Newsgroup: it.cultura.ebraica
Titolo: Referendum-domanda

Si parla spesso di cattolici, ma quale è la posizione degli italiani di
religione ebraica a proposito dei referendum?
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Per il manifesto, le FAQ ed un'interfaccia Web visita 
http://www.e-brei.net/

 religione ebraica a proposito dei referendum?
Reitero anch'io la domanda. Si sente per esempio dire che per la 
religione ebraica l'embrione diventa persona dopo 40 giorni, è vero?
Grazie
Franco
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 ebraica l'embrione diventa persona dopo 40 giorni, è vero?
ciao franco, credo che nessuno vi abbia risposto perchè l'argomento era già 
stato trattato in un altra discussione (vedi qui sotto: Rav Di Segni sulla 
fecondazione, postato da tonibaruch il 20 maggio) ci sono anche indicazioni 
per approfondire.
un altro articolo è :
http://www.shalom.it/modules.php?name=News&file=article&sid=437
Eleonora
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 religione ebraica l'embrione diventa persona dopo 40 giorni, è vero?
Eleonora ti ha già risposto, portandoti un articolo che presumo si 
riferisca alla posizione ortodossa.
Interessante, riguardo alla fecondazione in vitro e allo status 
dell'embrione, questo specifica teshuvah (responsum) che trovi sul sito 
del CCAR (Central conference of American Rabbis (R))
http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5757
In sintesi
1) Come tutte le pratiche mediche, la fecondazione in vitro è 
giustificata quando i suoi benefici probabili superano i rischi possibili.
2) La  legge ebraica definisce un embrione di meno di quaranta giorni
maya be`alma, "semplice acqua", quindi non un feto, a maggior ragione un 
embrione non impiantato, fuori dall'utero, non ha lo status di feto. Non 
è permesso violare lo shabbat per "salvare" la vita di embrioni in 
vitro. E' addirittura non vietato, secondo alcune autorità halachiche 
contemporanee, gettare gli embrioni soprannumerari risultanti dalle 
pratiche di fecondazione assistita, in quanto, essendo più giovani di 40 
giorni, non essendo impiantati, non hanno lo status di feto e non si 
applica a loro la legislazione che riguarda l'aborto.
3) Detto quanto sopra, la mancanza di un divieto non giustifica 
automaticamente secondo l'ebraismo liberale il gettare embrioni senza 
ragioni, esattamente come lo status di maya be'alma non consente, in sé, 
l'aborto. L'embrione pur non essendo feto è "vita in divenire" già 
provvista delle necessarie informazioni genetiche. Occorre che esistano 
ragioni positive. La soddisfazione delle mitzvah di far nascere bambini, 
che permette altre importanti eccezioni alla legge ebraica è una ragione 
sufficiente a consentire di scartare gli embrioni soprannumerari che 
dovessero risultare da tale pratica medica.
4) Se è permesso scartarli, a maggior ragione è permesso utilizzarli per 
  la ricerca, in aree che possono risultare utili per salvare vite umane.
5) Chi è il genitore?
La legge ebraica tradizionale è molto complessa e, secondo i rabbini 
reform, poco utile a dirimere il problema creato da nuove tecniche 
inimmaginabili secoli fa (si legga il punto 5). Per l'ebraismo liberale 
il bambino nato da eterologa può essere considerato con lo stesso status 
di un bambino adottato, i cui genitori sono quelli adottivi.
Tb
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In Vitro Fertilization and the Status of the Embryo
5757.2
She'elah
In the procedure known as in vitro fertilization (IVF; the "test tube 
baby"), human ova are removed from the womb and placed in a petri dish, 
where they are fertilized with sperm. The usual procedure is to choose 
the "best" of these embryos or zygotes for implantation into the womb 
(of either the ovum donor herself or of a "host mother") and to discard 
the rest.
What is the status of the zygote with respect to "humanhood"? May those 
zygotes not chosen for implantation be used for medical research? May 
they be offered to another couple, and if so, who are ultimately the 
parents of the child? Perhaps we should be guided by the ruling of Rav 
Hisda in BT Yevamot 69b that prior to forty days gestation the human 
fetus is but "mere water" (maya be`alma) and does not warrant 
independent status under halakhah. (Rabbi Thomas Louchheim, Tucson, AZ)
Teshuvah
The development of the procedure of in vitro fertilization, which 
creates and maintains a human embryo outside the womb, raises many 
difficult religious and moral questions, some of the most important of 
which are noted in our she'elah. In addressing them, we as rabbis must 
first of all be guided by the Jewish legal tradition, as we understand 
it from our own liberal Jewish perspective, although we recognize that 
our tradition may offer but limited practical guidance on issues of this 
sort.1 And as liberal rabbis, we shall consider as well the findings of 
contemporary biological science, medicine and genetics.
