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Commanding the “Be Fruitful and Multiply” Directive: Reproductive Ethics, Law, and Policy in Israel

  • DANIEL SPERLING
Extract

As of June 2009, Israel’s population was 7,424,400 people, 5,604,900 of which were Jewish, 1,502,400 were Arabs, and approximately 317,200 had no religion or are non-Arab Christians. Established in 1948, Israel is a highly urban and industrialized country. Its gross domestic product (GDP) per capita (based on exchange rate) is US$23,257, positioning it among the European developed countries. Life expectancy is 79 years for males and 82 years for females, with infant mortality rate of 4 cases per 1,000 live births. Of Israel’s GDP, 7.7% is spent on health.

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1. Central Bureau of Statistics. Israeli population according to population group 6/2009, available at http://www.cbs.gov.il/www/yarhon/b1_h.htm (last accessed 19 Nov 2009).

2. Israeli Arabs have higher mortality rates than Jews, resulting from more frequent congenital malformations. See Tarabeia, J, Amitai, Y, Green, M, Halpern, GJ, Blau, S, Ifrah, A, et al. . Differences in infant mortality rates between Jews and Arabs in Israel, 1975–2000. Israeli Medical Association Journal 2004;6(7):403–7.

3. Central Bureau of Statistics. Statistical Abstract of Israel, available at http://www.cbs.gov.il/reader/ (last accessed 19 Nov 2009).

4. Birth rate signifies the annual number of births per 1,000 total population.

5. Fertility rate signifies the average number of children born for a woman within a life period.

6. Population Reference Bureau. World Population Data Sheet 2009, available at http://www.prb.org/pdf09/09wpds_eng.pdf (last accessed 19 Nov 2009).

7. Data obtained from the Department of Health Information, the Ministry of Health (through e-mail correspondence between the author and Dr. Yoram Lotan).

8. Landau, R, Weissenberg, R, Madgar, I. A child of “hers”: Older single mothers and their children conceived through IVF with both egg and sperm donation. Fertility and Sterility 2008;90(3):576–83.

9. Waldman, E. Cultural priorities revealed: The development and regulation of assisted reproduction in the United States and Israel. Health Matrix 2006;16:65–106.

10. Today there are 24 IVF units in Israel. It is interesting that, although IVF is fully and, as will be argued below, exaggeratedly funded by the state of Israel, the businesses of private clinics in Israel continue to be on the rise. For some important comparisons between the attitudes of IVF providers in public and private clinics, see Sperling D, Simon Y. Review of attitudes and policies regarding access to assisted reproductive technologies in Israel (submitted).

11. Central Bureau of Statistics of Israel. Patterns of fertility in 2005 (28.8.06), available at http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=200601184 (in Hebrew; last accessed 19 Nov 2009); Central Bureau of Statistics of Israel. Patterns of fertility in 2007 (16.11.08), available at http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=200801231 (in Hebrew; last accessed 19 Nov 2009).

12. Birenbaum-Caremli, D. ’Cheaper than a newcomer’: On the social production of IVF policy in Israel. Sociology of Health & Illness 2004;26(7):897–924; Seidman, G. Regulating life and death: The case of Israel’s ’health basket’ committee. Journal of Contemporary Health Law & Policy 2006;23(9):53–60.

13. See note 9, Waldman 2006. The strong effect of religious parties on reproductive policy and biomedical issues more generally is the result of the significant participation of rabbis and Halachic experts in policy formation processes and national committees and the substantial representation of Orthodox Jewish parties in the Parliament, as was also recently evidenced in the legalization of brain death in Israel. See Sperling, D. Israel’s new Brain–Respiratory Death Act: One step forward or two steps backward? Reviews in the Neurosciences 2009;20(3-4):299–306. Interestingly, in the area of reproduction, rabbis managed to overcome serious Halachic prohibitions associated with ART, most notably male masturbation, coparenting with a man to whom one is not married (by sperm donation) and having the risk of children who are Mamzers (half siblings by the same donor).

