Q&A: Halakhic Ruling Regarding Genetic Engineering
Halakhic Ruling Regarding Genetic Engineering
Question
Hello,
I saw that you briefly addressed questions of halakhic ruling regarding genetic engineering,
I am attaching a draft of my responsum on the subject, which I wrote בעקבות a summer program of Rabbi Aryeh Klapper.
I would be happy to hear what you think of it, if you have time to read it.
Thank you, and have a peaceful Sabbath,
Answer
Regarding your article: it was certainly interesting. In the first part, where you dealt with selecting an egg on the basis of sex, I think you did not sufficiently distinguish between moral considerations and halakhic considerations (in the third book I discuss this distinction very sharply). Beyond that, it seems to me necessary to bring in the Talmudic passage in Horayot regarding priority in rescue. There we see that a man takes precedence over a woman (because he is obligated in more commandments), and that means that a person is indeed a means for the fulfillment of commandments and not necessarily an end, as modern morality maintains. Prima facie, one should compare choosing one egg from among several eggs for fertilization to saving one person from among several people who are in danger (and in general, the proper comparison is not to murder but to failure to rescue. In the article you wrote that it is not comparable to murder, but you tied that to the fact that an egg is not a “thing.” In my opinion, even if it were a person, there would still be no place for comparison to murder. It is failure to rescue. And one could further distinguish between extracting the sperm and eggs and using them after they are outside the body). I discussed this in the book as well and more generally, but in my view this is a point that should have been addressed in the article.
The second part was original and fascinating; I mean the comparison to imposing liability on a person in his absence. But this too requires a great deal of discussion, and in the end I do not agree.
After all, the very act of bringing a child into the world can be interpreted as imposing a liability on him (“They took a vote and concluded: it would have been better for a person not to have been created”). So how is one permitted to bring him into the world? Apparently, parents are not prevented from imposing liability on their child, because he is considered his mother’s limb and his father’s extension. If so, shaping the child is not necessarily worse than bringing him into the world in the first place. But above all, in my opinion the rule that one may not impose liability on a person in his absence is not relevant here at all. There the question is whether the obligated party has acquired something or not, not whether it is permitted or forbidden to do this to him. The claim is that I do not function as his agent if this is a liability for him (unless, of course, he appointed me). But there is no statement here that I am forbidden to impose a liability on him, that is, that such an act is prohibited. Therefore, at most you could speak in terms of the law of damages, and even there one must discuss under which principal category or subcategory of tort this would fall, and as is well known there are many opinions about what prohibition is involved in causing damage beyond the obligation to compensate (which brings us to the issue of “wrongful birth,” but this is not the place to expand).
Parenthetically, I would say that in my opinion the comments of Malbim and the author of Akedat Yitzhak that you cited are incorrect. They assume that the law of conferring a benefit was at work there, but that is not so. The obligation at Mount Sinai is an obligation accepted by the community, and therefore anyone included in it, even those not yet born, is automatically bound by it. Otherwise you would have to ask how they swore at Mount Sinai on behalf of their children, since they had not yet come into the world and agency does not apply to them (similarly one can question the law of acting as their agents, which the medieval authorities expand to our own times, when there are no longer ordained judges, but this is not the place to elaborate). In general, the Rosh writes explicitly in a responsum (and it is brought in the Shulchan Arukh, Yoreh De’ah) that one cannot impose a vow or an oath on others, including one’s children (except for Samson-like Naziriteship, of course). Necessarily, then, this was not a matter of agency or legal acquisition on someone’s behalf, but of a communal decision, and all individuals included in the community are automatically bound by it. Just as a law of the Knesset binds all citizens even two hundred years later, when all the voters and elected officials are already dead, so long as the law has not changed. Much more could be said about this. And of course this is not comparable to the conversion of a child based on the consent of his parents (in the passage at the beginning of tractate Ketubot), because there it is the conversion of an individual person and not of a community, and that must be done through agency, so clearly it cannot be done on his behalf.
All the best, and have a peaceful Sabbath,
Discussion on Answer
My approach is that there is a very sharp separation. In the current book you can see this.
I do not think a person is a means, even though prima facie this seems to be the dispute in Yoma regarding violating the Sabbath to save a life: whether it is based on “and live by them,” in which case life seems to be the goal and the commandments are the means to live properly, or on the reasoning “violate one Sabbath for him,” from which it seems that life is a means for commandments. But I have already proven in several places that this is not so. Still, even if a person is not a means but an end, in my view your case is similar to rescuing one person from among several.
