The Surrogacy Episode, Joy of Text 3:10 by Rabbi Dov Linzer

A Surrogate Mother According to Halakha

from the website New Life

The nature of things is that when the process of pursuing surrogacy begins, there arises quite a few halakhic questions. Therefore, we found it necessary to clarify how surrogacy is perceived in halakhah, and to clarify the issue to anyone seeking answers. In fact, until quite recently, opinions were very divided and the process was not well received for halakhic reasons, but it is important to clarify that today most of the poskim approve of surrogacy under the right conditions. In fact, among the applicants to the Ministry of Health to receive a permit for this procedure, can be found religious couples who have received special permission from their rabbi.

Moreover, among the surrogates there are many who are traditional and religious, and they have also received a special rabbinic permit for the procedure. The reasoning behind these permits is that since the purpose of this is to assist couples in fulfilling the mitzvah of pru u’rvu, this is a great mitzvah and therefore there is reason to grant surrogacy must be granted according to Jewish law.

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A surrogate mother according to Jewish law

The Surrogacy Law (in Israel) was enacted in 1996, and it is clear that some of its clauses were enacted with due consideration and responsiveness to halakhic issues, as detailed below:

• Only a couple constituting a man and a woman can be approved by the Surrogacy Committee.
• The sperm used for fertilization in the medical process will always be the sperm of the intended father, who is the spouse of the intended mother, and not a donor’s sperm.
• The surrogate mother will not be a married woman and there will be no family relationship
• (as specified in the law) between the surrogate mother and the intended parents.
• The surrogate is of the same faith of the intended mother.

In addition, the surrogacy procedures in Israel are supervised and controlled by the Committee for the Approval of Agreements regarding Carrying Embryos, and its members include a rabbi who examines each case on its own merits and makes sure that there is nothing that would prevent the parties from undergoing surrogacy procedures.

The basis of the halakhic approval for a surrogacy procedure is the fact that the pregnancy is achieved by medical means and not as a result of a sexual relationship between the father and the surrogate.

A surrogate who is married

The committee’s guidelines change from time to time and recently – in the past two years – there has been a significant change in the committee’s position regarding a married surrogate. As stated, in the past the law forbade a married woman to serve as surrogate, and the reason was a religious concern – the fear of a mamzer (a child born to a married woman other than her husband). In light of the great difficulty encountered by couples in finding a surrogate who is not married and meets all the surrogacy criteria, combined with the fact that an unmarried surrogate is usually interested in a very high fee, the committee decided to expand the circle of potential surrogates to incliude that of married surrogates.

The ruling that changed the status of surrogacy in Halakha was given by Rabbi Amar, who met with a couple who was about to start the process and could not find a surrogate mother who would meet all the criteria, including being single, and who would also be interested in starting the process with the amount of money available to them. In the ruling, the rabbi noted that there is a halakhic controversy, but added that after consulting with Rabbi Ovadia, they agreed that this is a case that requires an exception from what had been accepted until then. In the ruling it is noted that this should not be regarded as a precedent, but it certainly opened the possibility of turning to married women, and it significantly lightened the burden for couples who were interested in finding a surrogate according to halakhah.

While the law has not yet been amended and surrogacy procedures in Israel still exist in accordance with the provisions of the 1996 law in aspects that relate to halakhah, nevertheless, it is without a doubt that today there are leniencies in the matter, and for people who wish to undergo a procedure that does not contradict halakhah in matters of surrogacy – they certainly can do so.

Bi’Mareh ha’Bazak, 9:46 Illinois, United States, USA Sivan 2017

QUESTION:

A couple came to me and presented a complex question about fertilization, and they wanted to act only in accordance with the principles accepted by the rabbis, whether in the United States or in the Land of Israel.

A few years ago the woman underwent a full hysterectomy. The doctors removed the ova from her body before surgically removing the uterus and the organs of reproduction in order to allow her to have children in the future, were she to so desire. In this situation, the way they can have children is to take the husband’s sperm and the ova they extracted from the woman and fertilize the ovum with the husband’s sperm in a test tube, and then implant fertilized ovum into the womb of a surrogate.

This process raises several questions. Specifically:

(a) Is the process itself permitted?

(b) Who may and who may not serve as a surrogate?

(c) If it is permissible to do this, and the surrogate will be a gentile, will the newborn child have to convert?

(d) If a son is born, will there be an obligation of pidyon ha’ben?

