fully own the decision,” she said. “So, I didn't tell any family or friends until I had had all my initial consultations and had chosen a clinic. I didn’t want to feel under pressure to make a decision one way or another, so when I actually made the decision to go ahead and freeze my eggs, it felt very liberating.”

While egg freezing procedures have become increasingly common, Cohen’s procedure, which she undertook while visiting home in Melbourne, Australia, had an extra dimension to it because she is an Orthodox Jewish woman.

While widespread data on the number of Orthodox Jewish women undergoing in vitro fertilization treatment is not available, Facebook groups dedicated to this topic have increased in recent years, as have articles about IVF treatments in major mainstream and Jewish newspapers. This has led many Orthodox Jewish women to want to freeze their eggs, reflecting global trends that show more women are seeking ways to preserve their fertility as they marry later, focus on their careers or have difficulty finding a partner — which delays when they have children. Since 1996, U.S. births assisted by reproductive technology have increased threefold, to 2% of all births, according to Pew Research.

According to increasingly common interpretations of Orthodox Jewish law, any assisted reproductive technology — including egg and sperm extraction or IVF — requires the presence of “mashgichim,” Jewish law supervisors.

While mashgichim are common across a variety of Jewish practices to ensure proper observance of Jewish law — kosher food preparation, for example — in this context, mashgichim are Orthodox men or women who attend assisted reproductive labs while procedures take place, ensuring that they comply with Orthodox Jewish law. 

The idea behind supervision is twofold. On one hand, there is a fear of a mistake occurring, resulting in genetic material being mislabeled or, in worst case scenarios, implanted into the wrong person. In addition, in Orthodox Judaism, there is an idea that genetic material should be accompanied as it leaves the body — similar to how Orthodox Jews accompany a dead body from the time of death until burial in the ground, so that the body is not left alone.

Rabbi Yehoram Ulman is a senior rabbinic “dayan,” or judge, at the Sydney Beth Din, a Jewish religious court. He is one of the foremost rabbinical experts in the world on assisted reproductive technologies, and from his offices in Sydney, Australia, he answers questions from Jewish people around the globe.

In Sydney, Orthodox Jews can use one of seven IVF facilities under his supervision, with his network of mashgichim supervising IVF procedures, egg and sperm retrieval, and embryo creation and implantation. Ulman also consults widely for other IVF labs overseas, including at Cornell University and New York University, on how to best comply with Orthodox Jewish law in this growing and emerging field.

While there is not yet a universal consensus among Orthodox Jews that supervision for these procedures is an absolute requirement, in Ulman’s mind, there is no question.

“I feel that (supervision) is not a stringency, but it is a necessity,” he said. He, along with another rabbi, Yosef Feigelstock, created a protocol in 1994 that is used by Orthodox Jews around the world to guide labs as well as couples and individuals wanting to use assisted reproductive technologies.

While different rabbis use different safeguarding techniques, Ulman’s guide requires his team to place special unbreakable seals and stickers with his signature on the dishes that store genetic materials.

These special stickers will show if genetic material has been opened or tampered with and ensures that they are not inadvertently mixed up or transferred without mashgichim present. Every time a dish is opened, closed or even moved, mashgichim are there to supervise.

When asked whether lab workers in IVF facilities are offended by the idea of religious supervision to ensure that there are no mix-ups, perhaps questioning their competence, Ulman reflected on his practices.

“When I talk to the lab directors and embryologists,” he said, “I explain to them a concept that also exists in secular medicine, where there is separation of interests. For example, in Australia, as in many countries, when organ donation is facilitated, they don’t allow the same department that is involved in certifying death to facilitate the donations. It is an inherent conflict of interest.”

As far as Ulman and his team of mashgichim are concerned, they have one job in the lab: to ensure that any procedure involving genetic material complies with “Halacha,” Orthodox Jewish law.

“We work with reputable labs across the world,” Ulman said. “We explain to the labs that our role is to safeguard against a conflict of interest and that this is not a personal question about their competence. Rather we have inherent requirement to safeguard against any potential problems.”

He laughed as he related an example demonstrating that the need for supervision does not discriminate against anyone.

“If Moses were to open his own butcher shop, he would still be required to have a separate kosher supervisor to ensure his meat met kosher requirements,” he said.

In addition, there are often headline stories about significant IVF mix ups.

“Every single year, around the world, there are malicious mishandling of genetic material — plus, in America, in 1-2% of IVF cases there are mistakes, so mashgichim are there just (as) an extra pair of eyes,” he said.

While having a supervisor present for assisted reproductive procedures is growing in popularity among many Orthodox Jews, the practice is not yet universal, particularly in smaller Jewish communities where there are fewer resources available.

Maharat Ruth Balinsky Friedman is an ordained Orthodox female rabbi. Assisted reproductive technologies and infertility are topics close to her heart. She has publicly written and talked about her personal struggles to conceive and her journey through IVF. This struggle is common to many women who have not yet found a partner and want to preserve their fertility while they are still young, when they tend to have eggs that are more likely able to conceive.

Friedman acknowledges the growing practice of having mashgichim present for assisted reproductive procedures and its popularity, particularly in large Jewish communities, like New York City. However, she is unsure how supportive she is of the practice.

“I think that it’s a lot to ask a couple dealing with infertility, to tell their doctor, ‘We don’t really trust you. We are going to have an extra person at all times who gets in the way and has to have the key to the lab,’” she said.

Friedman thinks that having mashgichim present sends the wrong message to medical professionals.

“Do you go to your doctor in any other setting and say, ‘I don’t trust you?’” she asked. “I know it’s a cynical way of saying it, but when we have (mashgichim) present, we are effectively saying, ‘I don’t trust you.’”

In addition, she is conscious of the additional financial burden.

“IVF is already really expensive, so to ask couples to pay an additional cost for someone to watch their procedure is a lot to ask, when they are already bearing a huge financial cost,” she said.   

Rabbi Ulman thinks that Orthodox Judaism is the only religious group that requires in-person supervisors to be present in the lab.

The Rev. Kevin McGovern is parish priest at Saint Cecilia’s in Melbourne, Australia. A Roman Catholic ethicist, he was part of the working group that came up with Australia’s ethical guidelines for assisted reproductive technology in 2017. Fertility clinics in Australia are required to comply with these standards.

“The Catholic Church has a different position to Orthodox Judaism,” McGovern said. “Catholics hold that the creation of new human life should come from a union of husband and wife, a man and woman, who create that new life through sexual intercourse. Therefore, we support any techniques that assist natural procreation, but we don’t support IVF or some or any other assisted reproductive technologies that replace natural procreation.”

This was confirmed by the Catholic Church through its Congregation for the Doctrine of the Faith on these matters — in the original 1987 document called “Donum Vitae” (The Gift of Life) and the updated 2008 document called “Dignitas Personae” (The Dignity of the Human Person).

“In Catholicism, there is a broad distinction between dogma and doctrine,” McGovern said. “Dogma are religious beliefs about God. Doctrine is trying to work out … the implications of our belief for the decisions that people make in their lives. The church asks that Catholics give doctrine a fair hearing and prayerful consideration … but we accept that there are all sorts of times when someone looks at the church’s doctrine and they find that they won’t agree with it.”  

Back home in Los Angeles, Cohen is glad that she decided to use mashgichim as part of her egg freezing procedure.

“I found it comforting, empowering and reassuring,” she said. “I am so glad I had someone join me on my journey and would love to be able to return the favor one day and join someone else's journey.”

Nomi Kaltmann is an Australian lawyer who writes regularly on politics and religion, with her pieces most often found in Tablet Mag.