The Gemara relates: Rabbi Yehoshua ben Levi said: Any person who does not have children is considered like a dead person. The source is as is stated in the words Rachel said to Jacob: “Give me children, or else I am dead” (Genesis 30:1). And it was taught in a baraita: Four are considered as if they were dead: A pauper, and a leper, and a blind person, and one who has no children...And one who has no children, as it is written: “Give me children, or else I am dead” (Genesis 30:1).
Rabbi Ḥanina says: “And the neighbors gave him a name, saying: There is a son born to Naomi” (Ruth 4:17). And did Naomi give birth to the son? But didn’t Ruth give birth to him? Rather, Ruth gave birth and Naomi raised him. Therefore, he was called by her name: “A son born to Naomi.”
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. 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. 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.
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.
Rabbi Auerbach opposes surrogate motherhood a priori. If, however it was performed, both the genetic mother (i.e. egg donor) and the birth mother are considered mothers for Halachic purposes. If either the surrogate mother or the genetic mother is non-Jewish, the child must undergo full conversion to Judaism, even if the surrogate mother herself converted during the pregnancy.