(e) If the surrogate is a Jewish woman and a married woman, is there a fear of the child be being a mamzer, God forbid?

If it is permitted to give birth to a child in this way, the couple is interested in not having any questions or doubts about the child’s Jewishness, neither for Ashkenazim or Sephardim (if there is a difference between them) so that, God willing, he will have no problems of familial attribution, neither in the United States nor in the Land of Israel.

ANSWER

There are sources both of Jewish thought and halakhah that encourage a person to actualize the natural desire of all couples to have children. The sterility of some of our forefathers and foremothers has an important place in their appeals to God and prayers, which have become symbols for generations. We will bring two examples. The first is from Isaac and Rebecca, where it is said (Genesis 25:21): “And Isaac turned to God, opposite his wife, for she was barre, and God responded to him, and Rivkah his wife became pregnant.” The second, from the words of Rachel (ibid 30: 1): “And Rachel saw that she had not given birth to Jacob, and Rachel was jealous of her sister, and said to Jacob, give me children, and if not, I am dead.” This natural desire is also anchored in the halakhic obligation imposed on the man in the commandment of procreation and the commandment of shevet, the settling the world. Therefore, there is a great mitzvah for anyone who can provide help in this area. In the face of any halakhic concern, as we shall discuss below, Hazal’s criticism of Jacob’s response to Rachel (Bereishit 48: 2) must ring in our ears: “‘And Jacob’s anger burned against Rachel and said, ‘I am then in place of God, who has withheld from you the fruit of the womb?’ God said to him: ‘This is how you responds to those who are in dsitress?'” (Bereishit Rabba, parasha 71).

We must thank God for the development and progress of medicine in this field, and make every effort to direct scientific knowledge and technological ability into channels that are desirable and permitted according to Jewish law.

Indeed, there is agreement among the authorities that a couple that is unable to bring children into the world in the natural way, has open to them the possibility of bringing children through a surrogate. It should be said that in the situation where this couple finds itself, this is also the preferred method.

It should also be noted that even halakhic authorities who believe that there is no halakhic connection between biological parents and the offspring born through surrogacy, do not deny that, on the biological level, the parents who gave the sperm and the egg are the parents of the child. We cannot ignore the the solution offered to us by this approach, and from the tremendous kindness and prevention of a terrible lack that this solution of medical technology offers to couples in such dire straits.

Many established countries have dealt with the moral questions that accompany this process. One of the problems for which countries must establish legislation and supervise this procedure is the fear of exploitation of women serving as surrogates. It should be emphasized that the requirement to prevent such exploitation is both halakhic and moral, and that the observance of the (secular) law is also part of the halakhic obligation.

The following answer does not permit use of this solution for convenience or in any other case where the mother can conceive and give birth to a healthy offspring without the risk of her life.

Encouraging and empowering women who have chosen to help couples who have found themselves in such a difficult situation is important, and often it is a double act of kindness for both the couple and for the surrogate.

Let us now turn to the halakhic questions involved in surrogacy. Let us begin by saying that there is no ideal approach in this situation, and in any proposed approach problems arise that require halakhic solutions.

The following order reflects our halakhic recommendation for the order of priorities among the various possibilities.

1. There is an agreement among the Poskim that taking the sperm of the father for the purpose of fertilizing an egg is not a prohibition on wasting of seed.

2. All that is needed must be done to ensure that identification errors are prevented at the stage when sperm and egg are in the laboratory and at the stage of transferring the fertilized egg to the surrogate’s uterus.

3. There are halakhic advantages in choosing a Jewish surrogate who is not married. Since a surrogate mother is usually chosen only by a woman who has already given birth and has shown that she is capable of having a healthy child, it is found that in most cases this would be widow or a divorced woman. In this solution, it is imperative to ensure unequivocally that in the future there will be no halakhic concern of intermarriage with relatives who were born from the ova (of the mother contributing the ovum) or from the surrogate mother.

4. There are halakhic advantages, and abroad there are also practical advantages, in choosing a non-Jewish surrogate. The use of this solution will require conversion, for the sake of stringency, of the fetus. And a daughter born of this procedure will not be able to marry a Kohen.

5. There is also an allowance to choose a Jewish woman who is married as a surrogate, and this is how it has been ruled as a matter of practical halakhah [21]. In the opinion of the majority of halakhic authorities, there would be no problem of pedigree, and the child would be a kosher Jew for all intents and purposes [22]. It is possible that couples who do not define themselves as observant are better off with this option than the one that appears in section 4 [23].

