The Human Genome and Ethical Issues: An Halakhic Perspective

Rabbi Michael Graetz

The cracking of the human genome and the development of genetic engineering highlight the broadest and most basic ethical issues. These issues go to the very heart of human understanding of ethics as a system whose purpose is to provide guidelines that strive to guarantee certain inalienable rights that stem from the fact of being human. For our purposes it matters not whether those rights are conceived of as privileges of being human, as in Western philosophy, or as unspoken assumptions which generate obligations of one human towards another, as in Judaism. (cf. my article “ha-zechut le-tipul refui”, in Et La’asot vol. 3, pp. 80-89; and the comments thereon in Noam Zohar, Alternatives in Jewish Bioethics, NYU, 1997 p. 7ff.) What does matter is acknowledging those rights in all matters of dealing with humans.

The Nazi ideology of race called into question this basic assumption of inalienable rights. Human rights, or obligations to others based on assumption of rights, in the Nazi system was not based upon the mere fact of one’s being human. Rather, rights were based upon a particular human’s inclusion in a particular human race. For my purposes here I will phrase this approach in the following manner:

Nature, the fact that a person is born of a human mother, does not automatically guarantee the same set of rights to all humans. Nature itself creates distinctions between humans based on skin color and other attributes that were meticulously laid out by Nazi racist theories. The set of rights which a person possesses is determined by the “science of race”, that is, some races are “stronger” and those races have more rights, other races are “weaker” and have less or no rights at all.

Still, it would be wrong to ascribe this approach only to Nazis. Indeed, since the discovery of genetics in the 19^th century, the western scientific world has been enamored of the idea of the perfectibility of the human species. This enamor has led many along the path of the Nazis, of setting “value” on people based on genetic considerations. In October 1998, the Board of Directors of the American Society of Human Genetics issued a statement which included the following section:

“The global scientific community is making extraordinary advances in understanding the human genome. This knowledge has contributed many important medical benefits. Yet, concern about the possibility of misuse of genetic concepts and genetic information may be as great today as at any time since World War II. Many fear that as we learn more about how genes vary and function, some individuals or institutions may be tempted to ascribe an overly deterministic influence to their role in shaping human health and potential and pursue social policies that limit or constrain reproductive freedom…. Although arguments for maintaining racial purity abound in nineteenth century German literature, the Nazis were also influenced by events in the United States. The 1934 German racial hygiene law relied on a model bill written by the American eugenicist, Harry Hamilton Laughlin, who for three decades directed the Eugenics Record Office at Cold Spring Harbor…. The German sterilization program quickly evolved to target and eliminate retarded and epileptic children, the mentally ill, and other groups. The program has been called a precursor to the gas chambers. During the early years (1934-38) the Nazi sterilization program was not primarily an attempt to improve the gene pool. It focused on eliminating “useless eaters” – persons who would consume resources without contributing to their production.” [emphasis mine.]

The goal of these theories was, on the surface, a noble one, namely, to constantly “improve” the human species. As geneticists can tell you there are genetic rules which lead to “improvement”, that is, minimizing certain diseases or unpalatable characteristics such as mental retardation. The Nazis,  and others before and after them, have concluded that human government should act consciously on behalf of improvement of the species, by support and succor of the “strong” genes or races, and by elimination of the “weaker” ones.

In this article I am concentrating on what I consider to be a central issue in this debate. The question at hand is: Can nature, or God, be trusted to have created a system which is for the ultimate benefit of humanity, so that it is wrong for humans to intervene in the course of nature? It seems as if there are too many glitches and unwanted results in the system. Science has given humans enough knowledge to “engineer” the system of Nature, or of God. Thus, perhaps it is our moral duty is to use the scientific knowledge that we have gained in order to “perfect” the human species.

This approach resonates in Jewish tradition. God, or Nature, endowed humans with wisdom. All that we find in the created world is “raw materiel”, and human wisdom is bestowed upon us precisely in order for human beings to “perfect” the raw materiel into something better. For example, a philosopher asks R. Hoshaiah: if God wants circumcision, why is man not created circumcised? R. Hoshaiah answers: because everything in creation needs improvement, including man. (Gen. R. 11, Theodore-Albeck edition)

