Advances in genetic analysis and its medical applications are bringing unprecedented, if uneven, change to the world of Jewish law. Most often, the matter of genetics is considered in the context of issues on either end of life’s spectrum: those that relate to fertility and to the identification of post-mortem human remains.
“DNA analysis is gradually meandering its way through the halachic literature,” said Dr. Edward Reichman, an Orthodox rabbi and associate professor of emergency medicine at Albert Einstein College of Medicine, where he is also an associate professor of bioethics and education.
“Science has opened up a huge area of research and treatment in the area of the genetic code that just didn’t exist 25 years ago. All of those developments have required authorities in Jewish law to consider what effect it has on their approach,” said Rabbi Avram Reisner, spiritual leader of Baltimore’s Congregation Chevrei Tzedek and a bioethicist who sits on the Conservative movement’s Committee on Jewish Law and Standards.
DNA identification of post-mortem remains was used in the months following the September 11 terrorist attacks when about a dozen women whose husbands had been killed appealed to the Beth Din of America, a leading Orthodox rabbinic court, to free them from their potential status as agunot, literally “chained” women who are unable to remarry.
A woman can become an agunah when her husband refuses to give her a Jewish divorce, when a husband disappears or when there is no proof of his death. These women’s husbands had perished in the attack that day, some in the commercial airplanes commandeered by the terrorists and others in the buildings they hit. Since visual identification of many of the dead was impossible, the Beth Din of America used DNA technology to positively identify the murdered men from tiny tissue samples.
“That was a revolutionary thing,” said Rabbi Gedalia Dov Schwartz, the court’s head. However, he said, DNA identification is not routinely needed, saying, “It is used in isolated cases.”
It has been used more frequently in Israel, a country that, because of suicide bombings, has faced the need for identification of otherwise unidentifiable human remains.
Most rabbinical authorities there, however, allow it just as a way to confirm identity and not as a primary means of identifying the dead, said Rabbi Moshe Tendler, a leading expert in Jewish medical ethics and a professor at Yeshiva University, where he also serves as a rosh yeshiva at the rabbinical school.
One area in which DNA technology should be applied — and is not yet — is in the supervision of kosher food, Tendler said.
Lots of money could be saved by doing spot checks of fish that is labeled kosher to make sure that it is salmon, for instance, and not a non-kosher variety, in place of sending kosher supervisors to China, he said. It has not yet become routine practice, Tendler said, because of “rabbinic inertia.”
Jewish legal authorities have embraced DNA analysis, however, in the field of assisted reproductive technology. Change is more quickly embraced in fertility medicine because of traditional Judaism’s pro-natalist perspective, experts said.
This embrace of DNA analysis is seen in the now-common pre-marital genetic screening for genetic diseases. If potential mates are both found to be carriers of mutations for these serious diseases, they will generally not proceed toward marriage.
“Risk management is part of Halacha, and that would include this screening,” Tendler said.
Once a couple is married, however, if there is known to be a significant risk of having a child with a serious genetic condition, pre-implantation genetic diagnosis is increasingly used.
PGD assesses the genetic material from one cell of a blastocyst for mutations that cause a variety of inherited diseases, like Tay-Sachs, and traits, like gender, before implanting developing embryos into the woman who will carry the pregnancy.
Embryos free of mutations can be selected for implantation, and the others discarded.
These embryos have the status of “reproductive material” but not of pregnancy, and discarding them is not in any way considered abortion, said Rabbi Michael Broyde, a professor of law at Emory University and a member of the Beth Din of America.
“In what circumstances and for what traits can PGD be used? This is an ongoing question in Halacha,” he said. “The technology will make this harder and harder to decide. This is the next issue on the horizon.”
The technique is being used not just with life-threatening illnesses, like Tay-Sachs, but also to identify mutations for illnesses that destroy quality of life, which is acceptable in Jewish law, Broyde said.
PGD should not be used to select for what he called “social” traits, like the size of one’s nose or ears, he said, which is still only theoretically possible anyway.
But it should be used to identify illness, even those that are only disabling. “Non-life-threatening but debilitating illnesses are very serious,” Broyde said. “People are looking to have healthy children, and healthy children sound like a good idea.”
Gender selection is not generally permissible according to Jewish law, said Broyde and others, even to fulfill the obligation to “be fruitful and multiply,” which is generally interpreted by traditional decisors of Jewish law to mean that couples should try to produce at least one boy and one girl.
There was one case in Israel, however, where a religious couple was authorized by rabbinical authorities to sex-select in order to have a girl. The would-be father was a kohen, or member of the priestly class, and did not produce sperm, according to the Israeli newspaper Haaretz. They received permission to use donor sperm and to use PGD to select only female embryos for implantation so that there would not later be questions about whether or not a male child would or would not have the same status as a kohen as his father.
One area of Halacha in which there has been resistance to using genetic analysis is as a way to prove paternity, Tendler said.
Children born of adulterous or incestuous relationships are considered in Jewish law to have the status of mamzer, or bastard, something that the Israeli rabbinate has elected not to confirm or disprove with the use of DNA testing for paternity.
While the reasoning behind the rabbinate’s decision has not been announced, unofficially, Tendler said, he has been told that if such testing were approved, the rabbis are concerned about the number of cases of mamzerut that might be revealed. “They don’t want to let it loose,” Tendler said.