6. For the avoidance of doubt, we should make it clear that a child born in a surrogacy procedure is forbidden to marry the relatives of his biological parents who provide sperm and egg. In the case of a Jewish surrogate, there is also a prohibition against marriage with the surrogate’s relatives.

Regarding pidyon ha’ben, the question arises only in the case of the surrogate mother who has not yet given birth, which is not a common case, because usually only a woman who has already given birth is chosen.

FOOTNOTES

[NOTE: Extensive footnotes of the above follow in the original. We include here only the footnote regarding the question of a married surrogate.]

[21] The Rishon LeZion and the Chief Rabbi of Israel, Rabbi Amar, ruled in accordance with the opinion of the Rishon LeZion, Rav Ovadya Yosef, to permit the use of a married surrogate, as detailed in the following comment.

[22] The possibility of a married surrogate should be discussed in several aspects:

(a) Fear of illegitimacy (mamzerut): Halakhic authorities disagree about whether the child born to a married woman who was impregnated by artificial insemination from the semen of another man (who is not her husband), is halakhicly a mamzer. Bah (Yoreh De’ah, 195″5) wrote that he found in the hagahot of Rabbeinu Peretz on Semak, that Rabbeinu Peretz forbade a woman to lie on sheets on which another man lay, for fear that she would become pregnant by this man’s semen and the child could wind up marrying his sister. He was not, however, afraid of mamzerut (although the woman was married), “Because this is not an act of prohibited intercourse, the child completely kosher, even if it is conceived from the sperm of another”… Based on this, Rabbi Moshe Feinstein ruled as a practical matter in Iggrot Moshe (Even ha’Ezer 1:10, and 71, and 2:11) that in the case of a married woman who became pregnant through artificial insemination by the sperm of a man who was not her husband, the child is kosher. So was also ruled in Yabia Omer (EH 2:1), and so have ruled other poskim.

However, a number of poskim disagreed, and are of the opinion that the child is a mamzer even without an act of forbidden intercourse having occurred. The Admor of Satmar (Ha’Ma’or, Av 5724) wrote that the prohibition of adultery regarding a married woman is not only the act of intercourse, but the very fact that a stranger has placed his sperm into the woman. Therefore, in the same way that there is mamzerut that results from forbidden intercourse, there is also mamzerut that results from having given the sperm to a married woman. And this is different than the case of Rabbeinu Peretz, for in that case there was not an intentional giving of the sperm (to impregnate the married woman)… So is also the opinion of Yaskil Avedi (Part 5, Even HaEzer 10). On the other hand, there are also those who disagree with the ruling of Rabbeinu Perez (Zekher Li’Hagigah on Haggiah 15a; Rabbi Eliyahu Meir Blach, “On Artificial Insemination,” Pardes, Sivan 1953), and they believe that mamzerut is not dependent at all on a transgression having taken place, and even if the woman was impregnated permissibly, since she was impregnated with the semen of another man who is forbidden to her – the child is a mamzer. Minhat Shlomo (Tinyana 124) wrote similarly based on Tosafot.. and therefore he concludes that one can not rely on leniency on the method of Rabbeinu Peretz.

In Helkat Yaakov (Even HaEzer 15)… his conclusion is that if a child born from artificial insemination comes with a married woman and the sperm of another Jew who is not her husband, it is impossible to forbid him to come to into the congregation (i.e., to marry a Jewish man or woman), since from the words of Rabbeinu Peretz it is explicit that the child is not a mamzer. And we have not found anyone who disagrees with him explicitly. But lichatchila it is not permitted to bring a child into this world, because one must be concerned that it is possible that Tosafot disagree with Rabbeinu Peretz.

In truth, in Teshuvot vi’Hanhagot (2:690) he rejects the evidence from the Tosafot…

See also Benei Ahuvah (on Hilkhot Ishot 15: 6), Minchat Yitzchak (4:5), Tzitz Eliezer (13:97) and Otzar Ha’Poskim (siman 1, no. 42).

In conclusion, we find three approaches: Some believe that there is no mamzerut save for when there is an act of forbidden intercourse; there are those who believe that even artificial insemination is a violation (of adultery), just as intercourse is; and there are those who believe that mamzerut does not depend on the act of a violation at all, but rather on the fact that the woman was fertilized from the seed of a person who is forbidden to her.

