Rabbi Yehuda Finchas
In December 2020, a patient gained access to a fertility clinic’s cryopreservation unit and dropped some frozen embryos. (Cryopreservation is the process whereby cells are cooled to sub-zero temperatures, allowing them to be preserved for long periods of time.) The embryos “died” as a result of the patient’s actions. The clinic was sued for committing wrongful death by negligence and the case reached the Alabama Supreme Court. The court recently ruled that the “Alabama’s Wrongful Death of a Minor Act” applies “to all unborn children without limitation. And that includes unborn children who are not located in utero at the time they are killed.” Many people have asked me, what is the halacha’s stance on this question? Is the destruction of a cryopreserved embryo considered halachic “death”?
Hacham Ovadia, zt”l, (Hazon Ovadia, Shabbat, Vol. 3, p. 338) discusses a similar question that sheds light on this question. Does pikuach nefesh apply to an unborn fetus? In other words, may one desecrate Shabbat in order to save the life of an unborn child? Hacham Ovadia concludes that one is obligated to desecrate Shabbat in order to save a fetus, even within forty days from conception. However, Hacham Ovadia’s conclusion was written regarding a fetus in its mother’s womb. Does the same apply to a frozen fetus in a cryopreservation unit?
At first glance, the answer to this question depends on the halachic basis for desecrating Shabbat to save a person’s life. The Gemara presents two different sources for this obligation. According to Shmuel, the Torah’s instruction, “v’chai bahem” – “live by them,” (Vayikra 18:5) informs us that mitzva observance must not cause a person’s death. This includes the mitzva to fast on Yom Kippur and to abstain from melacha on Shabbat. On the other hand, Rabbi Shimon ben Menasia learns this from the pasuk, “And Bnei Yisrael shall observe the Shabbat” (Shemot 31:16).
The Torah’s use of the word “observe” implies that one’s actions should ensure the maximal observance of the Shabbat. If by “desecrating one Shabbat, Shabbat may be observed many times over in the future,” one is required to desecrate it (Yuma 85b).
There are various practical ramifications that result from which source one accepts – that of Shmuel or that of Rabbi Shimon ben Menasia. Shmuel’s source only relates to a human who is already born. This is because the pasuk “v’vhai bahem” expressly refers to an “adam”- a “man.” “You shall keep My statutes and My laws which man obeys and he shall live by them.”
In fact, the Baal Halachot Gedolot (Bahag) writes that this pasuk specifically relates to “a man” who is already born, and therefore an unborn fetus is excluded. On the other hand, the principle taught by Rabbi Shimon ben Menasia that one should “desecrate one Shabbat so that Shabbat may be observed many times over in the future” ought to apply to a fetus. Hacham Ovadia rules that we rely on the source presented by Rabbi Shimon ben Menasia and therefore desecrate Shabbat to save a fetus.
Parenthetically, Hacham Ovadia challenges the Bahag by pointing to Beresheet 9:6, “Whoever spills the blood of a man inside a man, his blood shall be shed.” The Gemara explains that this refers to aborting a fetus. “Which kind of man is ‘inside a man’? A fetus in its mother’s womb” (Sanhedrin 57b). Evidently the Torah does call a fetus “a man”? Hacham Ovadia answers that the Torah defines a fetus as “a man inside a man,” but not as a “man” who so happens to live inside another “man.”
Intuitively, the principle of Rabbi Shimon ben Menasia could be applied to a frozen embryo as well. The embryo may come to observe Shabbat many times over if we desecrate one Shabbat to save it! However, Hacham Ovadia, quoting Rabbi Shmuel Vozner (Responsa Shevet Halevi, 5:47), rules that one may only desecrate Shabbat to save a fetus in utero who is at least “a man inside a man,” but not for a frozen embryo that is only a “man inside a freezer.”
In conclusion, frozen embryos have a different halachic status than a fetus in utero. While you must desecrate Shabbat to save an unborn child in its mother’s womb, you may not desecrate Shabbat to save a frozen embryo. By the same token, while it is forbidden to abort an unborn child in its mother’s womb, this does not apply to a frozen embryo. Therefore, destroying such an embryo would not be halachically considered the wrongful death of a minor. That said, since the embryo is an object of great value, it should not be discarded without a valid reason.
Rabbi Yehuda Finchas is a worldwide expert, lecturer, and author on Medical Halacha. He heads the Torat Habayit Medical Halacha Institute. His latest book is “Brain Death in Halacha and the Tower of Babel Syndrome.” To contact Rabbi Finchas email rabbi@torathabayit.com.