I. JUDAISM

The laws against incest and consanguinity in the Old Testament would seem to have a rationale in eugenics, although this is never specified in the biblical text. The traditional commentators, too, advert only to the natural repugnance against incest. In the Talmudic discussion as well as in the legal codes, the subject is treated as a sexual offense, involving a breach of morality rather than a eugenic error. (The Talmud is the repository of rabbinic exposition of biblical law and teaching, spanning more than five centuries. The legal codes are based on the Talmud and on subsequent development of the law, such as in Responsa, formal opinions rendered by rabbinic authorities in response to new case-law inquiries.)

Even bastardy is a moral rather than a eugenic category. The mamzer (in Jewish law, the product of an adulterous or incestuous liaison, not of a relationship between two persons who are not married to one another) is not legally ill-born; his or her status is compromised only legally and socially, rendered so in punitive or deterrent judgment against parents not free to have entered the relationship. But no difference obtains between the mamzer born of adultery—even a technical adultery, such as when the document of divorce for the mother's previous marriage was impugned—and the mamzer born of incest. Hence, no eugenic motive can be assigned here.

A man "maimed in his privy parts" bears the same legal disabilities as the mamzer. Thus, a man of "crushed testicles or severed member" is excluded from "the congregation of the Lord" (Deut. 23:2). This verse is interpreted to mean only that he may not enter into conjugal union with an Israelite woman. Thus, the castrated male is under the ban because the act of castration is forbidden. But one "maimed in his privy parts" as a result of a birth defect or disease, as opposed to one castrated by his own or another's deliberate assault, is free of this disability. The legal situations were thus analogized: "Just as the mamzer is the result of human misdeeds, so only the castrated one who is such as a result of human misdeeds is to be banned." Since that distinction is made in both cases, and since the banned mamzer and the castrated are permitted to marry, for example, another mamzer or a proselyte, it must be concluded that moral outrage and punitive judgment rather than eugenic considerations are operative.

Eugenics, in the sense of choosing a marriage partner with the well-being of progeny in mind, is more clearly present in Talmudic counsel and legislation. A man is counseled to choose a wife prudently, and guidance is offered in doing so in accordance with the intellectual and moral virtues of the prospective bride. And since, we are told, a son, for example, normally takes after his mother's brothers, a man should regard the maternal uncles in making his decision (Bava Batra, 110a). A hidden physical blemish in a spouse is grounds for invalidating a marriage, unless the other spouse can be presumed to have known of it in advance.

Heredity as a eugenic principle takes its legal model from rulings with respect to circumcision. A male infant whose two brothers died possibly as a result of this operation may not be circumcised. He is deemed to have inherited the illness (probably hemophilia) that proved fatal to his two brothers. The Talmud goes on to say that an infant whose two maternal cousins showed that weakness may not be circumcised either. That is, statistical evidence yielded by two sons from the same mother can also be reflected in two sisters of that mother (Yevamot, 64b). Coming from Talmudic times (before 500 c.e.), this is a remarkably early recognition that hemophilia is transmitted through maternal lineage—in itself a significant eugenic discovery.

The statistical evidence or the presumption of adverse hereditary factors in a third family member, when those factors are seen to exist in two others, thus becomes the basis of Talmudic laws of eugenics. With modern laboratory means to determine the presence of these factors, the principle of course operates even sooner, without waiting for statistical evidence in two members. The Talmud rules that one may not marry into a family of epileptics or lepers (Yevamot, 64b) or—by extension—a family in which tuberculosis or any similar disease appears in multiple members. This may be the first eugenic edict in any social or religious system.

The pure "heredity" underlying this recommendation is not unanimously agreed upon. While one view in the Talmud attributes the transmission of characteristics in the pre-Mendelian age to heredity, another view sees it as "bad luck." In a Responsum where the questioner considered abortion because the mother was epileptic, the rabbi responded that the latter of the two views stated above may be the right one, and that fear of bad luck is an inadequate warrant for abortion (Feldman, 1968).

In an earlier context, the Mishnah (the foundation layer of the Talmud) speaks of the faculties that a father bequeaths to his son: "looks, strength, riches, and length of years" (Eduyot, II, 9). Here, too, the commentaries align themselves on both sides: one sees the bequeathing of faculties as a natural hereditary process, the other sees them as divine reward for the father's virtues.

Two other Talmudic ideas with eugenic motifs are reflected in current practice. In the interests of fulfilling the injunction to "love one's wife as much as himself and honor her more than himself," a man is advised to seek his sister's daughter as a bride; his care for her will be the more tender due to his affection for his own sister. Yet in the thirteenth century, Rabbi Judah the Pious left a testamentary charge to his children and grandchildren that became a source of guidance to others on the level of precedent for subsequent Jewish law. In this famous testament, he advises against marriage with a niece because it may have adverse genetic results. Modern rabbinic authorities dismiss such fears as unjustified unless they are medically warranted.