In surrogacy, when a woman’s egg is fertilized from her husband’s sperm by artificial insemination and then the fertilized egg is implanted in the womb of a surrogate mother, even if the surrogate mother is married, the clear conclusion is that there is no fear of mamzerut. According to those who believe that there is no mamzerut except when there is an act of forbidden intercourse, there is certainly no forbidden intercourse here. Even according to the opinion that there is a violation in the artificial insemination of a married woman, here the sperm is not placed in the womb of a married woman, but rather it is a fertilized ovum which is placed there, and there is not basis to forbid this. According to the last approach is that there is mamzerut even with no prohibition being violated, but that as long as the woman is fertilized from the semen of a man who is forbidden to her the child is a mamzer – behold, according to those who say that the one who contributes the egg is considered to be the mother – then there certainly is no problem of mamzerut. And even according to those who say that the surrogate is the mother, nevertheless, she was not directly fertilized by the sperm of a person who is forbidden to her, but rather an egg that was fertilized from his sperm was placed in her womb. If so, it is possible that there is no mamzerut here even according to this approach. And since those who adopt this approach admit that according to Rabbeinu Peretz there is no mamzerut when no prohibition has been violated, and they are only concerned with doubtful mamzerut, out of a concern that perhaps other Rishonim may disagree with him, thus in a case of surrogacy where there are a number of sides to say that even they would admit that there is no concern for mamzerut – we can be lenient.

So ruled Rabbi Yaakov Ariel, in a conversation with him (on the 27th of Kislev 5743), that one should not forbid this from fear of mamzerut(but he forbids for another reason, as will be explained below). Rabbi Amar (with the consent of the Rishon LeZion, Rabbi Ovadya Yosef) allowed in a cases of need for a married woman to be a surrogate, since there is no need to be concerned for mamzerut, according to all opinions. He needed to permit this, since there are many difficulties, practical and economic, to find a single Jewish woman who will agree to be a surrogate. He limited his permission and said that one should not apply it automatically to other cases. However, in the opinion of Rabbi Zalman Nehemia Goldberg (Assia 65-66, p. 47), one must distance oneself from the possibility that a married Jewish woman should serve as surrogate, even though in his opinion there is no fear of mamzeruthere, since the presence of a small number of poskim who believe that this is forbidden has the power to harm the future status of the newborn, lest his genealogy be stigmatized, and so he also communicated in a conversation (on Kislev 5773). However, as noted, there may not even be a minority of halakhic authorities who would actually question the genealogy, and therefore, in cases of necessity, it is possible to be lenient.

(b) The problem of the pregnant woman or nursing mother of a child of another man. Rabbi Yaakov Ariel instructed (in an oral conversation on the 26th of Kislev 5793) that a married woman must not be a surrogate due to the halakha that it is forbidden to marry a pregnant woman or a nursing mother of a child of another man (Yevamot 42a, Ketbot 6, Shulhan Arukh EH 13: 11). Following this, in such a case, a married surrogate will have to separate from her husband.

According to Rabbi Yaakov Ariel, just as the Rabbis forbade a man to marry such a woman in the first place – so they forbade them to stay together after they got married if she is pregnant by another man. So is also the opinion of Tzitz Eliezer (3:27, ch. 4), who wrote in this manner regarding artificial insemination [to forbid,] since a woman would have to leave her husband during the days of pregnancy and breastfeeding.

However, some poskim wrote that the rabbinical decree was only against marrying at the outset, but if she became pregnant after marriage, there is no obligation to separate (Avnei Miluim, 13:1, Yeshu’a Molcho, Even Ha’Ezer, 105; Ezrat Kohen 8; and see Otzar HaPoskim 13:68). And it appears from what they wrote (with the exception of Ezrat Kohen) that this halakhah is not based on the reason behind the decree, but that it is limited to the exact formulation of the edict, and we do not have permission to add to it. And the Rabbis only prohibited them to get married, and did not prohibit a case when they were already married.

(c) In the case of surrogacy such as this, there is also concern for domestic tranquility between the surrogate and her husband, and therefore it must be ascertained that this is done with the full consent of her husband.

[23] Shulkhan Arukh (YD 268:2-3) lists the acceptance of mitzvot as one of the conditions which are required for conversion, even post facto. Therefore, a couple who does not define itself as observant who choose the option in paragraph 4 (a Gentile surrogate), may be prevented from converting the fetus. See Responsa Mareh ha’Bazak 5:85-86.

