(ב) הַגִּיּוֹרֶת שֶׁנִּתְגַּיְּרוּ בָנֶיהָ עִמָּהּ, לֹא חוֹלְצִין וְלֹא מְיַבְּמִין, אֲפִלּוּ הוֹרָתוֹ שֶׁל רִאשׁוֹן שֶׁלֹּא בִקְדֻשָּׁה וְלֵדָתוֹ בִקְדֻשָּׁה, וְהַשֵּׁנִי הוֹרָתוֹ וְלֵדָתוֹ בִקְדֻשָּׁה. וְכֵן שִׁפְחָה שֶׁנִּשְׁתַּחְרְרוּ בָנֶיהָ עִמָּהּ:
(2) With regard to a female convert whose sons converted with her, they do not perform ḥalitza for each other’s wives, and they do not perform levirate marriage with them, as their conversions are considered rebirth, and they are considered unrelated. This is so even if the conception of the first son was not in the sanctity of Israel, i.e., the mother had not yet converted when she conceived of him, but his birth was in the sanctity of Israel, as his mother had converted by the time she gave birth to him, whereas the second son was both conceived and born in sanctity. The first son is considered a convert, who is unrelated to his brother. And this halakha similarly applies to a maidservant whose sons were freed with her, as they too are not considered relatives.
תָּא שְׁמַע: שְׁנֵי אַחִים תְּאוֹמִים גֵּרִים, וְכֵן מְשׁוּחְרָרִים — לֹא חוֹלְצִין וְלֹא מְיַיבְּמִין, וְאֵין חַיָּיבִין מִשּׁוּם אֵשֶׁת אָח. הָיְתָה הוֹרָתָן שֶׁלֹּא בִּקְדוּשָּׁה וְלֵידָתָן בִּקְדוּשָּׁה — לֹא חוֹלְצִין וְלֹא מְיַיבְּמִין, אֲבָל חַיָּיבִין מִשּׁוּם אֵשֶׁת אָח. הָיְתָה הוֹרָתָן וְלֵידָתָן בִּקְדוּשָּׁה — הֲרֵי הֵן כְּיִשְׂרְאֵלִים לְכׇל דִּבְרֵיהֶן.
The Gemara cites another proof. Come and hear: Two twin brothers who are converts, and similarly twin brothers who are freed slaves, do not perform ḥalitza for each other’s wives, and they do not perform levirate marriage with them, and if they engage in intercourse with them they are not liable to receive karet for engaging in intercourse with a brother’s wife. If they were not conceived in sanctity and only their birth was in sanctity, they do not perform ḥalitza or levirate marriage, but they are liable for engaging in intercourse with a brother’s wife. If they were conceived and born in sanctity, they are like Jews from birth in all of their matters.
(ג) גרים שנתגיירו ועבדים שנשתחררו אין להם אחוה כלל אפילו אחד מהם הורתו שלא בקדושה ולידתו בקדושה והב' הורתו ולידתו בקדושה ואפי' הם תאומים ונולדו בקדוש' אין להם אחוה עד שיהיו שניהם הורתם ולידתם בקדושה:
(3) Converts or freed slaves have no brothers at all, even if one of them was conceived in an unholy manner but the birth was holy, and the other was conceived and born in holiness. And even if they are twins and they were [both] born in holiness, they are not brothers unless both were conceived and born in holiness.
(ג) הַגִּיּוֹרֶת שֶׁנִּתְגַּיְּרָה בִתָּהּ עִמָּהּ, וְזִנְּתָה, הֲרֵי זוֹ בְּחֶנֶק. אֵין לָהּ לֹא פֶתַח בֵּית הָאָב, וְלֹא מֵאָה סָלַע. הָיְתָה הוֹרָתָהּ שֶׁלֹּא בִקְדֻשָּׁה וְלֵדָתָהּ בִּקְדֻשָּׁה, הֲרֵי זוֹ בִסְקִילָה. אֵין לָהּ לֹא פֶתַח בֵּית הָאָב וְלֹא מֵאָה סָלַע. הָיְתָה הוֹרָתָהּ וְלֵדָתָהּ בִּקְדֻשָּׁה, הֲרֵי הִיא כְבַת יִשְׂרָאֵל לְכָל דָּבָר.
(3) In the case of a female convert whose daughter converted with her and later, as a young woman, the daughter engaged in licentious sexual relations when she was betrothed, she is executed by strangulation, not stoning, the method of execution that would be employed had she been born Jewish. She has neither the halakha of being executed at the entrance to her father’s house, as in the case of a woman who was born Jewish who committed this crime, nor does she receive one hundred sela if her husband defamed her by falsely claiming that she had committed adultery. The reason is that the verses state “Israel” (Deuteronomy 22:19, 21) with regard to these halakhot, indicating that these halakhot apply only to those born as Jews. However, if the daughter’s conception occurred when her mother was not yet in a state of sanctity, i.e., when she was still a gentile, but her birth took place when her mother was in a state of sanctity, as her mother converted during her pregnancy, this daughter is punishable by stoning if she committed adultery as a betrothed young woman. However, she has neither the halakha of being executed at the entrance to her father’s house, nor the right to one hundred sela if it turns out that her husband defamed her. If her conception and birth occurred when her mother was in a state of sanctity, i.e., after she converted, she is like a regular Jewish woman in all matters.