A sectarian asks R. Eliyahu why accept the Oral Torah, which is the creation of men, rather, one should accept only the Written Torah which is given by God. R. Eliyahu relates the parable of a king (God) who gives gifts to two of his servants. The gifts are identical amounts of wheat and flax. The wise servant turns the wheat into fine bread, and the flax into a beautiful tablecloth, and awaits the king’s visit. The stupid servant does nothing, but leaves the gifts as they were. The king approves of the actions of the wise servant. R. Eliyahu answers, in effect, that God gave man the Torah as raw materiel, and God gave man wisdom to “improve” the Torah, that is, turn the raw materiel into better things. (Seder Eliyahu Zuta 2, Ish Shalom edition)

The approach in Jewish sources does not belie trust in God’s creation, as some modern proponents of eugenics seem to suggest. Rather, the Jewish approach encourages humans to perfect what God has given as an expression of partnership with God. We are well familiar with the idea that men and women were inducted into partnership with God when God spoke to them saying: “we will make humans in our image”. (Gen. 1, 26; cf. Gen. R. 8, 9) From that moment, life is not created solely by God, but by men, women and God together, and the instruments of reproduction are the bodily incarnation of that partnership. Still, the question remains: just how does one decide when the partner has gone too far in “improving” so as to constitute a violation of the partnership. Indeed, the catch in both of these versions of how to view “perfection of the species” is that it is human knowledge which is determining what “better” means.

Human knowledge is limited, and the desire to know can be so addictive that people abdicate their moral conscience to pursue it. Knowledge is addictive because the desire to know is insatiable. The very knowledge driving humans to know more may blind people to the consequences of their actions. Prof. Robert Oppenheimer worked for the U. S. government on developing the atom bomb. He recounts how he was driven by curiosity to enlarge his knowledge. He describes his insatiable desire to see if his theories would work. But, when he saw the first blast in the desert he was appalled at what he had wrought. He had visions of Faust who sold his soul to the devil in order to achieve knowledge.

Why are scientists in the movies and fiction who clone humans always evil, why are they always “mad scientists”. It seems to me that the reason is because people, at least the writers, cannot trust another human to be in charge of human creation!! By definition human motives and subconscious  drives, including the drive to know more, might mask evil goals, or, at the very least, selfish or tribally centered goals(x-men?).  In the light of all this, the question becomes can we trust humans to determine what “better” means for all, or is there some veto, some limit from Nature, or God, to which we should adhere.

The great ethical discovery of Gen. 1 is not an infinite God, nor even a first creator, but a moral God, one who is good, one who is trusted to create one couple from which all others spring. The trust implied in Gen. 1 is an acknowledgement of God without knowledge of God. It reminds me of how Levinas’ characterizes Descartes’s proof of God. Descartes, says Levinas, is not proving something, but acknowledging something, i.e. acknowledging a reality he could not have constructed out of his own sense data, but more importantly acknowledging a sense of trust in that other we call God. Since such a presence in my mind is a phenomenological impossibility, I acknowledge its reality with no pretense of “knowing”, and I am aware of the trust that the other we call God has in me.

Indeed, for me, the great overriding goal of Judaism is getting close to God, not in mystical union, but a kind of closeness that comes from trust. It is a kind of reliving of the initial trust of God my creator in me, without “knowledge” of God or of myself. Religions develop systems or disciplines whose goal is to extrapolate that trust of God in us to others who are human. The same holds true for Gen. 2 and 3, which keep that insight, even though those chapters add evil as a component in the world. Note that the source of evil is the human desire for knowledge. Are Eve and Adam the first “mad scientists”?

Is there any source in our tradition which addresses this basic ethical issue of the limits of human tampering with nature as God created it? In the Torah we find laws relating to physical flaws that invalidate a sacrifice. In general, one can bring sacrifices of the approved animals or birds, but if the creature has certain flaws, they may not be offered as sacrifice. Among all of these rules we read: “You shall not offer to the Lord anything [with its testes] bruised or crushed or torn or cut. You shall have no such practices in your own land, nor shall you accept such [animals] from a foreigner for offering as food for your God, for they are mutilated, they have a defect; they shall not be accepted in your favor.” (Lev. 22, 24)

On the face of it this seems simple enough. An animal whose testicles are destroyed cannot be brought as a sacrifice. Certainly, this qualifies as a physical blemish. But, this verse adds “you shall have no such practices in your own land.” This addition implies that these are not blemishes of nature or of accident, rather that people have deliberately damaged the animals reproductive organs so that it cannot reproduce. Indeed, from this verse it is clear that castration, in Hebrew “sirus”, is not confined to removing the testes, but any action that damages them in such a way that prevents procreation is considered castration.