What is the Halakhic Status Regarding a Surrogate Mother?

from YNET, published 8/12/2008

QUESTION:

What does Halakha say about a surrogate mother?

Hello, I am married, mother of four children. My childhood friend needs a surrogate for her fetus (she has one daughter, who, after complications during childbirth, caused severe damage to her uterus, which does not allow her to “hold a pregnancy”). I’m debating whether to offer to her that I be a surrogate. I wondered what the halakhic opinion is on this matter. Thank you in advance! (Sharon, Tel Aviv)

ANSWER:

Sharon, Shalom.

The desire for children that exists in people is one of humanity’s basic needs. This desire ensures the existence of the world, even as the raising and educating children involves “the anguish of child-rearing” and significant effort of the part of parents. The commandment of procreation is also the first commandment of the Torah for mankind.

The sorrow of people, and especially the sorrow of women, who have no children, is one of the greatest forms of sorrow in the world, and as Rachel said to Jacob: “Give me children, and if not, I will die.” (Genesis 30: 1). Our Rabbis said, following her words, “Whoever does not have children is considered as dead “(Talmud Bavli, Nedarim 64).

Our generation has undergone great development in the field of fertility, and many people who in the past have been deprived of the fruits of the womb now merit in having chilldren.

As is case with Torah matters, our contemporary poskim dealt with this case and expressed the halakhic position, in the various situations, based on a broad view of the distress of people on the one hand, and the halakhic and moral problems that arise on the other.

One of the solutions of recent years for those who have not been able to have children is birth through a surrogate. In this case, the woman’s egg is fertilized from the man’s sperm, and the fertilized egg is “implanted” in another woman’s uterus, and she is the surrogate until birth.

Such a process raises several halakhic and moral questions, for example: (a) Is it halakhicly permissible for a man (who is married) to allow his seed to grow in the womb of a woman who is not his wife? (b) Who is the child’s mother: the mother who contributes the egg, or the woman in whom the fetus grows?

The halakhic authorities (and the Chief Rabbinate), who discussed the matter, ruled that there is no halakhic prohibition in the act, because there is no sexual relationship between the future father and the surrogate who is not his wife. However, they ruled that lichatchilah it should not be done with married women. So it is also stated in the State’s surrogacy law: “The surrogate mother should not be married and should not be a relative of one of the intended parents” (from the Surrogacy Law)

Regarding the second question (as to who is considered halakhicly to be the mother), poskim disagree, and therefore they are strict, and rule that the newborn can not marry his sibling from the surrogate mother, and not from the egg donor. The aforementioned law also requires the “parents” (the man who gives the sperm, and the woman giving the egg) to adopt the child, just like any other adoption.

As for your question, since you are married, in any case you can not legally be a surrogate, and you must look for another woman to agree to this. All the best. (Respondent: Rabbi Shmuel Shapira, Rabbi of Kochav Yair)

“About Surrogacy,” Michael Sheinfeld, Herzog College, Daat, Lech Lecha, 2007, issue no. 266

Introduction

In one of the cases dealt with in the courts regarding surrogacy, a single woman in her forties whose uterus had been removed requested approval from the the Committee for the Approval of Agreements to Carry Embryos to permit her to fertilize eggs extracted from her body by the sperm of an anonymous donor and implant them in the womb of a surrogate. The Committee rejected her request outright, claiming that the law does not allow in vitro fertilization for a woman who has no spouse. The woman petitioned the High Court of Justice. Justice Mishael Cheshin based his opinion on what was said in our parasha (Lekh Lekha)[1]:

Before we get to speaking about surrogacy nowadays, it is worth recalling that the history of our people is strongly tied to surrogacy, the surrogacy of antiquity. It is regarding our forefathers of whom we speak. This was the case in Avram and Sari – before they became Avraham and Sarah – that Sarai had not given birth, and in her distress, because it was great, she sought help from a surrogate mother of those days: “And Avram’s wife had not given birth to him, and she had an Egyptian slave and her name was Hagar. And Sarai said to Avram, ‘Behold, God has held me back from giving birth. Come unto my maidservant, perchance I will be built up from her,’ and Avram listened to voice of Sarai…” (Genesis 16: 1-4). And the rest is history. This was what Rachel did. Leah gave birth to Reuven and Shimon, Levi and Judah, and Rachel did not give birth: “Rachel was jealous of her sister, and she said to Jacob, ‘Give me children, and if not, I will be dead.’… And she said, ‘Behold, my maidservant Bilhah, come unto her and she will give birth on my lap and I will be built up from her’.” (ibid 30: 1-3). And Leah followed in Rachel’s footsteps: “And Leah saw that she had ceased to give birth, and took Zilpah her maidservant, and gave her to Jacob as a wife …” (ibid. 30:9). Many days have passed since then, and a woman’s desire for a child of her own has not faded. Indeed, in our times and in our place – unlike in the days of the past or in other places today – this is no longer a matter of the status of the woman in her family and in society that she be mother – at least not in broad sectors of society. However, the aspirations of a living person to exist and to survive and the desire of a woman a child of her own has not expired … In our days, surrogacy has clothed itself in new garments, but the great depths of the abyss that feed the desire for surrogacy have remained, essentially, when they always were.