A second point is a Talmudic notion that eugenic factors operate in intercourse during pregnancy. Conjugal relations, we are told, should be avoided during the first trimester as "injurious to the embryo"; but they are encouraged during the final trimester as desirable for both mother and fetus, for then the child is born "well-formed and of strong vitality" (Niddah, 31a). A medieval Jewish authority makes the matter a point of pride in comparative culture: the Talmud recommends coitus during the final trimester, whereas the Greek and Arab scholars say it is harmful. Do not listen to them, he says (Responsa Bar Sheshet, no. 447). Nonetheless, the Talmud prohibits the marriage of a pregnant or nursing widow or divorcee. In the case of a pregnant woman, the second husband, it is suggested, may be less considerate of a fetus fathered by another man and may inadvertently damage it through abdominal pressure during intercourse (Yevamot, 36a). In the nursing situation, the new father may fail to take the necessary steps to supplement the diet of his stepchild (it is assumed that a pregnancy diminishes the mother's milk). And a pregnant woman who feels an urgent physical or psychological need for food during the Yom Kippur fast is to be fed for the sake of her fetus's welfare as well as her own (Yoma, 82a).

More a matter of preaching than of law is the notion that defective children can be the result of immoral or inconsiderate modes of intercourse—an idea expounded but ultimately rejected by the Talmud (Nedarim, 20a). Yet in more modern times, the Hasidim (pietistic Jewish groups with a mystical orientation) maintain that spiritual consequences of the act are indeed possible; that if a man has pure and lofty thoughts during or preparatory to cohabitation, he can succeed in transmitting to the child of either sex an especially lofty soul. Hence dynastic succession of leadership, presuming the inheritance of that loftier soul, as opposed to democratic selection, obtains among Hasidic groups.

A study of biblical and Talmudic sources written by Max Grunwald in 1930, cited by Immanuel Jakobovits, discerns a broad eugenic motif. Grunwald writes that Judaism

quite consciously strives for the promotion of the quantity of progeny by the compulsion of matrimony, the insistence on early marriage, the sexual purity of the marital partners and the harmony of their ages and characters, the dissolubility of un-happy unions, the regulation of conjugal inter-course, the high esteem of maternity, the stress on parental responsibility, the protection of the embryo, etc. To be sure, there can be no question here of a compulsory public control over the health conditions of the marriage candidates, but that would positively be in line with the principles of Jewish eugenics: the pursuit after the most numerous and physically, mentally, and morally sound natural increase of the people, without thinking of an exclusive race protection. (p. 154)

Although abortion is warranted primarily for maternal rather than fetal indications, screening of would-be parents for actual or potential defective genes, such as in Tay-Sachs disease, would, like premarital blood tests, be much in keeping with the Jewish traditional eugenic concern. Such genetic screening is, in fact, facilitated by a unique computerized system under the auspices of the New York-based Dor Yesharim (Generation of Upright [Descendants], from Psalms 112:2). Young men and women diagnosed as Tay-Sachs carriers are identified by code number. When marriage is contemplated, the couple is alerted to the fact that both are carriers, with one chance in four of a homozygous fetus, so that marriage plans may be reconsidered. Besides Tay-Sachs, which is fatal to the child by about age five, nonfatal disabilities have been added to Dor Yesharim's data base.

Although surrogate parenting and artificial insemination create social and family problems, the conceptional procedures that make them possible are in and of themselves acceptable when natural means are ineffective. In vitro fertilization, to assist in a conception that might otherwise be thwarted by blocked fallopian tubes or by sperm inadequacy, has been accorded full moral and legal sanction. Genetic engineering that alters the germ line has been ruled out by Jewish ethicists, but gene therapy, removing or correcting defective genes, would be a proper extension of the mandate to heal. The newly announced technology for cloning embryos has been greeted with more caution than hope—hope for improved procreational prospects for couples otherwise limited to one or no progeny, but caution against creating multiple embryos deprived of their distinctiveness as individuals. Safeguards are called for against the dangers of genetic mutation, or of political or profit-motive "baby farming" that could result from abuse of broader eugenic techniques.

david m. feldman (1995)

SEE ALSO: Eugenics; Genetic Discrimination; Genetic Engineering, Human; Genetic Testing and Screening; Human Dignity; Judaism, Bioethics in; Medical Ethics, History of Near and Middle East: Israel;Population Ethics, Religious Traditions: Jewish; and other Eugenics and Religious Law subentries

BIBLIOGRAPHY

Feldman, David M. 1968. Birth Control in Jewish Law: Marital Relations, Contraception, and Abortion as Set Forth in the Classical Texts of Jewish Law. New York: New York University Press.

Feldman, David M. 1991. "The Case of Baby M." In Jewish Values in Health and Medicine, pp. 163–169, ed. Levi Meier. Lanham, MD: University Press of America.

Jacobs, Louis. 1974. "Heredity." In What Does Judaism Say About …?, pp. 165–166. New York: Quadrangle/New York Times.

Jakobovits, Immanuel. 1975. Jewish Medical Ethics: A Comparative and Historical Study of the Jewish Religious Attitude to Medicine and Its Practice, new edition. New York: Bloch Publishing Company.

Kolata, Gina. 1994. "Reproductive Revolution Is Jolting Old Views." New York Times, January 11, pp. A1, C12.

Rosner, Fred. 1986. Modern Medicine and Jewish Ethics. Hoboken, NJ: Ktav Publishing House.

Zevin, Shelomoh Yosef. 1957. Le'Or Ha-Halakhah: Be-ayot uverurim, pp. 147–158, 2nd edition. Tel Aviv: Abraham Zioni.