PUBLIC HEALTH PERSPECTIVES ON THE PARSHAH: VA-YERA
After Avimelech takes Sarah into his household, Hashem strikes the house of Gerar: כי עצר עצר ה’ בעד כל רחם לבית אבימלך (20:18). Once Sarah is returned, Avraham davens on Avimelech’s behalf, and the Torah describes the result with a striking choice of words: וירפא אלקים את אבימלך ואת אשתו ואמהתיו וילדו—”God healed Avimelech, his wife, and his maidservants, and they bore children” (20:17).
The Gemara (Bava Kamma 92a) famously learns from the juxtaposition of these pesukim with the very next one—וה’ פקד את שרה—that whoever prays on behalf of another while needing the same thing himself is answered first. Avraham prayed for the fertility of Avimelech’s household, and Sarah conceived.1 Implicit in the Gemara’s reading is that Avimelech’s household and Sarah suffered from the same condition. And the Torah explicitly describes the cure for that condition as רפואה.
In our previous post, we discussed two possible halakhic justifications for public funding of fertility treatment: supporting the mitzvah of פרו ורבו and addressing a national need. Va-Yera’s language points to a third, and in some ways simpler, argument. If infertility is an illness and its treatment is refuah, then perhaps the public ought to fund it for the same reason it funds any other medical care.
This argument is made explicitly in Sefer Puah (vol. 2, ch. 42), the comprehensive halakhic guide to fertility treatment published by Machon Puah. In the context of whether fertility treatments would ever allow violating halakhic prohibitions, they survey various opinions as to the status of the infertile couple. When it comes to hilkhot Shabbat, for example, the severity of a person’s illness will dictate the level of otherwise prohibited actions that may be undertaken. Sefer Puah argues that the consensus opinion seems to regard infertile couples as חולים שאין בהם סכנה (a sickness that poses no danger to life).2
They therefore argue that infertility treatment is appropriately designated as refuah, and as such, the responsibility for providing it ought to fall on the public.3
Chapter 13 in Yoshveha Aleha that we discussed last week cites this argument only in passing, remarking that it requires further proof. In fairness, the argument actually has two distinct premises, and each needs to be established on its own: first, that infertility is an illness and its treatment qualifies as refuah; and second, that the public bears an obligation to fund this type of refuah. One can easily accept the first premise without necessarily conceding the second.
Is Infertility an Illness?
While infertility is traditionally treated within the modern medical context, an infertile person is, in most cases, otherwise healthy. He or she is not in physical pain, nothing is functionally impaired in daily life, and the condition poses no danger. And even while it certainly has mental health effects, from a strictly bodily health perspective, infertility does not appear to directly hinder quality of life in any physical way.
Moreover, from a treatment perspective, many fertility treatments don’t actually cure anything. IVF doesn’t open blocked fallopian tubes but rather bypasses them. In cases of male-factor infertility, it’s the wife who undergoes hormonal stimulation and egg retrieval, even though she herself may be perfectly healthy. While the halakhic considerations of illness status discussed above refer to the couple as an entity, in many cases it’s only one of the pair that is experiencing infertility, even while both might need to be treated.4
That said, the case for considering infertility an ‘illness’ finds strong support in the way in which the Torah and Hazal speak about it. The Torah itself repeatedly pairs infertility with disease. In Mishpatim, והסרתי מחלה מקרבך is immediately followed by לא תהיה משכלה ועקרה בארצך (Shemot 23:25–26), strongly insinuating that the latter (infertility) is an example of the former (illness); the same pairing appears in Eikev (Devarim 7:14–15). The Gemara (Nedarim 64b) counts one who has no children among the four who are considered as if dead—alongside the poor, the blind, and the metzora—the latter two clearly suffering from physical ailments. Rachel’s cry, הבה לי בנים ואם אין מתה אנכי (Bereishit 30:1), expresses a similar sentiment in more emotive and personal terms.
What the Refuah Track Adds
Assuming the first premise holds, framing fertility treatment as refuah has two important advantages over the justifications we discussed last week.
First, the mitzvah-based argument depends on whether IVF and other assisted reproductive technologies actually fulfill the mitzvah of peru u-revu, a question on which the Poskim are not unanimous. The refuah-based argument is independent of such disagreements, as it depends on the status of [a member of] the couple and not their religious obligations.