14. Most famously is a former chief of staff and former minister of health, Mordechai Gur’s contention that “IVF is anyway cheaper than bringing in a newcomer.” See note 12, Birenbaum-Carmeli 2006:906.

15. Portugese, J. Fertility Policy in Israel. The Politics of Religion, Gender, and Nation. Westport, CT: Praeger; 1998; Sered, S. What Makes Women Sick? Maternity, Modesty and Militarism in Israeli Society. Brandeis Series on Jewish Women. Boston: Brandeis University Press; 2000:9; Berkovitch, N. Motherhood as a national mission: The construction of womanhood in the legal discourse in Israel. Women’s Studies International Forum 1997;20(5-6):605–19.

16. Strikingly, the founder of the Israeli state and its first prime minister and minister of defense, David Ben Gurion, equated men who escape military service with women who do not bear at least four healthy children. See note 15, Sered 2000:62.

17. Morgenstern-Leissner, O. Hospital birth, military service and the ties that bind them: The case of Israel. Nashim: A Journal of Jewish Women’s Studies and Gender Issues 2006;12:203–41; Shuval, JT. Social Dimensions of Health: The Israeli Experience. Westport, CO: Praeger; 1992.

18. See note 15, Sered 2000.

19. Sher, C, Romano-Zelekha, O, Green, M, Shohat, T. Factors affecting performance of prenatal genetic testing by Israeli Jewish women. American Journal of Medical Genetics 2003;120A:418–22.

20. Hashiloni-Dolev, Y. A Life (Un)Worthy of Living. Dordrecht, the Netherlands: Springer; 2007:90. Abortions are legal in Israel only after the approval of an institutional committee consisting of a social worker, a religious authority, and a physician. According to data relating to the year 2007, 99% of requests to terminate pregnancies have been approved (overall, 11.4% of all pregnancies result in intentional abortions). These high figures are stable for a recent 9 years. Seventy-seven percent of requests are from Jewish women, 9% from Muslim women, and 2.8% from Christian women. Interestingly, although in the past decade there has been an increase in requests by Muslim women, there has been a decrease in the number of Jewish and Christian women seeking to terminate their pregnancies. Some 88.8% of requests relate to week 12 or below, 9.8% to weeks 13–23, and 1.4% to week 24 and onward (with 1.4 times more requests among Muslim women to terminate pregnancies during the second and third trimesters than Jewish women). Central Bureau of Statistics. Application for Pregnancy Termination in 2007 and Temporary Data 2008 available at http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=200905200 (last accessed 19 Nov 2009).

21. See note 10, Sperling, Simon submitted.

22. Remennick, L. The quest after the perfect baby: Why do Israeli women seek prenatal genetic testing? Sociology of Health and Illness 2006;28(1):21–53.

23. Ivry, T, Teman, E. Expectant Israeli fathers and the medicalized pregnancy: Ambivalent compliance and critical pragmatism. Culture, Medicine and Psychiatry 2008;32:358–85.

24. See note 17, Morgenstern-Leissner 2006.

25. Media coverage of IVF has also been relatively positive, emphasizing with much glorification and admiration the miracles of reproductive technologies and portraying mothers who gave birth after exceptionally long and painful fertility treatments as brave and courageous. Such coverage offers a personalized discourse of IVF as a benevolent and effective treatment for anguished women. See note 12, Birenbaum-Carmeli 2004.

26. Remennick, L. Childless in the land of imperative motherhood: Stigma and coping among infertile Israeli women. Sex Roles 2000;43:821–41.

