Volume 26 Number 20
                      Produced: Sun Apr  6  8:42:08 1997

Subjects Discussed In This Issue: 

Cloning (2)
         [Berl Nadler, Ranon Katzoff]
Cloning and Halacha
         [Chana Luntz]
Cloning: Some supplemental Remarks:
         [Russell Hendel]


From: Berl Nadler <bnadler@...>
Date: Sun, 30 Mar 1997 16:25:47 -0500 (EST)
Subject: Cloning

Mark Dratch's informative submission raises the interesting question of
authority. He points out that "the etichal community does not know how
to respond" to the challenges posed by the scientific advances in this
area. This begs the following questions: (a) is there an "ethical
community" outside the realm of halakhic authority whose responses could
be of any consequence to the halakhic community; and (b) what ethical
criteria could be applied in formulating any response other than purely
halakhic criteria formulated and applied by gedolei torah?

From: Ranon Katzoff <katzoff@...>
Date: Mon, 31 Mar 1997 14:04:38 -0500 (EST)
Subject: Re: Cloning

Several of the postings on the matter of cloning of humans have raised
the question of whether the cloned person would be a mamzer. I cannot
imagine what they have in mind. The ultimate halacha defines a mamzer as
the child born of a sexual union forbidden by scripture on the pain of
death or karet. However, since cloning is *not* a sexual union, is it
not obvious that no mamzer could result?

Ranon Katzoff


From: Chana Luntz <heather@...>
Date: Sun, 30 Mar 1997 18:08:38 +0100
Subject: Cloning and Halacha

In message <199703301432.JAA21537@...>, Eitan Fiorino
<afiorino@...> writes
>Whether or not cloning would be permitted by the poskim is an
>interesting question; equally interesting is the status of a person born
>as a clone, specifically with regard to paternal and maternal
>relationships.  If cloning is forbidden, would such a person be a mazer?

I can't see how the person could be a mamzer (unless perhaps the parent
is a mamzer).  After all, even if it is forbidden, I can't see it
fitting into any of the categories of prohibition that are liable for
kares - and hence there would be no question about mamzerus.

>Or would they simply be a Jew with the status of an orphan or of a ger?
>Or would a maternal relationship exist with the surrogate mother,
>without a paternal relationship at all?

If we are talking about a clone of its mother, carried by its mother
(assume for the moment that the woman is unmarried) - then, I would
hazard a guess the child would have a similar status to the child of a
woman and a non-Jew - ie it would be a Jew in all respects, but not
halachically have a father.  After all, that is effectively the way the
matter is currently treated in the case of a child whose father is not
Jewish, the woman, to all intents and purposes, provides all the
halachically relevant genetic material, and there is considered to be no
genetic relationship between the genetic father and the child, despite
what the chromosomes are doing. The only time, it seems to me, that
there could be a real question is - lets say the girl grows up and wants
to marry the brother of the original donor.  Halachically a niece can
marry and uncle, but a brother cannot marry a sister (and admittedly
this question is moot in most countries which prohibit uncle/niece
marriages).  Except in that case, all the normal halachic prohibitions
would apply as if the child was the child of the woman and a non-Jew.
And you could solve the uncle/niece situation by banning it, without to
much difficulty (and if they did marry, and had a child, then
presumably, given that one tries to exculpate any mamzer, you would for
the purposes of the child, regard it as an uncle/niece marriage).

If the woman is in fact married - now I think I am getting into even
deeper water - but I am going to have an even wilder guess.  In general,
the halacha presumes that a child is the son of the husband, unless
there is proof that it is not - ie there is evidence of an averah being
committed, - so if the woman was living with her husband at the time we
might (I am really not sure about this - what do other people think?)
treat the child as the son of the husband (isn't this the position taken
by AID? - and that would seem to be a more problematic case than this
is, because in that case there really is another male involved, at least
genetically, while here there is no averah occurring, the woman is
completely faithful to her husband.  Do those that allow AID consider it
to allow the husband to fulfil his mitzvah of pru u'rvu, does anybody
know? ).

If we are talking about a male clone, that is merely being carried by
the woman, the situation there would presumably hinge on your
understanding of what the halacha is with a surrogate mother.  If you
hold that a surrogate mother is the real mother - then the equation is
easy, the child is the son of the genetic material provided by the
father (so, he provides all the genetic material, and not just some of
it, but I don't see why that is a problem), and the birth mother - but
there is no question of mamzerus due to there being no averah committed
between them (even if they are married to other people - although if she
is, the question of presumption of the child being the son of her
husband might apply, so it is easier to consider the case where she is
in fact unmarried, - or married to him).