Perhaps some custom of the ancient world is being negated here, as in other parts of the sacrificial system. What is clear is that the Torah sees it as a transgression to deliberately prevent procreation by tampering with the reproductive organs.

In the Talmud, the scope of this verse is enlarged: “From whence do we know that it is forbidden to castrate a human being? It is written: “no such practices in your own land”, that is, “do not do such to yourselves”.” (Shabbat 110b). Indeed, the Talmudic discussion makes it clear that castration, as defined above, is prohibited for animals, fowl or humans, at all times and in all places.

Rambam summarizes the prohibition: “It is forbidden to cause the loss of usefulness of reproductive organs in humans, in wild and domestic animals, and in fowl whether in pure or impure species, whether in the Land of Israel or outside of it.” (Yad, Issurei Biah, 16, 10)

This sweeping prohibition against genital mutilation is unusual. True, the Talmud discussion includes an opinion which allows sterilization by drinking a potion, “kos shel ikkarin”, but even that opinion is restricted to old women. What is clear is that genital mutilation, producing sterilization, in men and women, is an anathema to our tradition.

This question arises in Rabbinic responsa in regard to men who were sterilized during prostate surgery, and in some cases of men who were sterilized by the Nazis during WW II. Two halakhic questions accompany these responsa. One is if the person, or the physician, has violated the prohibition against “sirus”; and the other is if this is considered in the category of “petzua’ daka”, one whose testes are crushed, who is forbidden to be part of Jewish society. The upshot of this would be that such men would have to divorce their wives and could not live in Jewish society. Some rabbis rule that such people are forbidden to live in Jewish society, but most poskim allow them to live among Jews by finding ways of not including them under the categories of these two prohibitions.

 

Those who are lenient argue on the grounds of: a) “pikuah nefesh”, that is, in the case of an operation it was necessary to prevent the ducts from carrying semen in order to prevent potential loss of life; b) or that the prohibition of “patzua’ daka” is only for physically visible signs of mutilation, but if the sterilization is internal that does not constitute an offense (some poskim apply this criteria to internal sterilization as well). (cf. piskei Uziel be-sheelot ha-zeman 55; Iggrot Moshe Even ha-ezer 4, 28; Minhat Yitzhak 5, 13 and 8, 124; Tzitz Eliezer 10, 25, 24; among others.)

Still, the meaning of the prohibition against genital mutilation of any type that leads to sterilization is not spelled out. It seems, on the face of it, to be a cruel act, but are there other reasons? Ibn Ezra in his comment on our verse says simply: “you shall not defy [change] an act of God.”

I believe that this is not merely a simple assertion that we should not intervene in what God creates. It seems to me that Ibn Ezra is pointing to much greater issues. The organs of reproduction are, after all, the most direct instruments expressing our partnership with God, as we saw in the Midrash on Gen. 1, 26 cited above. To destroy them, or make them useless, is to defy God’s partnership, and it is to defy God’s belief, trust, in humanity. The range of human genetic conditions gives opportunity for every individual human being to integrate what we don’t have with what we have, and vice versa. It is such a process of integration that enables the weak to be strong, and the strong to understand that they are weak. This is a path of wholeness without which humanity cannot achieve its spiritual potential.

It seems that the underlying assumption of these halakhot is that all humans are endowed with equal rights by virtue of their belonging to the human species. This is true of halakha in general. In our specific case of sterilization, the partnership in the process of creation with God which all humans possess is equal for all humans. That is, all humans are a point on the line of humanity that begins with God’s creating the first couple. Every point on a line is equal in value to every other point on the line.

Thus, in the prohibition of sterilization as presented in Jewish tradition, we discern a nexus of the questions raised in this article. Given the assumption of partnership and equality in reproduction, is it ethical for humans to use their knowledge to limit or destroy reproduction vis a vis part of the human race thereby striking down the notion of equality? If the answer to this question is yes, namely, that there may be cases where such an injury to the notion of equality could be justified, we must know what the criteria of justification must be. What are the ethical limits on making such changes?

 

There are those who deny the connection between reproduction and recognizing that all humans are connected to God’s image. This approach is dramatically illustrated by the view that sterilization is a way of “enhancing humanity”, which was a euphemism for saying that certain people were less than God’s image and should be prevented from reproducing. This is a popular view in most modern states and is embodied in the movement known as “Eugenics”.