27. Kahn, SM. Reproducing Jews: A Cultural Account of Assisted Conception in Israel (Body, Commodity, Text). Durham, NC: Duke University Press; 2000. Along with the Jewish–Zionist emphasis on reproduction, there has also been a complementary secular focus on selective pregnancies, resulting in the fact that Israel boasts a world’s record in the number of prenatal tests, also supported by permissive abortion laws and public subsidizing of these tests and screening programs. According to some scholars, such laws and policies helped develop a pattern of rejecting defective children and stigmatizing impaired appearance. Weiss, M. The ’chosen body’: A semiotic analysis of the discourse of Israeli militarism and collective identity. Semiotica 2003;145:151–73. But compare Zlotogora, J, Carmi, R, Lev, B, Shalev, SA. A targeted population carrier screening program for severe and frequent genetic diseases in Israel. European Journal of Human Genetics 2009;17:591–7, arguing that the existence of such tests did not result in stigmatization.

28. Most of Israel’s reproductive regulations and policies are formalized as Ministry of Health regulations and only recently, with the enactment of the Embryo Carrying Agreement Act and with few bills pending, can one witness a shift to a more statutory formalization.

29. See note 12, Birenbaum-Carmeli 2004.

30. See note 15, Portugese 1997:97.

31. Before the enactment of the National Health Insurance Act in 1994, medical services were provided by four sickness funds, Kupot Cholim. With regard to IVF services, each sickness fund decided for itself the number of IVF cycles that were covered by membership at the fund. Thus, for example two funds limited the number of IVF cycles to seven and set a minimum on the women’s age (40 and 47) and another fund required a 1-year minimum of membership for eligibility. The largest sickness fund, Kupat Cholim Clalit, was the most generous one, placing no restrictions on the number of IVF cycles, although this was for technical reasons: The fund could not trace women’s previous treatment and entitlement efficiently. As with all medical services, services provided by Clalit before 1994 became standard provision by the National Health Insurance Act. See note 12, Birenbaum-Carmeli 2004.

32. Ministry of Health Guideline on Egg Donation from Abroad 39/2005 (in Hebrew), available at http://www.health.gov.il/

33. Donation of Eggs for IVF Bill, 2001 (in Hebrew), available at http://www.knesset.gov.il/

34. The Ministry of Health is expected to allow the freezing of eggs for every woman above 33. Globes 2009 Jun 11 (in Hebrew), available at http://www.globes.co.il/news/article.aspx?did=1000457897

35. See note 17, Morgenstern-Leissner 2006.

36. See note 27, Kahn 2000. See also Amir, D, Benjamin, O. Defining encounters: Who are the women entitled to join the Israeli collective? Women’s Studies International Forum 1997;20(5-6):639–50.

37. Embryo Carrying Agreement Act (Agreement approval and the status of the child), 1996.

38. B.S. (Haifa) 2808/03 A.S. v. Attorney General; B.S. (Haifa) 1130/01 S.V. v. Rambam Hospital et al. (PsakDin) (Decisions in Hebrew).

39. T.M.S. (Tel Aviv) 58540/05 K.B.L.A. v. Sorasky Medical Center (PsakDin); T.M.S. (Kfar Sava) 11870/03 Y.S. v. The State of Israel (PsakDin). Recently, the parents of a 25-year-old son who died from cancer submitted a petition to Tel-Aviv Family court to validate the will of their son asking to use his sperm after death. Regev D. The son passed away—His parents want to bring his child into the world, available at http://www.newfamily.org.il/ (in Hebrew). An organization advancing family rights in Israel has initiated a program to establish sperm bank for Israeli soldiers, terminal patients, and others for future insemination.

40. See Grazi, RV, Wolowelsky, JB, Krieger, DJ. Sex selection by preimpplantation genetic diagnosis (PGD) for nonmedical reasons in contemporary Israeli regulations. Cambridge Quarterly of Healthcare Ethics 2008;17:293–9.

41. H.P. (Jerusalem) 5222/06 X v. Minister of Health et al. Takdin-Mechozi 2712 (3) 2006.

42. T.M.S. (Tel Aviv) 56170/04 H.S. v. Attorney General (PsakDin); H.P. 3419/04 X v. Minister of Health Takdin-Mechozi 1706 (3) 2005; H.P. 386/07 X et al. v. The Legal Department at the Ministry of Health et al. (PsakDin).