Second, and perhaps most importantly, framing fertility treatment as refuah removes it from the realm of being treated as a ‘special’ category of need. On these grounds, fertility treatment isn’t being funded because it’s uniquely Jewish or uniquely nationalistic. It’s funded for the same reason for funding cardiology or oncology care.
Three Tracks, Three Sets of Rules
These differences are not merely theoretical. Each justification, taken on its own terms, yields a different set of applications and a different set of exclusions: different answers to who is eligible, for how many children, until what age, and at whose expense.
The mitzvah track should specifically fund that which the mitzvah requires. Its natural beneficiary is the husband who has not yet fulfilled פרו ורבו, and its natural endpoint is a son and a daughter (Yevamot 61b; Shulhan Arukh EH 1:5). Beyond that, the claim weakens considerably; whether a Sefer Torah may be sold for one who already has children is itself a matter of dispute (EH 1:8).
- Children from a previous marriage certainly count toward the mitzvah, so a remarried husband who already has a son and a daughter would have a weaker claim, which is precisely the case that current Israeli policy funds.
- Similarly, since the halakhic obligation rests exclusively on men, a single woman has no claim on this track at all, with access to married women predicated on their assistance with their husband’s mitzvah.
- Lastly, the classic sources for communal support for an individual’s mitzvah performance apply specifically to those who cannot afford it (see Rema, HM 163:3), suggesting that fertility support would be similarly means-tested.
The national-need track funds births. It is indifferent to who is obligated and to how many children a couple already has; a third or fifth child adds to the population just as much as a first. Its natural criteria are all about efficiency: success rates, and therefore age, and cost per live birth.
- It has no particular reason to means-test. Its only real limit is its premise. If the demographic need disappears, so does the funding.
- At the same time, considering the utilitarian nature of this approach, it should support fertile and infertile couples similarly. In fact, an argument could be made that priority should be given to specifically encourage fertile couples to continue to have children as it likely costs less and has an already proven track record of success.
The refuah track funds the treatment of illness, and therefore depends entirely on diagnosis.
- It applies equally to men and women, and is in principle indifferent to marital status and to the number of children a person already has; secondary infertility is no less a medical condition than primary infertility.
- But its exclusions are equally principled. One who is childless but medically healthy, such as a single person without a fertility problem or someone seeking to preserve fertility for later, is not a חולה, and the refuah track offers no basis for funding treatment.
These exclusions, however, assume a narrow definition of illness. The WHO describes health as:
a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.
Current Israeli policy, which funds two children per couple regardless of previous marriages, includes single women, and cuts off at age 45, does not map cleanly onto any one of these tracks as narrowly defined. It does, however, seem to reflect a similarly broad conception of health, even though it never invokes the WHO’s definition. Funding treatment for single women, for couples with children from previous marriages, and for an almost unlimited number of cycles makes little sense if the goal is merely to cure disease. It makes a great deal of sense if health means well-being in the fullest sense, and if building a family is understood as central to that well-being. What drives the policy is less a medical definition than a deeply held sense of what members of a society owe one another, a sense that in a Jewish state draws on a long tradition in which helping others build families has always been a communal concern. On this broader view, the boundaries of the refuah track expand considerably. The question is no longer only whether someone is a חולה for whom Shabbat can or should be violated, but whether the public can help him or her flourish.
The question is no longer only whether someone is ill, but whether the public can help him or her flourish.
Who Pays for Refuah?
All of these applications of the refuah track, however, assume that classifying treatment as refuah is enough to obligate the public. That brings us to the second premise.
Even granting that fertility treatment qualifies as refuah, the argument requires also assuming that the public is obligated to generally fund all types of refuah. That question is the subject of a significant debate among contemporary thinkers. Rav Roi HaKohen Zack, in Haktza’at Mash’abim Tziburiyim, argues that the state not only has no inherent responsibility for health care, it is inappropriate and wrong for the state to allocate funds in this manner. In his view, each person is responsible for his or her own medical needs, with the community stepping in only through tzedakah, when somebody cannot afford treatment. Rav Shlomo Goren, by contrast, maintains that responsibility for the health of the population rests with the highest level of government.5 (We’ve seen Rav Goren’s expansive view of the state’s responsibility for public health once before.)
[This fascinating and fundamental debate deserves its own careful treatment, and will be the subject of a future discussion.]