The desire for parenthood is a human longing, natural and powerful. It is no wonder that Adam was already commanded with this mitzvah: “Be fruitful and multiply and fill the earth and conquer it” (Genesis 1:28). And the sons of Noah were commanded: “Be fruitful and multiply and fill the land” (ibid. 9: 1). This commandment is one of the 613 mitzvot commanded to the Children of Israel. Such are the words of Rambam in this matter:

We are commanded to be fruitful and multiply for the existence of the species, and this is the commandment of procreation. As it says: “And ye shall prosper and multiply.”[2]

In this spirit, our Sages said: “Every person who has no children is as if he is dead.” [3]… Moreover, a person’s basic human-emotional aspiration to produce offspring also has halakhic consequences, for example, male impotence is a cause for divorce by a woman, even though she is not command in pru u’rvu.[5]

The development of medicine has brought with it a variety of new solutions to the problem of infertility, which is welcome news for couples without children. However, despite the great importance that Judaism attributes to bringing children into the world, both as a fulfillment of a religious commandment and as a response to human longing, there are halakhic limitations in the use of modern medical techniques and weighty halakhic questions about the consequences of surrogacy, especially regarding the child’s personal status and attribution.

Artificial insemination and in vitro fertilization

Since surrogacy involves in vitro fertilization, we will first need to assess the position of halakhah on the question of this procedure.[6] In this regard, halakha distinguishes sharply between fertilization from the husband’s sperm and fertilization from a foreign donor.

There are several halakhic authorities who prohibit even intrauterine insemination from the husband’s sperm, because they believe that ejaculating in a non-natural way (not via intercourse) is tantamount to the destruction of sperm, which is forbidden by halakhah,[7] and in regards to in vitro fertilization Rav Waldenberg agrees with them[8]. But these stringent opinions are not accepted by most halakhic authorities, and these latter authortieis permit sperm donation from the husband, whether by intrauterine fertilization or in vitro fertilization.

Sperm donation from a foreign donor, on the other hand, is forbidden according to to all, but there is a distinction between a Jewish donor and a non-Jewish donor. According to all opinions, halakha forbids the use of the sperm of a Jewish donor, and there are those who define this act as an abomination and a disgusting act [9]. If the identity of the Jewish donor is not known, another consideration is added to the prohibition, namely, the fear that the child of this seed will marry one of this child’s close relatives, such as his sister (without realizing that they are related because they come from the same man’s semen) [10]. As for the newborn’s personal status, some say he is a complete mamzer [11]; there are those who believe that he is a doubtful mamzer [12]; and some believe that he is not a mamzer at all, because he was not born through a forbidden sexual act [13].

It is without a doubt that the use of the sperm of a non-Jewish donor is also forbidden according to all opinions, but there is no halakhic fear that the child born will be a mamzer or that he will marry his sister. Therefore, if the couple is in deep anguish because of their desire for a child, there are those who allow artificial insemination of the woman from the sperm of a non-Jewish donor. [14] However, there are those who prohibit artificial insemination even from the sperm of a non-Jew [15].

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The Question of Familial Relation

After the ovum is fertilized, the procedure continues with the implanting of the fertilzied egg in the womb of a surrogate. It would seem that the act of transplantation itself does not raise special halakhic problems. Indeed, the poskim who dealt with this issue only felt the need to address the child’s familial relation: is he related to his biological mother (the one who supplied the ovum) or to the surrogate?[16]. The answer to this question has many ramifications, both in the religious sphere (whether he is not allowed to marry the relatives of his biological mother or of the surrogate; the mitzvah of honoring one’s father and mother,; conversion if one of the mothers is not Jewish, etc.), and in the the civil sphere (inheritance, etc.).

