Yossi SprungDue to tremendous breakthroughs in reproductive endocrinology and fertility treatment in the last several decades, many new diagnostic tools and therapeutic options are now available to make pregnancy and birth possible for couples who would previously have remained childless. However, for women with uterine factor infertility[1], the only real chance of motherhood has been through either adoption or a gestational host[2].
Today, there may be another possibility: uterine transplantation. Though this is not a new surgery – the first uterine transplant took place almost a hundred years ago – until recently, there have not been any successful pregnancies. During the last century many attempts were made, some of which resulted in miscarriages, others in emergency hysterectomy due to infections, and even death due to infections or rejection. However, in the last decade, women have successfully conceived and carried pregnancies to delivery after uterine transplants. The first report of live birth following human uterus transplantation was published in 2014, and, while not yet widely performed, an increasing number of deliveries are occurring each year.
Before discussing the Halachic permissibility of uterine transplants, we must establish two principles:
- Even if uterine transplants become widespread, eligible women will not be obligated to undergo them, even if they have no other way of procreating. This is because the process requires at least three surgeries (transplant, implantation of the fertilized embryos, and removal of the transplanted uterus after one or two pregnancies to avoid complications associated with long-term use of immunosuppressant medications), and other possible complications. Since women are not obligated in Pru u’Revu, they certainly have the right to refrain from the complicated and stressful process and its attendant risks.
- A child born to a woman who had a uterine transplant is certainly considered her child. Though there is a discussion among the Poskim as to the Yichus of a child born to a gestational carrier that hinges upon whether genetic material defines motherhood or gestation, in the case of uterine transplant, the recipient provides both the genetic material and the gestational environment. That the uterus came from another woman is irrelevant since the second woman carried and nourished the fetus throughout the pregnancy. Even from a scientific standpoint, the uterus is no more than an incubator – a protective environment where fetal development occurs. Therefore, there is no reason to consider the uterine donor to be the mother.
Moreover, the consensus of contemporary Poskim is that a transplanted organ is fully accepted by the body of the recipient, so it is Bateil and becomes an inseparable part of his body. If so, there is no basis for any connection between a child born from a transplanted uterus and the donor.
Granted, there is a dispute among the Poskim as to the Yichus of a child born to a woman who underwent an ovarian transplant. However, this bears little resemblance to a uterine transplant. The ovaries contain eggs with the donor’s DNA, and those obviously do not assume the “identity” of the transplant recipient. This is not the case with a uterine transplant, as stated above. Moreover, even regarding ovarian transplants, most Poskim hold that the recipient is considered the mother.[3]
Sirus
A more complex issue is that of Sirus – sterilization, in this case of the uterine donor. Below is a summary of the basic principles of the Isur of Sirus, with emphasis on the Isur as it applies to a woman.
The Gemara in Shabbos (110b) discusses drinking “Kos Shel Ikrin” (that can sometimes lead to Sirus) as a cure for different ailments. The Gemara implies that, according to the Chachamim, a woman may undergo Sirus since she has no obligation of Pru u’Revu.[4] Interestingly, the Rambam rules that a person who performs Sirus on a woman is “exempt”, which implies that it is Asur mi’d’Rabbanan (Hilchos Isurei Biah 16:11). This is also the conclusion of the Shulchan Aruch (E.H. 5:11):
It is forbidden to cause the loss of the procreative organs, whether those of a person, animal, wild animal, or bird… anybody who performs Sirus receives lashes Min haTorah in every case…[except for] one who performs Sirus of a female, whether human or [any] other species, who is exempt, though it is forbidden.
Nevertheless, in the following Se’if he rules:
Someone who gives a person or any living being Kos Shel Ikrin to drink in order to cause Sirus – [although] doing so is forbidden, he does not receive lashes for it. But a woman is permitted to drink the Ikrin so that she will become infertile and will not [be able to] give birth.
This Se’if seems to reflect the Gemara in Shabbos more closely. However, it is difficult to understand the distinction between Se’if 11 which rules that it is Asur mi’d’Rabbanan to perform Sirus of a female and Se’if 12 which permits a female to drink a Kos Shel Ikrin.
The Beis Shmuel (ibid. 14) and Taz (ibid. 7) answer that there is a difference between active Sirus which is forbidden even for women (as the Shulchan Aruch rules in Se’if 11), and Sirus that does not involve a direct act (e.g., drinking a Kos Shel Ikrin) which is permissible for a woman (as in Se’if 12). The Bach answers that Se’if 12 refers to Sirus performed for the purposes of Refua, such as to prevent a woman from suffering painful labor, which is permissible, but Se’if 11 refers to Sirus performed for other reasons which is forbidden.
As an interesting aside, many challenge the Beis Shmuel’s distinction between “active Sirus” and “Sirus that does not involve an act”, arguing that there is no direct act of Sirus possible for a woman. One cannot therefore distinguish between Se’if 11 and 12 on that basis. However, the Taz and Chasam Sofer (Siman 20) and other Acharonim agree with the Beis Shmuel, and, in fact, there are multiple forms of “active Sirus” of women, such as hysterectomy, oophorectomy, or tubal ligation.