According to Rav Goren, establishing that infertility is an illness places fertility treatment squarely within the public health system. According to Rav Zack, the same conclusion only establishes a claim on tzedakah, and only for couples who cannot afford treatment on their own. Recognizing that fertility treatments can often be quite expensive, the distinction between these two approaches—while conceptually distinct—may in practice agree in a vast majority of cases.
A Classification That Cuts Both Ways
There is, however, a more subtle point lurking in Sefer Puah’s formulation. The claim is that infertile couples are at the very least חולים שאין בהם סכנה. That is meant as a floor, a minimal classification sufficient to establish that their treatment is refuah. But the classification cuts both ways.
Halakhah distinguishes sharply between a חולה שיש בו סכנה and a חולה שאין בו סכנה. For the former, even Torah prohibitions are set aside; for the latter, only limited leniencies apply, such as אמירה לעכו”ם on Shabbat (Shulhan Arukh OH 328:17). Even those who classify infertility as סכנת אבר place it well below pikuah nefesh, and despite the Gemara’s description of the childless as חשוב כמת, no Posek treats childlessness as a threat to life. Halakhah does not merely recognize illness; it ranks it.
Halakhah does not merely recognize illness; it ranks it.
If so, the very classification that brings fertility treatment into the health system also tells us where within that system it sits. As we’ve discussed previously, public funds operate under the constraint of דוחקא דציבורא; every dollar spent in one place is a dollar unavailable elsewhere. A public health system that takes halakhic categories seriously would seemingly need to prioritize the treatment of a חולה שיש בו סכנה over that of a חולה שאין בו סכנה. The refuah argument gets fertility treatment into the basket of covered services, but in the same breath explains why it can’t claim unlimited priority there.
Even on Rav Goren’s approach, there may be limits. Rav Avraham Steinberg distinguishes between essential medical needs, for which society must ensure full equality, and needs that improve quality of life, for which society need only ensure equal access.6 Where fertility treatment falls on that spectrum, and how Rav Steinberg’s approach interacts with the debate between Rav Zack and Rav Goren, will be the subject of our next discussion.
We have seen three different halakhic justifications for public support of fertility treatment—mitzvah, national need, and refuah—each with its own logic, its own beneficiaries, and its own exclusions. A policy that draws on all three, as Israel’s seemingly does, must ultimately decide how and when to apply these various rationales in the public arena, particularly in instances where they conflict.
To be continued …
- Rashi (20:17–18), following Onkelos (ואתרווחו), reads וילדו not as childbirth but as relief: the affliction closed every bodily opening, and the cure was that they were opened again. On that reading, the affliction was not infertility per se. Ibn Ezra rejects this as the peshat, reading the verse as referring to childbirth. The Gemara’s derashah, in any case, clearly assumes that Avimelech’s household needed the same thing Sarah needed. Either way, the Torah describes the cure as רפואה. ↩
- Some offer a slightly different categorization, חולים עם סכנת אבר—a sick patient with a risk to one of their limbs—adopting the more lenient perspective of the Ketzot ha-Shulhan, that סכנת אבר is not limited to the anatomical loss of a limb, but also includes the loss of functionality. The argument is that ‘something’ is not functioning properly with either or both of the couple’s reproductive organs. ↩
- Sefer Puah, vol. 2, ch. 42. The authors list several halakhic dimensions of fertility treatment: הכשר מצוה, refuah, and גמילות חסדים, in assisting with the mitzvah, easing the emotional suffering of infertile couples, and promoting שלום בית. See also the Yoshveha Aleha chapter, n. 22. ↩
- This question has practical ramifications of its own, such as whether the leniencies afforded a חולה apply to a healthy wife undergoing treatment because of her husband’s infertility. ועוד חזון למועד. ↩
- R. Roi HaKohen Zack, Haktza’at Mash’abim Tziburiyim, ch. 1; R. Shlomo Goren, Torat ha-Refuah, pp. 313–314. Rav Goren’s comments were written in the context of a doctors’ strike, and R. Yehudah Zoldan has argued that they should be limited to that context; see the Yoshveha Aleha chapter, n. 45. ↩
- R. Avraham Steinberg, Encyclopedia Hilkhatit Refu’it, s.v. “Mash’abim Mugbalim” (vol. 4, 5766 ed.), p. 839. ↩