In this complex question, all possible theoretical views were expressed. Most halakhic authorities believe that motherhood is determined by birth. Therefore, the surrogate mother is the mother of the fetus[17], but some poskim assume that motherhood is determined at the time of fertilization, and the genetic mother is the mother of the fetus[18]. And there are those who believe that the newborn does not relate either to the biological mother or to the surrogate, because the fertilization was not natural, as it was outside the body of a woman, and the child has no mother[19]. And there are those who ruled that there is doubt regarding the question of motherhood, and we must be stringent and say that both women are his mothers [20]…

Implementation of halakhic considerations in Israeli law

The first legislation in Israel regarding surrogacy is the provisions of the Public Health Regulations (In Vitro Fertilization), 1987. Regulation No. 11. These regulations prohibit the implantation of a fertilized egg in a woman who will not be the mother of the newborn, ie, the prohibition of surrogacy.

In 1991, a minor change occurred, when the Nahmani couple sought permission to undergo IVF in Israel and to implant the egg in the body of a surrogate abroad.[33] The Ministry of Health agreed to their request. On 18 June 1991, the Minister of Health and the Minister of Justice decided to establish a Professional Committee for Determining the Matter of In Vitro Fertilization, in all its apsects.” The committee was chaired by retired judge Shaul Aloni, and its other members were: a physician, a sociologist, a philosopher, a psychologist, a rabbi, a jurist, etc. The agenda of the committee was to “To examine the social, ethical, halakhic and legal aspects of the therapeutic methods related to the subject of [IVF], relating, inter alia, to agreements to carry embryos.” The committee sat for about three years and published its conclusions in July 1994.

The Aloni Committee recommended not to ban surrogacy agreements altogether, but ruled that it was right to regulate surrogacy in the law and to limit it in order to ensure the success of the process while preserving the rights of the mother bearing the fetus and the interests of the newborn.

Following the conclusions of the committee, the Knesset passed the Contracts for Embryo (Approval of Agreement and Status of the Newborn) Law, 5756-1996, on March 7, 1996. The law deals with surrogacy, and as its name suggests, it allows surrogacy procedures under restrictive conditions and under state supervision.

The law provides for surrogacy on several conditions: the intended parents are a man and a woman who are spouses (section 1); the surrogate mother shall not be a married woman (section 2 (3) (a)); the surrogate not be a relative of one of the intended parents (section 2 (3) (b)); the sperm used for in vitro fertilization is of the intended father and the egg is not of the bearing mother (section 2 (4)); the surrogate is of the same faith of the intended mother (s. 2 (5)).

Justice Englard commented on the restrictions in the law [34]:

Clearly, these conditions are responsive to halakhic problems related to artificial insemination and surrogacy … Thus, the requirement that the semen be of the intended father, which is the spouse of the intended mother, is intended to prevent the halakhic concerns of ambiguity regarding familial relation, for example, concerns for marrying a brother or a sister that would result from using the sperm of an anonymous foreign donor.

Here is another example of the possibility of casting the old wine of Jewish law into the new vessels of the modern age.

Notes

1] In Israeli Supreme Court, 2458/01, pp. 432-432.

[2] Book of Mitzvot, Positive Commandment 212. Regarding the importance of the commandments of procreation, see, for example, Tosefta, Yevamot (Leiberman edition), Chapter 8, Halakha 7: R. Lazar ben Azariah says: Everyone who does not engage in procreation is a shedding of blood and nullifying the image, as it is written: “In the image of God created man”. And it is written:” And you shall prosper and multiply “and so on. In Midrash Dvarim Rabbah, this is more clearly stated (Lieberman edition, parashat Deuteronomy, 12:12, God your God): “The Holy One, blessed be He, said: “I have not created my world except for procreation,” as it is said: “He did not create it to be void,” and so it says: “And God said to them, Produce and multiply. ” Thus the Creator created Adam and Eve from the beginning, in order to procreate, that they should give birth and bear fruit. Why? For this is the glory of God.”

[3] Nedarim 68b.

[4] Mo’ed Katan 27b.

[5] See: Yevamot 62b, Maimonides, Hilchot Ishot, Chapter 15, Halacha 10; Shulchan Arukh, Even HaEzer, Siman 154, par 6. For the exemption of the woman from the commandments of procreation, see the original explanation of R. Meir Simcha of Dvinsk, Meshekh Chokhma, Genesis 9: 7.