43. T.M.S. (Tel Aviv) 62300/06 New Family et al. v. State Attorney at Tel-Aviv (Civil) (PsakDin).

44. Regulations of Public Health (IVF) 1987, §§ 5,6, 14b.

45. Director General of Ministry of Health Guidelines 20/07 on Management of Sperm Banks and Artificial Insemination § 31.

46. See note 41, X v. Minister of Health et al.

47. When such a dismissal occurs, employers pay huge sums of money to compensate the employee, as in a recent case where a woman was paid 108,000 NIS (17,285£) for being discharged from her duties and status after telling her employer that she was undergoing fertility treatment. Niv S. Compensation of 108000 NIS for a woman fired during fertility treatment. Globes Online 2009 Jul 29, available at http://www.globes.co.il/news/article.aspx?did=1000485405&fid=829&nl=1604 (last accessed 26 Nov 2009).

48. T.E. (Kfar Sava) 6880/03 Nir Sobol v. Rabin Medical Center (PsakDin).

49. See note 48Nir Sobol v. Rabin Medical Center (PsakDin); T.E. (Tel Aviv) 1122/95 Ronit Arema v. Medinvest Hertzelia Medical Center Ltd. (Nevo); H.P. (Tel Aviv) 1922/96 X v. International Medical Services et al. (PsakDin). Ministry of Health regulations state that embryos can be stored with no further cost up to 5 years from fertilization and then may be discarded or donated to another couple. New guidelines hold that a couple should express their wishes in advance as to the fate of their embryos, including their request to continue storing them (with payment) for 5 more years or donate them for research. If, toward the end of the 5-year period, the couple does not express any direct wish, guidelines state that the clinic must discard the embryos.

50. Bagatz 2245/06 Knesset Member Neta Dovrin et al. v. Israeli Prisons Services (Nevo).

51. Bagatz 2458/01 New Family v. The Committee for Approving Embryo Carrying Agreements (Nevo).

52. R.I.B. 2416/05 X v. Israeli Prisons Services (PsakDin).

53. I.A. 141/07 X v. Sherute Briut Clalit et al. (Nevo).

54. Bagatz 9830/06 X v. Minister of Health (Supreme Court of Israel).

55. See note 12, Birenbaum-Carmeli 2004.

56. Van Voorhis, BJ. In vitro fertilization. New England Journal of Medicine 2007;356:379–86.

57. Van Voorhis, BJ. Outcomes from assisted reproductive technologies. Obstetrics & Gynecology 2006;107(1):183–200.

58. Gooldin, S, Shalev, C. The uses and misuses of in-vitro fertilization in Israel: Some sociological and ethical considerations. NASHIM: Journal of Jewish Women’s Studies & Gender Issues 2006;12:151–76.

59. Giacomini, M, Hurley, J, Stoddart, G. The many meanings of deinsuring a health service: The case of in vitro fertilization in Ontario. Social Science & Medicine 2000;50(10):1485–500.

60. Landau, R. Religiosity, nationalism and human reproduction: The case of Israel. International Journal of Sociology and Social Policy 2003;23(12):64–80.

61. See note 12, Birenbaum-Carmeli 2004; Editorial: Should insurance coverage for in vitro fertilization be mandated? New England Journal of Medicine 2002;347(9):686–8.

62. Inhorn, MC, Birenbaum-Carmeli, D. Male infertility, chronicity, and the plight of Palestinian men in Israel and Lebanon. In: Manderson, L, Smith-Morris, C, eds. Chronic Conditions, Fluid States: Globalization and the Anthropology of Illness. New Brunswick, NJ: Rutgers University Press; 2009.

63. Tarun, J, Harlow B, Hornstein M. Insurance coverage and outcomes of in vitro fertilization. New England Journal of Medicine 2002;347:661–6; Henne, M, Bundorf, MK. Insurance mandates and trends in infertility treatment. Fertility & Sterility 2008;89(1):66–73.

64. Schmidt, L. Infertility insurance mandates and fertility. American Economic Review 2005;95(2):204–8.

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