by Peter S. Knobel - Spring, 1998

Published in the Spring 1998 issue of Manna, the quarterly journal of the Sternberg Centre for Judaism at the Manor House and of the Manor House Society.

Technological advances are constantly and with increasing rapidity transforming science fiction into ordinary living. This is especially true in biotechnology which has made it possible for us to cure diseases and treat conditions which were fatal a few short years ago. Our ability to prolong life and postpone death present enormous ethical challenges. The manner in which we respond to these and a myriad of other questions will determine the quality of the society of the future which we will create.

As Jews, we are the heirs to a rich ethical tradition which is enshrined in the panoply of our sacred texts. Over the years, individual rabbis -- and now committees of rabbis -- seek to respond to ethical and ritual queries in carefully reasoned reflections on these texts. Even in the past there were always instances in which existing rabbinic texts did not address directly the problem on which the rabbinic decision maker was expected to adjudicate, because the specifics of the situation were unknown to previous generations. This difficulty increases with growing rapidity as the pace of technology extends the range of the possible. Therefore, he, and now she, uses analogical reasoning to extract principles which apply to the new situations.

Most of the decisions have been reactive rather than proactive or anticipatory. Professor Anne Reichmann Schiff, in a probing article on Artificial Insemination by Donor, has written:

The law's response to the new reproductive practices to date has generally been reactive rather than proactive. Too often the legal approach in this area has been one of "crisis management," in which laws are formulated in response to specific fact situations that require speedy resolution. This path has failed to acknowledge that what is required is a paradigmatic shift in legal thinking. What is needed today is a coherent legal framework that is comprehensive in scope and sensitive to the ethical and societal impact of this reproductive era.²

Her observation applies not only to secular law but to the legal and ethical probing of liberal Jewish thinkers. A progressive halakhah must not only answer the questions asked but must anticipate the scientific and societal developments which are largely unprecedented and establish a framework for determining what is obligatory, permissible and prohibited.³

Writing in February 1978, Dr. Walter Jacob addressed the question of cloning in Responsum #20 Genetic Engineering in his volume Contemporary Reform Responsa.⁴ Long before Dolly was a glint in her creator's test tube, Walter Jacob was being asked to speculate on `what if...?' The birth of Dolly the sheep in Scotland has created a firestorm of conflicting opinions. For some it is a great boon; for others their worst nightmare has been realised. If we can clone sheep, the argument goes, it will not be long before we can clone human beings.⁵ While we have many technical hurdles to overcome, the cloning of humans is more than Frankensteinian fantasy. There have been many voices that have called for a ban on the cloning of humans and, in the United States, a halt to federally funded research. We wonder: Are we on the verge of a new era of medical progress and economic prosperity or is this the beginning of the end of human life as we know it? If we can reproduce ourselves exactly from a single cell, are we in danger of disconnecting reproduction from love and as well as from sexual intercourse? What will constitute a family in this brave new world? Who should be cloned? Imagine a world of thousands of Einsteins or Eyal Berkovics or of Adolph Hitlers as imagined in Ira Levin's novel The Boys from Brazil. Such selective breeding presents us with the potential dangers of cloning on the basis of social worth i.e. societal need, economic gain or diabolical plan. This represents the ultimate commodification of individuals; clones for sale, manufactured on demand.

Selective breeding conjures images of Nazi eugenics. However, because a technology is subject to misuse and abuse does not necessarily justify its banning. Selective breeding of animals and plants as well as newly created microbes and species have created heartier crops, more efficient techniques for producing new medicines, and cows which give more milk. Genetic engineering and new reproductive techniques have had innumerable positive results and will prove increasingly beneficial in the future.

Our desire to improve on nature is an example of the creativity that we share with God. Elliot Dorff,⁶ reminds us:

Adam and Eve are put into the garden to "work and preserve it." (Gen. 2:15) As long as we preserve nature, then we have the right and the duty to work with it to fulfil human needs. In a parallel Talmudic phrase we are God's partners in the ongoing work act of creation when we improve the human lot in life.

The question is, how far should we go?⁷ Azriel Rosenfeld in his article "Judaism and Gene Design" discusses the permissibility of genetic surgery to correct pre-natally serious defects even if the surgery puts the foetus at risk and then suggests:

"Our sages recognise and, perhaps, even encourage the use of pre-natal (or better pre-conceptional) influences to improve one's offspring."

As an example he cites the following story:

Rabbi Yohanan (who was renowned for his beauty) used to go and sit at the gates of the place of immersion, saying: "When the daughters of Israel come out from their required immersion, they look at me and may have sons who are as handsome as I am and as accomplished in Torah as I am.⁸

Rosenfeld says:

This concept might well be extended to allow the use of gene-surgical techniques to produce physically and mentally superior children.