1. In Vitro Fertilization as a Medical Procedure. We begin by 
considering briefly a basic issue implied by our she'elah: the 
permissibility or advisability of in vitro fertilization as a medical 
procedure.2 To answer this question, we must address to IVF the same 
inquiry we apply to all medical issues: does the medical benefit which 
might accrue from the procedure justify its risks? Jewish tradition 
teaches us to regard our lives and our bodies as gifts from God and 
therefore prohibits us from placing them in needless danger3 or 
subjecting them to unnecessary physical damage.4 These concerns are set 
aside, of course, in the case of legitimate medical need,5 since 
medicine is a mitzvah.6 By "medicine" we mean the wide array of 
chemical, surgical, and other procedures aimed at the correction or 
control of disease. And by "disease" we mean a condition in which some 
aspect of our biological or psychological systems does not function 
properly.7 Accordingly, we may define human infertility as a disease and 
the procedures designed to correct it as medicine. We might add that 
since Jewish tradition and Reform Jewish teaching see the birth of 
children as a blessing to their parents and to the entire community of 
Israel,8 the development of technologies which enable the infertile to 
bring children into the world should be similarly be welcomed as a 
blessing to humankind. Since current information indicates that IVF is 
not associated with unacceptable risks to either the health of the woman 
or of the child, we see no reason no oppose the procedure or to issue 
any warnings concerning it. On the other hand, those considering IVF 
must take into account the normal medical risks of any surgical 
procedure, as well as the psychological stress involved in fertility 
treatments, before they decide to use it.
2. The Status of the Embryo at Less than Forty Days. Our sho'el is 
correct that the sources regard a human embryo of less than forty days 
gestation as maya be`alma, "mere water", and therefore not a "fetus" 
(ubar) at all.9 On this basis, a number of authorities are willing to 
rule more leniently on the question of abortion: that is to say, if we 
presume a prima facie halakhic prohibition against abortion,10 that 
prohibition either does not apply or is much less stringent with regard 
to a fetus at less than forty days following conception.11 By extension, 
we would expect an even more permissive attitude concerning an embryo 
which, because it exists outside the womb, is not defined as a "fetus." 
This is indeed the case. One leading contemporary halakhist rules that 
it is forbidden to set aside the laws of Shabbat in order to save the 
life of an embryo in a petri dish, even though we are permitted to 
violate Shabbat on behalf of a fetus.12 In a ruling which touches 
directly upon our own she'elah, R. Chaim David Halevy permits a hospital 
or clinic to discard "excess" embryos created for purposes of IVF, 
explaining that the prohibition against abortion relates only to the 
fetus and not to an embryo maintained outside the womb.13 A similar 
decision is rendered by R. Mordekhai Eliyahu.14
3. In Vitro Fertilization as Healing (Refu'ah). We agree with these 
decisions, but we think it vital to expand their rationale. The absence 
of an explicit prohibition against destroying an embryo does not in and 
of itself justify the act of destruction, any more than the definition 
of an early-stage fetus as "mere water" automatically permits an 
abortion. Like the fetus, the zygote is not a legal person.15 Yet it 
most definitely is a person "in becoming," possessing all the necessary 
genetic information; it lacks only gestation, development in utero, to 
realize its biological potential. Rather, just as we require some 
warrant, however "slim,"16 to abort the fetus, so too we should seek 
some positive reason to argue on behalf of the destruction of this 
microcosm of the human being.
We find this reason in the nature of IVF as a form of refu'ah, of 
healing, a medical response to the disease of infertility. As we have 
already written, actions which might under other circumstances be 
forbidden may be undertaken if they constitute a proper element of a 
therapeutic regimen: in other words, if they are defined as medicine and 
contribute to the treatment of disease. Thus, although we would 
certainly oppose the wanton destruction of human embryos, we can permit 
the discarding of excess embryos as a necessary part of the IVF 
procedure. We say "necessary" because 1) multiple embryos must be 
created in order for the procedure to be feasible and effective; and 2) 
to require that each and every zygote be preserved would likely place a 
cumbersome burden upon hospitals and laboratories. Under such 
conditions, many of these institutions would likely refuse to perform 
IVF, thus rendering the procedure intolerably expensive or simply 
unavailable to many of those who seek it. Given that our tradition does 
not expressly forbid the destruction of the embryo, the positive value 
of IVF as a medical therapy clearly justifies the necessary discarding 
of excess zygotes.