The statement that it would have been better for a person not to have been created is of course not binding, although from the Talmud it appears that both the School of Hillel and the School of Shammai agreed on it. In my opinion, it depends on each person’s outlook, whether it is good for him that he was created or not. But I brought it only to say that there is not necessarily a benefit here.
As for the prohibition on imposing liability, the words of Seridei Esh are astonishing. In Jewish law there is no prohibition on imposing liability. In Jewish law there are specific prohibitions, and one must discuss whether there is a prohibition based on the source brought for the matter (such as a category of damages and the like). Perhaps he means a moral prohibition, and then I return to my original point.
I did not understand the question from “one who hates gifts.” There the issue is not a prohibition on imposing liability, but simply that this is considered a liability for purposes of the law of conferring benefit. That is not what I was talking about.
I think I understand your criticisms better after finishing work on the third volume.
We disagree on several fundamental points, which in practice are hard to decide between,
and most of the discussion here did not touch on them directly, but only on their implications (for example: whether a fertilized egg is a thing).
That being the case, you see the question of sex selection as a case of rescuing one from among several—and I agree that this is the correct model according to your approach—
whereas I see it as a moral case involving the question of end or means (and as you showed, there are complicated cases about this in Jewish law).
Even if birth itself is not an absolute benefit, I do not think that opens a halakhic and moral door to imposing additional liabilities on children,
and there is no end to it, in either direction. And perhaps it is not right to infer from what is possible to what is impossible in cases of this kind.
I partially agree regarding Seridei Esh. There is no explicit prohibition against imposing liability or causing damage in Jewish law;
there are obligations to compensate or pay in certain cases.
Fair enough—perhaps he is speaking in moral language here,
and I do not mind saying that moral thought grows out of the halakhic conceptualization of liability and benefit in relation to will and consent.
Again, thank you very much for the response and the criticisms, and also for the opportunity to work on the book series!
Thank you very much!
I really appreciate the serious attention.
I am not very used to a mode of language that draws such a sharp distinction between halakhic language and moral language,
though it seems to me that I was fairly transparent about the fact that the central consideration is a moral-value one (and that in a certain sense it can be challenged, or one can ask about its normative status).
Your discussion in the book is definitely intriguing and challenging in that context.
I agree that the issue of rescuing or failing to rescue one from among several is more similar than murder,
though it is not entirely clear to me whether that necessarily assumes across the board that a person is a means, or whether one can relate to him that way in any case.
I do not think one can view a fertilized egg as a “thing,” and if one does, one runs into serious problems regarding the destruction of fertilized eggs and other related questions.
Since I do not see them as a “thing,” the discussion revolves around the relation to the potential for life within them, and from my perspective that is where the consideration of the person as an end comes in.
Regarding the second part—
do you see the statement “it would have been better for a person not to have been created” as a binding value? Do you agree with it?
And even if it would have been better for him not to have been created, I do not think that birth therefore affects our ability to impose liability on him anyway
(and it seems to me that the claim that the fetus is his mother’s limb does not justify that).
As for the prohibition on imposing liability,
prima facie you are certainly right: the rule speaks about a mechanism that either works or does not work, not about the plane of prohibition.
However, it speaks about reversible matters, things that can be canceled retroactively from the outset.
In addition, some halakhic decisors hold that “one may not impose liability” means that it is forbidden to impose liability, even with respect to someone not included in the rule itself—
for example: “And it is forbidden to cause liability to a person even if he is not a Jew,” Seridei Esh, vol. 2, end of sec. 61.
(And in addition, if every case of “imposing liability” required identifying a clear tort category,
why is it so obvious to many that “one who hates gifts shall live” is a sufficient reason not to confer a benefit? What damage is there in receiving a gift that you hate?)
The issue of wrongful birth really is a major elephant in the room here, and as you wrote, it is not a simple issue at all.
If one accepts my model, there is no need to resort to it.
I cited Malbim and the author of Akedat Yitzhak only to show that there are those who thought that the law of conferring benefit and imposing liability can also be applied to those who have not yet come into the world.
I do not think their description is correct regarding the case of that covenant (and you also addressed that in your book), but that was not my point in any case. And I think I demonstrated
the possibility of imposing liability or conferring benefit on those who have not yet come into the world from other sources as well.
Again, thank you very much, and have a good week,