This certainly smacks of eugenics. While it can be couched in phrases like tikkun olam (repair of the world) or divine-human partnership in the perfection of the world, it is fraught with danger. A good thing, namely the correction of a serious illness or physical defect, is transformed into selective breeding. To deliberately breed for intelligence or physical beauty may be "playing God" in the negative sense of that term.

Rosenfeld continues:

On the other hand, turning a person into a monster by surgical means would very likely be forbidden, unless it was necessary to save his life, and creating a monster through gene surgery might thus also be forbidden.

The word "might" is disturbing. While the issue of eugenics raises significant concerns, let us return to a prior question from a Jewish point of view. Is it permissible to clone human beings? If it is permissible, under what circumstances and with what safe- guards?

In Dr. Jacob's responsum his questioner asks:

Would a person produced through genetic engineering rather than natural reproduction possess a soul? Does a clone have a soul?

Dr Jacob discusses Jewish views of ensoulment and cites the legend of the golem, a creature created of wood or clay through the use of magical incantations and the insertion of the divine Name in its mouth or the placement of the Name on its forehead. In determining the status of the clone, he cites a responsum of Zvi Ashkenzi and Jacob Emden, who rule that a golem cannot be counted in a minyan implying that a golem is not fully human and therefore has no soul.

In two very intriguing recent articles¹⁰ Professor Byron Sherwin explores in depth the status of the golem and the moral implications of the golem legend. He points out that in many versions of the golem legend the word golem is not used but "man created by means of Sefer Yetzirah."¹¹ He makes a distinction between artificial life and artificially created life. He distinguishes between golems of the past and modern golems. He analogizes the clone with a fully developed golem and points out that medieval texts use the term golem for embryo and he also explores the midrashim in which Adam was originally created a golem and only at the final stage of creation does he become fully human.

It is clear that genetic engineering, cloning artificial embryonisation, artificial insemination, and in vitro fertilisation all have their positive side even if darker possibilities always remain. The rabbis, in their discussion of artificial life, recognised this. The character of the creator is crucial. Judaism does accept the concept that scientific experimentation is morally neutral but it demands of the scientists that they be responsible for the results of their experiments. Scientific research may be understood as having Faustian potential for the demise or domination of humankind or it may be viewed as one more expression of human creativity. It is either the work of the devil in which one seeks to supplant God or it is an example of imitateo Dei, one aspect of what it means to be created in the image of God. As Bryon Sherwin notes:

Classical Jewish literature stresses these features of the creative act...moral, technical and intellectual prerequisites of one who would deign to create life. Furthermore Jewish literature refuses to sever creature from creator. Not only is the creator responsible for what the creature does but the creator is responsible for what the creature becomes. The creature reflects not only technical skill but also the moral nature of its creator.¹²

It may be argued that God deliberately left the world incomplete for us to complete it. In Reform Judaism, our concept of tikkun olam means that we will use our God-given talent as being created in the divine image to correct the flaws and repair the fissures in creation. Our creative ability is what we share with God. The Talmud teaches that our ability to create is limited only by our sinfulness.¹³

Dr Jacob continues:

"We are, however, concerned with an entirely new being which might conceivably begin its life in a test tube from a fertilised ovum or a variety of genetic material and would be capable of sexual reproduction. We shall not discuss the desirability of such an undertaking, but at some time in the future it will, undoubtedly, occur with or without approval. We could well consider such a being to have a soul. It will have been formed from human material despite all genetic alterations. Its development will have taken place in an artificial environment rather than the womb, but at some point it will emerge as a human being. Hopefully, it will then not be enslaved to its maker or master, but will develop independently as other human beings. Unless such possibilities of independent intellectual and moral development are genetically removed, this would be a human being."

If a clone is not granted the status of human being, it could become a being which is enslaved to its creator like Golem of Prague or it could potentially become simply a source of spare parts for its older sibling.

Recently there was a case of a couple that conceived a baby for the purpose of providing a bone marrow transplant to an older child. While it seems clear to me that such an act would constitute an act of pikuach nefesh -- saving a human life -- and therefore, be permissible, there are some significant medical concerns especially about the lack of ability of the younger sibling to consent to a procedure that has some risks. There are also grave psychological concerns whether the procedure succeeds or fails. We must also be concerned about the precedent that this establishes and how much risk a parent could subject a minor to for the benefit of another child or for that matter for the benefit of the parent.