Moreover, since IVF is a means by which Jews can fulfill the mitzvah of 
childbearing, for whose sake a number of important ritual prohibitions 
can be waived,17 we think that our tradition would permit us to discard 
the excess embryos as a necessary means of enabling Jewish people to 
build families and bring children into the world.
4. Medical Experimentation. If in the name of "medicine" it is permitted 
to discard the excess embryos created during IVF, then it is certainly 
permitted to utilize these embryos for research intended to increase our 
life-saving scientific knowledge. We would add the proviso that whether 
it be discarded or used for research, the embryo be treated and handled 
with an attitude of respect and reverence that is befitting of that 
which, after all, a potential person, a nefesh in becoming.18
5. Parenthood. Who are "ultimately" the parents of a child created by 
IVF? This question has been considered by several Orthodox halakhists, 
whose arguments--and our difficulties with them--we summarize here.
R. Eliezer Yehudah Waldenberg rules that a child conceived outside the 
womb has no parents: it bears no halakhic relationship either to its 
biological parents or to the "host mother," the woman who carries the 
child to term.19 He cites as support a statement by Maimonides in the 
Moreh Nevuchim that "human organs cannot exist separately from the body 
and still be regarded as fully human."20 Thus, an ovum detached from its 
"natural" place ceases to be a human ovum. He quotes as well the 
talmudic dictum that "a fetus in the womb of a Canaanite slave is like 
the fetus of a beast."21 He interprets this to mean that "no yichus 
(familial relationship) is possible outside the womb of a Jewish woman"; 
hence, the embryo created in a petri dish enjoys no yichus or familial 
relationship at all. Both of these proofs, however, are clearly flawed. 
In mentioning Maimonides' philosophical treatise, Waldenberg relies upon 
the latter's scientific judgment, the truth of which depends upon its 
accuracy as a description of physical reality. That judgment, while it 
may have corresponded to the best available scientific knowledge in the 
twelfth century, is now outdated; today, it is possible to establish 
that an organ is "human" by means of chemical and genetic testing. If we 
wish to base our religious decisions upon scientific information, it is 
incumbent upon us to use the best science available, as did Maimonides 
himself, rather than enslave our scientific judgments to standards which 
science itself has long since abandoned. Waldenberg's talmudic evidence, 
meanwhile, does not prove that yichus is created exclusively within a 
Jewish womb.22 The text speaks instead to the "matrilineal" principle of 
Jewish descent: traditional halakhah does not recognize the legal bond 
between a father and his child by a non-Jewish woman. This says nothing 
at all about the case in which the donors of the biological materials 
for IVF are both Jews.
Other authorities hold that a child created by IVF is the offspring of 
the woman who bears it, whether or not she conceived it.23 They base 
this conclusion upon an analogy to the talmudic passage concerning a 
woman who converts to Judaism during pregnancy.24 Since "one who 
converts is like a newborn child,"25 these authors reason that both the 
woman and her fetus become "newborn": i.e., all prior families ties 
(yuchasin) are cancelled, including the relationship between this mother 
and her fetus. Yet once the child is born the halakhah, for purposes of 
the law of incest, recognizes it as this woman's child. The authors 
infer therefore that it is birth, rather than conception, which in all 
cases establishes the mother-child bond, so that the child conceived by 
IVF is the legal offspring of the "host mother." While this conclusion 
is open to halakhic criticism (since the sources in question can be 
interpreted in several different ways),26 we would question the aptness 
of the analogy itself. Jewish law defines the Jew-by-choice as a 
"newborn child" for religious rather than for biological reasons. The 
ger or giyoret who enters our community and embarks upon a life of Torah 
and mitzvot most definitely becomes a "new person." In the eyes of the 
talmudic sages, conversion marked a sharp and irrevocable break with 
one's past and with one's connections to the non-Jewish world. However 
we understand this concept today, it has nothing to do with the case of 
an embryo conceived through IVF. This fetus may experience a change of 
place, but unlike the proselyte it undergoes no transformation of 
religious status.
