By Rabbi Elchanan Poupko
The recent explosive story about a terrible IVF mix-up has sparked conversation about the need to have halachic supervision at fertility treatments. Some used this story to urge frum couples who are undergoing fertility treatments to make sure they have halachic supervision when going for fertility treatment. It is important to know that the opinions of Gedolei Haposkim is that while having supervision is a good thing, it is not a requirement. The reason? Switches are extraordinarily uncommon, which is why this recent story has made the news. In fact, it is more common for hospital staff to switch babies at birth than for there to be an IVF mix up.
For proper context, here is the story which was widely reported this past week:
“Anni and Ashot Manukyan had spent several months unsuccessfully trying to get pregnant through IVF when they received a bewildering message this April. According to a lawsuit filed yesterday, their clinic in L.A., CHA Fertility Center, needed the couple to come in immediately. When they arrived, they found out their son had just been born—to complete strangers, 3,000 miles away in New York City.
The Manukyans and the couple who had the baby in New York, as well as a third, unnamed couple, had all gone to CHA Fertility Center for IVF, and the clinic mixed up their embryos—according to separate lawsuits filed by the Manukyans and the New York couple, who are identified only by their initials, A.P. and Y.Z. Anni and A.P. had embryo transfers at CHA on the same day in August 2018. Anni’s was unsuccessful, but A.P. became pregnant with twins.”
Unquestionably a horrific story. With many millions of transfers, between the year 2000 and now there have been less than five cases of IVF switches that took place in the United States. There have been far far more cases of delivery room switches. In fact, about 1 in 1000 babies delivered to parents is switched, a mistake that is often corrected, but not always. While it may help for this too, no one suggests having halachic supervision in delivery rooms. We follow the halacha that such a mi’ut—a minority of cases—is not common, eino motzuy, and therefore gladly welcome all babies home. There are some cases of mamzerus as well, we don’t assume them to be common enough to impact the lives of others or to change the way people live.
This is why I was taken by surprise when a friend—a choshuveh rov— forwarded me an email that was sent out by a frum organization following last week’s headlines about the IVF mix-up which read:
“Stories like this one shake us up. While it is extremely rare for a clinic to mix up embryos, human error does happen, because people are, after all, human. And if you are going through fertility treatment yourself, your obvious concern is, “How can I make sure this doesn’t happen to me?”
The answer? Halachic supervision. “
There is no question that having extra checks and supervision is a positive thing, that is true in every field of medicine. The question at hand is though: is it halachically required?
Sure mistakes happen and supervision is commendable, but couples should think twice before assuming it is required, when in fact according to most contemporary poskim, and with the low rates of mistakes that happen, it is not. Sure, there are some poskim, for example within the Chabad community, who hold supervision is absolutely necessary, but many other poskim, such as Rav Moshe Shternbuch of the Edah Charedis, Rav Dovid Cohen, Rav Asher Weiss, Rav Zalman Nechemya Goldberg, Rabbi Avrohom Steinberg, and many other contemporary poskim, hold that Hashgacha is not required. They hold it is a good thing. If there is no major cost or harm you should have halachic supervision, but it is not required. Children are not Shwarma and fertility clinics are not eateries. There is no need to assume Hashgacha is required as a blanket and unanimous halacha. That is not halachically, factually, or hashkofically correct.
What then, is the downside of just assuming Hashgacha should be required at all times? There are several downsides.
Firstly, frum couples who live in areas where halachic supervision is not easy to come by—especially those living out of town—may not take the fertility options available to them, wrongly assuming they can’t go for treatments where there is no Hashgacha. Not all fertility clinics were created equal. Some couples may want to see someone with a subspecialty in a clinic with no supervision available. Assuming supervision is required may prevent them from going to a place they should be going to.
There are times when tznius considerations come into play and the value of tznius will override the commendability of having supervision. Another reason assuming supervision is required can have negative outcomes is with regard to procedures and treatments on Shabbos and Yomtev. There are times in which couples don’t have a choice and certain procedures must take place at a certain time. If a posek deems a procedure to be permitted on Shabbos or Yomtov, holding back from that procedure just because there is no available supervision can the wrong thing to do, not to mention to the potential for chillul Shabbos and Yom Tov which can come with the arranging of extra supervision. Being machmir on Hashgacha can result in major kulahs in other areas.
Frum couples of find themselves struggling with fertility issues often find themselves in the dark. It isn’t always easy to ask every question to a rov or posek and not every local rov or rebbe from Yeshiva are fully knowledgeable of the intricacy of these halachos. It is essential that no one narrow their options based on assumptions or information coming from special interest groups and to explore all possibilities.
My heart broke recently when I was approached by a couple of Bnei Torah, who were not able to have kids for a while, exploring their options for adoption. Like many I was also deeply distressed by the recent story of a couple from Eretz Yirsael who ended up in court and in places they should not have been, because of the far-reaching measures they got involved in so they can adopt, they all coming from a profound sense of desperation. Couples need to know that modern medicine offers a growing range of treatments and potential for those struggling with fertility issues. Whether it is more efficient IUI and IVF treatments, egg donations, surgery, surrogacy, or countless or options, couples should pursue whatever they see fit to resolve this situation. Of course, all should be in full accordance to halacha, but no one should make any assumptions that rule out any options, or withhold treatment in one place or the other because it is not “halachically supervised”. May the Zchus of the Teffilos and ma’asim tovim, and the Zchus Avos of Yisroel Rachmanim Beni Rachmanim help to bless everyone in Klal Yisrael with zara’ah chaya Ve’kayama and may everyone be zoche to see bonim u’vnei bonim oskim batorah u’bemitzvos.