The Bach adduces support for his position from Tosfos in Shabbos (ibid.) who state that “Sirus does not apply to a woman”. However, the Acharonim counter that Tosfos merely mean to contend that Sirus is not forbidden for a woman, not that Sirus is impossible. In fact, reading Tosfos this way (i.e., that they were referring to the Isur and not to the possibility of Sirus) would lead to the conclusion that there is no Isur of Sirus for a woman, however it is performed (since Tosfos are not discussing Kos Shel Ikrin), as noted by the Chida (Yair Ozen, Ein Zocher, Ma’areches 1:18).
We quoted the Shulchan Aruch and Rambam who appear to hold that “active Sirus” for a woman is an Isur d’Rabbanan. This, position appears to be contradicted by the following Beraisa in Toras Kohanim (Emor, 7):
How do we know that Sirus applies to females? The Torah states, “Ki Mashchasam Bahem, Mum Bam” – “for their corruption is in them, their blemish is in them” (Vayikra 22:25). R’ Yehuda says, it says “Bahem”, implying that Sirus does not apply to females.[5]
In other words, according to the Chachamim, Sirus for females is Asur mi’d’Oraisa but according to R’ Yehuda it is permissible. How then may the Rambam and Shulchan Aruch assume the intermediate position, considering it Asur d’Rabbanan?
The Magid Mishna explains that the Rambam must hold like R’ Yehuda, however, he holds that R’ Yehuda did not mean to permit Sirus on a female Lechatchila, just to say that it is not Asur mi’d’Oraisa. This is supported by the Tosefta (Yevamos 8:3) that does not state, “Sirus does not apply to females” like the Toras Kohanim, but that one is “exempt” for performing Sirus on females. However, the Taz (ibid. 6) maintains that the Magid Mishna’s explanation is difficult, given the wording of R’ Yehuda in Toras Kohanim.
The Smag (Lavin 120) suggests that the Machlokes between R’ Yehuda and the Chachamim was not about whether it is permissible to perform Sirus on females but whether an animal that underwent Sirus may be offered as a Korban. Thus, even if the Halacha follows the Chachamim, it may still be Asur d’Rabbanan to perform Sirus on a female.
The Gra, by contrast, holds that the Machlokes is about the permissibility of Sirus. He maintains that the Rambam rules like the Chachamim and that Sirus of females is Asur mi’d’Oraisa. Though the Rambam states that one is “exempt”, he does not mean that it is only Asur mi’d’Rabbanan. Rather, since it is only an “Isur Asei” – a prohibition derived by implication from a positive precept (“Mashchasam Bahem”), he uses the expression “one is exempt” rather than “it is forbidden”. (By contrast, the Isur to perform Sirus on a male is an explicit Lo Sa’asei – prohibition – “u’b’Artzechem Lo Sa’asu”.)
We have delineated three approaches to explaining the Rambam’s view of Sirus of a female:
- Magid Mishna: The Halacha follows R’ Yehuda that it is Asur mi’d’Rabbanan.
- Smag: Both the Chachamim and R’ Yehuda hold it is Asur mi’d’Rabbanan.
- Gra: The Halacha follows the Chachamim that it is Asur mi’d’Oraisa.
All three of these approaches assume that the Chachamim and R’ Yehuda are arguing about Sirus. However, there are two other approaches that suggest that the Machlokes revolves around a different issue.
- The Prisha (ibid. 30) notes that although women are exempt from Pru u’Revu they are obligated in the Mitzva of “Sheves” (the general obligation to contribute to populating the world). Therefore, the Rabbanan forbade them to undergo Sirus.
- The Taz and other Acharonim hold that a woman should not undergo Sirus because it is forbidden to wound oneself.[6]
Returning to the question of performing a uterine transplant. Would the removal of the uterus from the donor be considered Sirus?
The Sefer Even Yekara[7] (3:29) holds that removal of the uterus (or ovaries) is considered Sirus and is at least Asur mi’d’Rabbanan, if not Asur mi’d’Oraisa.
If the donor is already at the age of menopause there would not appear to be any issue of Sirus as she is considered an “Akara”. This appears to be the position of the Chasam Sofer (ibid.). This is particularly true according to the Prisha who holds that the Issur of Sirus of a female is that it prevents her from performing the Mitzva of Sheves. If she can no longer bear children, she cannot perform this Mitzva in any case. However, it is likely true even according to the Gra who holds that Sirus of a woman is Asur mi’d’Oraisa. (We should point out that a woman has the status of “Akara” even if she could theoretically become pregnant as a gestational carrier.)
[In addition, it is likely that even according to the Gra there is a distinction between the Sirus of a male and that of a female. The underlying reason for the Isur Sirus of a female is that of destroying the potential to give birth. If so, where the purpose of removing her uterus is to allow another woman to give birth, it cannot be defined as a destructive act. See the Shu”t Cheshev haEfod[8] (2:61) who makes a similar argument in another context. However, this argument can definitely not be used to allow an act that may be Asur mi’d’Oraisa.]