(ו) הגיורת, והשבויה, והמשוחררת, צריכות להמתין שלשה חדשים, דברי ר' יהודה. ר' יוסה מתיר לינשא מיד. וכן היה ר' יוסה אומ' כל נשים יתארסו, חוץ מאלמנה שלשים יום, מפני האבול. וכולן לא ינשאו עד שיהו להן שלשה חדשים.
(6) A convert, a captive, and a freed slave need to wait three months. These are the words of Rabbi Yehuda. Rabbi Yose permits them to marry immediately. Indeed, Rabbi Yose would say: All women are betrothed [immediately], except for the widow because of mourning. And all of them may not marry until three months have passed.
מֵתִיב רָבָא: לְפִיכָךְ גֵּר וְגִיּוֹרֶת צְרִיכִין לְהַמְתִּין שְׁלֹשָׁה חֳדָשִׁים
Rava raised an objection from a baraita: Therefore, on account of the requirement to wait three months, a male convert and a female convert who were originally married to each other and converted need to wait three months before they may remarry following their conversion.
(כא) שִׁפְחָה שֶׁנִּשְׁתַּחְרְרָה וְגִיּוֹרֶת שֶׁנִּתְגַּיְּרָה מַמְתִּינִין תִּשְׁעִים יוֹם. וַאֲפִלּוּ גֵּר וְאִשְׁתּוֹ שֶׁנִּתְגַּיְּרוּ מַפְרִישִׁין אוֹתָן תִּשְׁעִים יוֹם כְּדֵי לְהַבְחִין בֵּין זֶרַע שֶּׁנִּזְרַע בִּקְדֻשָּׁה לְזֶרַע שֶׁלֹּא נִזְרַע בִּקְדֻשָּׁה. וְכֵן יְפַת תֹּאַר אַף עַל פִּי שֶׁנָּתְנָה לָהּ תּוֹרָה שְׁלֹשִׁים יוֹם לְתַקָּנַת עַצְמָהּ צְרִיכָה לְהַמְתִּין תִּשְׁעִים יוֹם לְתַקָּנַת הַוָּלָד. וְהַשְּׁלֹשִׁים מִכְּלַל הַתִּשְׁעִים:
(21) A maidservant who was freed and a non-Jewish woman who was converted are required to wait 90 days [before they marry]. Even a gentile and his wife who convert together are required to separate for 90 days to differentiate between seed that was conceived in holiness and seed that was not conceived in holiness.
Similarly, although the Torah prescribed only [an interim of] 30 days for her own sake, a yefat to'ar must wait 90 days [to marry her captor] for the sake of the definition of her child's [status]. The 30 [days mentioned by the Torah] are included in the 90-day interim.
John D. Loike and Rabbi Moshe D. Tendler in Hakirah, the Flatbush Journal of Jewish Law and Thought, Vol. 16 (2013), pp. 124-125.
[V]arious arguments have been made that support either position—that the genetic or the gestational woman can be considered as halakhic mothers. Therefore, when there are conflicting views and sources, modern Jewish law should accommodate both possibilities and consider the genetic donor and birth woman as halakhic mothers. Rabbi Shlomo Zalman Auerbach supports the view that there are no definitive halakhic precedents that would define motherhood in the case of surrogacy. Thus, halakhah requires the child born from a non-Jewish surrogate to convert and that a Kohen should not marry a woman who was born from a non-Jewish surrogate even though she was conceived using an egg and sperm obtained from a Jewish couple.
Rabbi Judith Hauptman, Rabbi Suzanne Brody and Jessica Rosenthal Chod, Esq.
- We maintain the longstanding halakhah that a child’s Jewish identity is passed down matrilineally and a child should be considered Jewish at birth if its mother is Jewish.
- We also reaffirm the CJLS position that personhood does not begin until birth.
- We further believe that the definition of a Jewish mother should be expanded. We therefore hold that a Jewish mother is either the one who gives birth to the child or the one who donates the egg, even when someone else gives birth to the child, provided the intended parent or parents will raise the resulting child as Jewish. (The intention of the parent to raise the child as Jewish will be made evident in a berit or other naming ceremony, as stated earlier in this teshuvah.)
- If the genetic father is a kohen or levi, his caste is transmitted to the child. No conversion to Judaism is necessary for a child who is the result of either scenario.
Rabbi Pamela Barmash and Rabbi Amy Levin
The authors agree that intent needs to be actuated through a ceremony. Immersion in a mikveh and declaration of intent before a beit din is the ritual in Jewish tradition of affirming Jewish identity when there might be a need for clarification. The beit din also provides a certificate of affirmation: this makes sense since just as the intended parents made an agreement through secular law that the child is the child of the intended parents, so too should there be a formal agreement and certification in halakhah through immersion in a mikveh and declaration of intent before a beit din.