We learn two things from these observations. First, rabbinic scholars 
ought to acknowledge that traditional techniques of halakhic analysis, 
in particular the case method of reasoning by analogy, are of limited 
usefulness in an area dominated by technological novelty and innovation. 
The tortuous logic of the arguments we have just cited demonstrates that 
there may simply be no precedents or source materials in talmudic 
literature that offer plausible guidance to us in making decisions about 
these contemporary scientific and medical issues.27 Second, given our 
positive attitude as liberal Jews toward modernity in general, it is 
surely appropriate to rely upon the findings of modern science, rather 
than upon tenuous analogies from traditional sources, in order to render 
what we must consider to be scientific judgments. To ask "who are this 
person's biological parents?" is to ask a scientific question whose 
answer is determined according to accepted scientific indicators; i.e., 
genetic testing. Hence, the biological parents of the child are those 
who donated the sperm and the egg from which he or she was fertilized.
In the event that a child is born to or raised by parents other than 
those who donated the sperm and the egg, he or she becomes the adoptive 
child of those parents. This does not present inordinate difficulties 
under Jewish law. As we have written elsewhere,28 adoptive parents are a 
child's ultimate parents; those who raise, care for, educate and love 
the child during his or her life assume full parental status. It is to 
them that the child owes the duty of honor and reverence.29 The child 
adopted by another couple has no legal or religious relationship to the 
donors of the egg and sperm, although for personal, medical, and genetic 
reasons the child or his/her guardian should be permitted to discover 
the identity of the biological parents at an appropriate time.
Conclusion. To summarize:
1. A human embryo or zygote is, like the fetus, a potential but not a 
legal person, and there is no explicit Jewish legal prohibition against 
its destruction.
2. In vitro fertilization is a legitimate medical therapy, offering 
realistic hope to many who seek to build families. Since the creation of 
multiple embryos is a necessary element of IVF, and since the 
preservation of "excess" embryos may constitute a serious impediment to 
the availability of this procedure, it is permissible to discard those 
embryos.
3. The embryo may be used for medical research, provided that it is 
handled with the proper respect and reverence.
4. The embryo may be offered to another couple. The child will be the 
biological offspring of the man and woman who donated the sperm and the 
egg. Those who raise the child are his or her "ultimate" and "real" parents.
NOTES
1 See the article by our colleague David Ellenson, "Artificial 
Fertilization (Hafrayyah Melakhotit) and Procreative Autonomy," in W. 
Jacob and M. Zemer, eds., The Fetus and Fertility in Jewish Law 
(Pittsburgh and Tel Aviv: Freehof Institute of Progressive Halakhah, 
1995), 19-38.
2 This fundamental question has never been addressed to or by the 
Responsa Committee. Therefore, while our she'elah proceeds on the 
assumption that the answer is affirmative, we find it necessary to fill 
this lacuna in our existing literature.
3 See Deut. 4:15, Lev. 18:5 and BT Yoma 85b; Isserles, YD 116:5.
4 M. Baba Kama 8:8; BT Baba Kama 91a-b; Yad Chovel 5:1l SA CM 426:31. An 
instance of unnecessary physical damage would be purely surgery 
undertaken for purely cosmetic reasons; see Teshuvot for the Nineties, 
no. 5752.7.
5 See the following responsa in Teshuvot for the Nineties: treatment for 
severe pain in terminally-ill patients (responsum 5754.14); medical 
experimentation under carefully controlled conditions (5755.11); on 
cosmetic surgery (5752.7); and abortion performed for the mother's 
"healing" (refu'at imo; 5755.13).
6 The mitzvah is pikuach nefesh, the saving of human life. See 
Nachmanides, Torat Ha'adam (Chavel ed.), 41-42, and SA YD 336:1.
7 This suggests that the definition of "disease" is largely a matter of 
social construction: that part of our biological or psychological 
systems is functioning "improperly" is a judgment we make based upon a 
conception of what "proper" functioning is.
8 Gen. 1:28; M. Yevamot 6:6; Yad, Ishut 15:1, and SA EHE 1:1. For Reform 
Jewish teachings concerning the mitzvah of having children, see Gates of 
Mitzvah, 11, and American Reform Responsa, no. 132.
9 Rav Chisda's position in the Talmud is cited as halakhah in Yad, 
Terumot 8:3.