In his PHD dissertation Dr. Barry Mehler wrote:

“In 1982, Yale psychiatrist Robert Jay Lifton published an important article, “Medicalized Killing in Auschwitz,” in which he examined the imagery of killing as a medical procedure. Lifton was interested in just how German physicians were able to rationalize their participation in mass murder. This led Lifton to focus on “the motivational principles around ideology, and the various psychological mechanisms that contributed to the killing.”

“Lifton emphasized the importance of the belief that killing was a therapeutic imperative. German physicians propounded an ethic which placed the doctor’s loyalty to the nation as “cultivator of the genes” above his responsibility to the individual patient. As one Nazi SS doctor explained it, he participated in Auschwitz exterminations “out of respect for human life.” Just as the physician “would remove a purulent appendix from a diseased body,” so he was removing degenerates from the “body of Europe.” The comparison of degenerate humans with cancer cells and disease is recurrent throughout European and American eugenic literature.” (“A History of the American Eugenics Society,” (U.of Illinois, 1988)) [emphasis mine.]

Today, most people disavow the Nazi position that “improvement” of the species means the dominance of one particular group. On the other hand, many people are willing to say that gene testing and genetic engineering will improve the species by eliminating some genetic diseases, etc. This may be a benefit for the individual. An individual facing the birth of a baby with down’s syndrome may be so psychologically distressed that abortion may be justified. But, how will it affect the whole human race if this decision in an individual case is made a general rule enforced by governments? All of this raises the important question concerning our almost total lack of knowledge of how gene tampering or limiting reproduction based on gene testing will affect the human species in the future. Indeed, who can say clearly and specifically what is being promoted in genetic research?

Do we really want to totally rid the human race of people with Down’s syndrome, for example? This points up the fact that genetic testing, when used this way, constitutes a kind of sterilization. On the other hand, people with special needs are not treated equally in many ways that have nothing to do with their particular disability. Jewish ethics emphasizes the need for inclusion of the specially needy and greater respect for them.

There is no doubt that the knowledge we are gaining can be used to enhance the quality of life, and, indeed, the species itself. But, we have a difficult task in defining the line where humans stop “imitating God” and begin “playing God”. We must be wary of overemphasizing the genes, as if they were God. People say “its all in the genes”, and usually mean by that that humans are not responsible for their actions. This approach devalues the environment as a factor in promoting goodness in people, and in promoting quality of life, even for those with special needs. We must always explore the reciprocal relationships between genes and environment, rather than think that by “fixing” genes all things can be neatly solved. Part of the power of the Nazi’s “science” of racism was that it made moral assessments of a person’s worth pre-determined on the basis of being born into a particular “race”. One vexing problem we need to face is that there are Jewish texts and Jewish groups who also assess a person’s worth based on whether they are born Jewish or not, or on whether they have “disabilities” or not. For me, those texts and groups need to be disavowed in the same manner. (cf. “ha-zechut le-tipul refui” cited above)

Judaism, as I see it, is not compatible with a mindset of “genetic determinism”. Judaism stresses the individual’s responsibility for their own actions, and the surety of society for the actions of all. Most religions, certainly Judaism, stress that the question in relating to a person’s worth is not so much what that person is at any given moment, but what they can become. The Divine capabilities within each human, represented by the phrase “tzelem Elohim”, Divine image, need to be cultivated. For example, a person with Down’s syndrome can be challenged, and challenge themselves to achievement so that all who encounter her are inspired.

I wrote a few years ago about Tamar, a girl with Down’s syndrome who challenged herself to her limit in order to do all the things we expect of our bat mitzvah children. The inspiration that all present got from her that day is part of our community being. Tamar continues to come to services and take her rightful place as a member of the congregation. Shall we “dumb” down our emotions and spirit by mechanically eliminating such possibilities from human society. Can we “fix” every human shortcoming by genetic engineering? If we do, what happens to creativity and cultural foment. Will a world of conformity of human genes be a brave new world?

With the cracking of the human genome and the increase in genetic knowledge, the danger increases of immoral positions being touted in the name of science or of progress. The dangers of assuming power over another persons’ reproductive system, as discernable in the halakhah, touch on the very issues of the worth of humans, equality of rights, and fairness. Some people, both without and within Judaism, teach that certain members of the human species do not have Divine attributes. Some teach that certain phenomenon, like Down’s syndrome, which they feel do not “contribute” to the race, should be eliminated. Others may hold that certain phenomenon, like homosexuality, are “abominations”, and thus should be eliminated, if the gene can be found that produces these phenomena. In the light of the halakhic discussion presented in this paper, we have to take a strong stand against these approaches and assert the Jewish value of the equality of rights of each human.