If you hold, in the case of the surrogate mother, that the real mother
is the genetic mother - this is where you have a problem, because the
only genetic mother around is the mother of the father.  This is
probably another argument for the position that the birth mother is the
real mother.

The third option in the surrogate case - ie that there are really two
mothers - ie both the genetic and the birth mother are in the halachic
category of mother and are owed the duty of kibud am, that one inherits
from both mothers, that one cannot marry relatives of both mothers -
(with the fascinating question as to, if your two mother's give you
contradictory commands, which one do you have to listen to first!!! - in
situations where the one is not the shifcha of the other), then in our
situation, it would just reduce to the one mother (the same way that,
under this position - if one of the mothers is not Jewish, she drops out
from being a mother leaving the other mother as *the* mother).

The fourth option in the surrogate case is that there is only one
mother, but we do not know which one - therefore each is treated as a
safek mother (give them both kibud am, don't marry either of their
relatives - but don't inherit from either since it is a question of
safek mamon, and the other children can demand that proof be brought
that the child was in fact the child of the mother).  In this situation,
if one mother is not Jewish, the child is converted m'safek.  If this
was the view taken for surrogacy, then presumably, if there is no
possible alternative mother, there is no safek (do people think this
last bit of logic is sound?) and therefore it reduces to the mother that
exists, ie the birth mother. (Actually, I think it depends on the way
this safek is understood, perhaps the same rule of safek would apply to
the one remaining mother).

The real problem is going to come when we are going to be able to
incubate babies until they are fully grown AND we do this with clones.
Then we are going to have situations where there is no birth mother,
and, if the clone is of a man, no genetic mother either.  In this
situation there is no kiddushin (at least in all the above cases, there
was kiddushin or possible kiddushin with at least one of the mothers, if
not both), but no averah (not in the kares sense), and therefore the
vlad (ie child) cannot follow the father either (ie could not be a cohen
even if the father was one), and there is no mother to follow.  I think
you would have to consider this child either a golem (who may or may not
be able to be joined to a minyan, but who definitely does not get either
of the first two aliyas) or as not Jewish.  In either case, conversion
would clearly regularise the situation.

>Eitan S. Fiorino, M.D., Ph.D.

Would be interested in any comments.


From: <rhendel@...> (Russell Hendel)
Date: Mon, 24 Mar 1997 14:02:13 -0500
Subject: Cloning: Some supplemental Remarks:

There have been some very good postings on Cloning. I would just like to
add a few comments which don't always wind up in Teshuvoth or postings.

1st) "Life" in English and Science refers to plants, animals, man and
microorganisms. The reason being is that they all can reproduce, have
some type of adaptability and consume food.

In the Torah however (using a CD rom or Konkordance) only animals and
man are called living. Plants are called "reproducables (Zerah)

Since there is a Bibical injunction against grafting fruit trees (and
animals) it would follow that the Chief Rabbis of Israel's opinion
(quoted in a posting) that "creating new life" is Assur is correct.  and
applies to "genetic engineering"

However two distinctions come to mind

2nd) Even if "genetic engineering" is prohibited perhaps that is only
when we create a new form of life. If our purpose say was to use
genetric engineering to cure some illness (like Tay Sachs) perhaps this
is not akin to "grafting" but to "curing" and therefore permissable.

3rd) I know of no good sources on the status of microorganisms...  are
they life or not.  In other words EVEn if we accept the position that
the prohibition of grafting applies to all genetic engineering does it
apply to microorganisms also.

In connection with this I mention some American legal cases in which the
issue of companies using genetic engineering to create bacteria that
produce certain chemicals came up.  The court issue was whether you
could legally obtain a patent on "life" (ie. did the company "own" that
form of bacteria or could other companies also create it without paying
the original company a fee).

4th) At least one posting dealt with whether we "should" want to clone
(vs whether it is permissable).  As far as I know Jewish Hashkafa does
not subscribe to the Malthusian view that "life is a potential nuisance
since we might not have enough to feed it...and therefore should only be
encouraged when we do have enough to feed it". Judaism believes that new
life adds "blessings" to the world and the new people can help create
more food than they consume. This view on the intrinsic "desirability"
of life is independent of positions on Birth Control which can focus on
other technical issues.

If anyone can shed specific light on the above 4 items: 1) definitions
of life, 2) using genetic engineering to cure illnesses, 3) the status
of microorganisms (usage of genetric engineering to produce chemicals)
and 4) the desirability of more life in ALL circumstances this would be

Russell Jay Hendel, Ph.d, asa; rhendel @ mcs drexel edu


End of Volume 26 Issue 20