10 Most halakhic authorities hold that there exists a prohibition (isur) 
against destroying a human fetus without sufficient cause, although 
there is a good deal of dispute as to the precise definition and legal 
basis of this prohibition; see R. A.S. Avraham, Nishmat Avraham, CM 
425:2, sec. 1, for discussion. As to the debate over what counts as 
"sufficient cause" or warrant for abortion, see our responsum 5755.13.
11 R. Ya`akov Emden, Resp. Chavat Ya'ir, no. 31; R. Yechiel Ya`akov 
Weinberg, Resp. Seridey Esh 3:127 (p. 341); R. Eliezer Yehudah 
Waldenberg, Resp. Tzitz Eliezer 7:48, ch. 1 (pp. 190-191).
12 R. Shmuel Halevy Wasner, Resp. Shevet Halevy 5:47. The permit to 
perform otherwise forbidden work (melakhah) on Shabbat or Yom Kippur in 
order to save a fetus is found in Halakhot Gedolot (Laws of Yom Kippur; 
Warsaw ed., 31c; ed. Hildesheimer pp. 319-320) and cited by Nachmanides 
(Torat Ha'adam, ed. Chavel, pp. 28-29), who applies it even to a fetus 
less than forty days old. This would seem to be a contradiction: if it 
is not forbidden to destroy a fetus at this early stage, on the grounds 
that it is not a "fetus" at all, how can it be allowed to transgress the 
laws of Shabbat, an otherwise capital offense, in order to save it? Yet 
this problem can be resolved, for even at less than forty days the fetus 
is still a life in becoming, and we are taught that the duty of pikuach 
nefesh, the saving of life, applies even to cases of safek, when we are 
uncertain that "life" can be saved by our action (BT Yoma 85b; see Resp. 
Seridey Esh loc. cit.). Moreover, we might also remove the difficulty by 
saying that the permit to violate Shabbat and Yom Kippur applies in fact 
to saving the life of the mother, not that of the fetus (Hil. Harosh, 
Yoma 8:13; R. Nissim Gerondi to Alfasi, Yoma, fol. 3b).
13 See Sefer Assia 8 (1995), 3-4. Halevy, it should be noted, does not 
express a clear opinion as to whether the procedure of IVF is itself 
permitted; he explicitly notes that his ruling applies only to 
individuals or institutions who "adopt the opinion of those who permit 
(the procedure)."
14 Techumin 11 (1991), 272-273.
15 "The fetus is not a legal person" (lav nefesh hu); see Rashi, BT 
Sanhedrin 72b, s.v. yatza rosho, and Sefer Me'irat Eynayim, CM 425, no. 8.
16 The language is purposefully reminiscent of that utilized by R. Ben 
Zion Meir Hai Ouziel (Resp. Mishpetey Ouziel 3, Choshen Mishpat, no. 
47), who permits abortion when there is a "slim pretext" (sibah 
kelushah) on which to argue that the procedure is necessary to safeguard 
the mother's health.
17 Although this remains somewhat controversial; see the discussion on 
artificial insemination in A.S. Avraham, Nishmat Avraham, EHE 1, pp. 5ff.
18 On medical experimentation in general, see our responsum 5755.11 and 
R. Walter Jacob, Questions and Reform Jewish Answers, no. 152.
19 Resp. Tzitz Eliezer 15:45.
20 Moreh Nevuchim 1:72.
21 BT Kiddushin 69a.
22 The child of two gentiles is their legal offspring; see Encyclopedia 
Talmudit 5:289-295. Indeed, the passage in BT Kiddushin says only that 
the child is not related to the Jewish father (see Rashi, s.v. kevelad 
bema`ey behemah damey); this does not affect the existence of yichus 
between the mother and the child.
23 See the articles by R. Zalman N. Goldberg and R. Avraham Kilav in 
Techumin 5 (1984), 248-267.
24 BT Yevamot 97b.
25 BT Yevamot 22a and parallels.
26 See R. Yehoshua Ben-Meir in Assia 8 (1995), 73-81 and 153-168: the 
texts support various conclusions: the child is the offspring of the 
biological mother; the child is the offspring of the birth mother; the 
child is the offspring of both; the child is the offspring of neither. 
Not surprisingly, he concludes that "this question requires careful 
analysis and decision by the leading authorities" (81).
27 See Ellenson (note 1, above).
28 Teshuvot for the Nineties, no. 5753.12.
29 See Ex. 20:12 and Lev. 19:3. A parent may waive the honor and 
reverence owed him or her by a child. The decision to allow one's 
biological child to be raised by others, though made for good and noble 
reasons, constitutes such a waiver.
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