On the one hand, if we could clone a single organ that was a perfect match and be in unlimited supply, what a boon it would be to people who require transplants.¹⁴ On the other hand, if we clone an embryo, use it and then abort it so that it can serve as a source of spare parts, we have entered a moral waste land. It should be noted that it is not clear that under Jewish law such a scenario would be prohibited.¹⁵ As we develop the techniques for cloning human beings we will have to consider many factors, e.g., what would constitute good results and bad results; what do we do with our mistakes?

How a human being is created does not change his or her status. Artificially created life is not artificial life. This is the identical point that Walter Jacob makes near the end of his responsum that the newly created being will have a soul and is entitled to full protection.

It is clear in Jewish law that we are permitted to go to great lengths in order to heal or to preserve human life. One is not only permitted but also required to perform prohibited activities on Shabbat to save a life. Cloning may not be the preferred technique for solving the problem of childlessness. However, since peru urevu, procreation, is such an important mitzvah, cloning would be permitted. Cloning raises many of the same ethical and halakhic issues as the other new reproductive techniques. Since the cloned embryo would still, for the conceivable future, have to be implanted into a woman's womb, issues of maternity as well as the potential exploitation of women who are paid to be hosts for clones, require consideration. "Hertz Rent A Womb" could become a profitable and exploitative enterprise n

¹ This article is an abbreviated version of "Is One of Me Enough? To Clone or Not To Clone That Is The Question?" In honour of Rabbi Dr Walter Jacob's retirement delivered in Pittsburgh, Pennsylvania on June 2 1997.

² Anne Reichman Schiff "Frustrated Intentions and Binding Biology" Duke Law Journal Vol.44 No 3 1994 p.570.

³ Prof. Byron Sherwin of Spertus Institute of Jewish Studies in an April 16, 1997 address to Chicago Board of Rabbis stated "Just about any halakhic problem may be presented in the following way: here are three relevant categories. Which one applies in this case before us? These three categories are hovah, assur and reshut. These categories may be viewed as a spectrum. On one side is hovah -- the action is proscribed, required. On the other side is the opposite, assur -- the action is proscribed -- forbidden. In the middle is a spectrum of possibilities where, under certain circumstances, the action is permitted. This simple structure, it seems to me, can be applied to about any issue from kashrut to abortion, from issues in business ethics to sexual ethics."

⁴ (1987) Pp. 32-34.

⁵ Since the announcement about Dolly there have been many reports of the successful cloning of other mammals.

⁶ From a typescript of Dr Dorff's March 14, 1997 testimony before the President's National Bio Ethics Advisory Committee.

⁷ Tradition Fall, 1972, reprinted by Fred Rosner in Jewish Bio-Ethics (1979) p.403.

⁸ Berakhot 20a.

⁹ Azriel Rosenfeld in Jewish Bio-ethics p 403.

¹⁰ "Moral Implications of the Golem Legend" in his In Partnership With God: Contemporary Jewish Law and Ethics 1990 pp. 181-207 and "The Golem Zevi Ashkenazi and Reproductive Biotechnology" Judaism pp 314-322.

¹¹ Sherwin "Moral Implications" p.194.

¹² Implications of the Golem Legend p.204.

¹³ Sanhedrin 65B Rabba said, If the righteous desire it they could create worlds, for it is written, "But your iniquities have distinguished between you and your God (Isa 59:2) Rabba created a man and sent him to Rabbi Zera. Rabbi Zera spoke to him (the artificially created man) but received no answer. Thereupon he (Rabbi Zera) said to him (the artificially created man); You are from the companions. Return to your dust. Rabbi Hanina and Rabbi Oshaia spent every Sabbath studying the Sefer Yetzirah (The Book of Creation) by means of which they created a third grown calf which they ate. The artificially created man is flawed not fully human as the commentators¹³ discuss and therefore Rabbi Zera is permitted to kill him without being subject to the charge of murder. However, the flaw is only because of limited righteousness of Rabba. This does not mean that a more righteous person might not be able to create artificially a human being. In the meantime the Talmud reports with approval the fact Hanina and Oshaia produce and eat a third grown calf by means of the same book. It is clear creativity is a trait we share with God Moral Implications p.196.

¹⁴ Recent press accounts in the London Jewish Chronicle quote Orthodox authorities as stating the cloning is not prohibited by the halacha and Lord Jakobovitz speaks positively of the possibility of cloning single organs.

¹⁵ The status of the foetus as potential rather than actual life as well as the time of the abortion would be factors in decision making. However, a full discussion of this matter will take us too far afield.

Rabbi Dr. Peter Knobel was born in Newark, New Jersey and educated at Hamilton College, HUC-JIR, and Yale. He is senior rabbi of Beth Emet, The Free Synagogue, Evanston, Illinois and is currently spending a sabbatical in leafy Weybridge. He chairs the Liturgy Committee of the CCAR.

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