[6] For further details, see A. Steinberg, Encyclopedia of Halakhic Medical Ethics, Vol. I (1988), “Artificial Insemination,” p. 151.

[7] See: Divrei Malkiel Responsa, part 4, no, 107-108; Responsa Teshuva Shlomo, part 2, Even HaEzer, nos. 4-7; Responsa Mishpatei Uziel, Even HaEzer, 19; Responsa Yaskil Avdi, part 5, Even HaEzer, no. 10; Rabbi Rubinstein, Tel-Talpiot, 1935, no. 55. The reasons for all of this are: the removal of the sperm is initially for waste, and the fact that the doctor will then use this semen to fertilize the woman does not negate the prohibition for several reasons: part of the sperm goes to waste in any case; there is a concern that the woman will not become pregnant regardless, and then he will have ejaculated for naught; and there is concern for mishaps, such as mixing the husband’s seed with a foreign seed.

[8] Responsa Tzitz Eliezer, book 15, no. 45 (= ASIA 5 (1986) 84)

[9] See: Responsa of Chalkat Ya’akov, Even HaEzer, no. 12, Responsa Sridei Eish, book 1, no. 79; p. Responsa Tzitz Eliezer, book 3, no. 27.

[10] See: Responsa Igrot Moshe, Even HaEzer, book 1, no. 71; Responsa Sridei Eish, ibid.; Responsa Tzitz Eliezer, ibid.

[11] See for example: Rabbi Israel Waldenberg, Responsa Tzitz Eliezer, part 9, par. Responsa Yaskil Avdi, ibid.

[12] See Rabbi SZ Auerbach, “Artificial Insemination,” Noam 1. (1958), p. 145 and 165.

[13] See Igrot Moshe Responsa, ibid., Responsa Helkat Yoav, ibid. For additional sources, see Rabbi D. Kroizer, “Artificial Insemination,” Noam 1. (1958), p. 111, and 119ff. Even regarding a single woman, the status of the newborn is not free of doubt, for there are those who believe that if the sperm donor is unknown, the fetus is defined as “shukki,” i.e., someone whose father is unknown and he is considered to be a possible mamzer. And it goes without saying that for him as well there is also a fear that he might marry his sister. But recently see the lenient response of Rabbi Ovadia Yosef, Responsa Yabia Omer, book 10, Even HaEzer, no. 10.

[14] Igrot Moshe Responsa, ibid., And see the article by Rabbi SZ Auerbach (cited above, note 12).

[15] See: Responsa of Hilek Ya’akov, Even HaEzer, no. 14, Rabbi Y. Weiss, Responsa Minchat Yitzchak, book 4, no. 5. Compare to responsa Sridei Eish, book 3, no. 5.

[16] For an overview of the methods, see A. Steinberg, Encyclopedia of Medical Halakhah, Vol. 2 (1990), In Vitro Fertilization, pp. 138-130.

[17] See Responsa Tzitz Eliezer, book 19, no, 40 (and it appears that he retracted what he wrote in book 15, no. 45, cited below, footnote 19); Rabbi ZN Goldeberg, “The Attribution of Mothers to Transplanting a Embryo in the Womb of Another,” Tehumim 5, p. 248 (see his reaction to the comments of the editor, ibid., P. 269 and beyond); Rabbi HaLevi Klav, “Who is the mother of a newborn, parent or mother?,” ibid., p. 260.

[18] See: Rabbi S. Goren, Hatzofeh 14 Adar I, 5744, and see also: A. Warhaftig, “Determination of Motherhood – on the Margins,” Tahumin (1984), p. 268. To this view is inclined Rabbi Y. Ariel, “Artificial Fertility and Surrogacy,” Tahumin 16 (1996), p. 171, at pp. 178-177.

[19] See Tzitz Eliezer, 15:45 (but compare to his ruling above, footnote 17). See Rabbi Yitzchak Gershuni, “The First Test Baby in the World in Light of Halakha,” Or Hamizrach 27 (1979) P. 15, which also tends to this view.

[20] See Z. Lev, “A Tested Baby – Status of the Surrogate Mother”, Emek Halacha 2 (1988), p. 163, 169.

[33] Israeli Supreme Court, 1237/91 Nahmani v. Minister of Health (unpublished).

[34] Israeli Supreme Court, 2458/01, p. 793.