Therefore, it would seem to be preferable to choose a donor who has reached menopause. [In fact, it would be even better to accept a uterus of a Nachris as the majority of Poskim hold that there is no Issur of Sirus for a Nachris.] It would also be better that the procedure be performed by a Nachri.
According to the Poskim that there is an Isur of Sirus of a female, one cannot clearly permit taking a uterus from a woman still capable of childbearing. We should also point out that although the majority of Poskim hold that Sirus is only Asur mi’d’Rabbanan, many hold that one should be concerned for the position of the Gra, as his position is implied by Chazal. (See, for example, the Igros Moshe, E.H. 3:12.)
However, according to those who hold that the Isur is only due to Sheves or to the Isur of wounding oneself, there may be more room for leniency in allowing a young woman to donate her uterus.
Chavala
Regarding the Isur of wounding oneself (Chavala), it seems obvious that this would not apply in a case of a uterine donation. The recipient is certainly permitted to undergo the procedure as it is a matter of Refua, like any other surgery. It is certainly better than cosmetic surgery.
The donor also likely does not transgress the Isur. The Rambam rules that one is only liable for making a wound when it is “Derech Nitzayon”, in a manner of fighting (Hilchos Chovel u’Mazik 5:1). The Acharonim rely on this condition l’Halacha (see Igros Moshe, C.M. 2:66 who uses this condition to permit cosmetic surgery, and Yabia Omer 8, C.M. 12). The basic premise is that if a wound is not made for the purpose of causing pain or injury it is permissible (Kovetz Hearos 70. It is also known that Rav Chaim Brisker held this view.) Clearly, in our case the donor is not wounding herself “Derech Nitzayon”.
Sheves
First, we should point out that although the Prisha clearly assumed that Sirus of a female would be an abrogation of the Mitzva of Sheves (his source appears to be Tosfos in Gitin 41b), this is not agreed to by many Acharonim. The Pnei Yehoshua (Gitin ibid.) asks how Tosfos knew that a woman has a Mitzva of Sheves, see also the Beis Shmuel at the beginning of Even haEzer, who says that it is subject to a Machlokes Rishonim.
In addition, even if a woman does have a Mitzva of Sheves, it does not seem obvious that giving her uterus to another woman so that she can give birth can be considered to be abrogating the Mitzva. However, this argument doesn’t have any precedent or support in the Poskim.
Therefore, the simplest approach would be to take a uterus from a woman who has already given birth. (In any case, this is dictated by ethical practice.) The donor has thus already fulfilled the Mitzva of Sheves and there would be no Isur of Sirus. On this basis, the Atzei Arazim[9] answers how a woman is permitted to drink a Kos Shel Ikrin even though she is obligated in Sheves. She may only do so if she has given birth previously (see Tosfos ibid. 110b, s.v. “v’haTanya” in this regard, relating to a man).
[In any case, there are some women who are exempt from the Mitzva of Sheves, such as those who experience severe postpartum depression or other pregnancy-related complications. A Rav should be consulted in all such cases.]
To summarize, the ideal approach is to choose a donor who is a Nachris or at least a woman who has already reached menopause. There are some who hold that it is even permissible for a young woman, as explained above. Questions in this regard should be addressed to the Poskei haDor. To the best of our knowledge, no Teshuva has yet been penned about this subject.
[1] [Editor’s note: This can be either congenital absence of the uterus, a condition known as Mayer-Rokitansky-Küster-Hauser (MRKH) syndrome, or acquired uterine factor infertility due to hysterectomy or scar tissue, fibroids, radiation damage, or other injuries to the uterus that prevent pregnancy.]
[2] [Editor’s note: Colloquially referred to as surrogate pregnancy, although gestational host is the preferred term.]
[3] There is a great deal of discussion on this subject, however, citing sources is beyond the scope of this essay. See Tzitz Eliezer 7:48 (Orchos Mishpatim 5), which lists the Poskim that discuss this.
[4] This essay will not examine the connection between the Isur of Sirus and the obligation of Pru u’Revu, though it is necessary to understand the Sugya and the Rishonim in Shabbos.
[5] [Editor’s note: “Bahem” is masculine, and R’ Yehuda interprets the use of “Bahem” instead of the feminine “Bahen” as indicating that the Isur does not apply to women.]
[6] The problem with the Prisha is that it does not explain why a woman may drink a Kos Shel Ikrin. The problem with the Taz is that this would not explain why there is also an Isur to perform Sirus of an animal. Further discussion is beyond the scope of this essay – see the Taz, ibid. 5 and Minchas Chinuch 291:9.
[7] R’ Binyamin Aryeh haKohen Weiss zt”l (1842-1912), Av Beis Din of Chernovitz.
[8] R’ Chanoch Dov Padwa zt”l (1908-2000), Av Beis Din of Hisachdus Kehilos haCharedim (UOHC) of London, 1955-2000.
[9] R’ Noach Chaim Tzvi Berlin (1733-1801), Rav and Av Beis Din of Altona-Hamburg-Wandsbek.
Yossi Sprung
