Surrogacy

She'ela:
Is an infertile couple's use of a surrogate mother acceptable? Specifically, is it permissible to:
1. Use an ovum surrogate?
2. Pay her for her services?
3· Employ a gestational surrogate?
4· Is the mitzvah of procreation met through a surrogate birth?

Halakhic authorities are in agreement that a couple has no duty to resort to surrogacy to fulfill the mitzvah of procreation.

What is a Surrogate?
1. The surrogate is an ovum surrogate: both her ovum and womb are used. She is impregnated by artificial insemination with the sperm of the intended father and agrees to give the newborn over to him and his wife.
2. A gestational surrogate, the second category, essentially serves as an incubator. The gestational surrogate is impregnated through in vitro fertilization with a fertilized ovum of the intended parents.

Surrogacy arrangements usually involve pay and a written agreement
Surrogacy contracts serve to protect the surrogate's interests and to assure clear expectations for all parties involved.'' Among the items often contained in an agreement are:
• Complete freedom of choice for the surrogate prior to conception, including the right to withdraw from the agreement.
• Payment for the surrogate of all medical costs, psychological counselling, attorney fees, and living expenses or pay (not to exceed a reasonable amount); to be paid on a monthly, installment basis.
• A commitment of the intended parents to accept the newborn, regardless of the child's physical condition, and the surrogate's agreement to turn the newborn over to the intended parents upon birth.
• A guarantee of the surrogates' right over her body during pregnancy, which includes the right to operations to protect her health and abortion (which would effect payment). In addition, the surrogate agrees not to abuse her body, including the use of illicit drugs, which if violated to the detriment of the fetus allows for compensatory damages.

Potential Problems

• a third-party who may change her mind and assert her maternity of the child.
• For the future child there is the potential stigma of having been born to a woman who is not part of the child's life.
• There is also an ethical concern in barring access of a genetic mother to her child.
• Additionally, in contrast to adoption, in surrogacy arrangements parents accept responsibility for a future child who may turn out to be impaired.

Is there any precedent?
Early rabbis, however, possessed a prescient imagination and were able to envision embryo transfer.
Targum Yonaton says that Dinah was conceived by Rachel and transferred to the womb of Leah, and Joseph was conceived by Leah and transferred to the womb of Rachel. (Based on Berachot 60a)
The background of the legend is the story that knowing that Jaeob would become the father of a total of twelve sons and not wishing her sister Rachel to bear fewer sons than the maidservants, Bilhah and Zilpah, Leah prayed that her already conceived fetus be born a female. In Berakhot, her prayer is answered by a sex-change. However, Targurn Yonaton, on Gen. 10:2, ssuggests that an emhryo transfer occurred to solve the problem.

Back to the Bible
Despite God's promise of progeny, each of the patriarchs had wives who confronted infertility. Reflective of the pain of these couples are Rachel's words to Jacob: "Give me children lest I die!" In response, "Jacob was incensed at Rachel, and said, 'Can I take the place of God who has denied you fruit of the womb?"' Jacob's anger reveals both his frustration and limitation. There was no medical knowledge in his day that could have solved Rachel or Jacob's infertility. An infertile couple only had prayer and the possibility of the aid of a third pa1ty- which we will see was Rachel's solution.

Consistent with the matriarchs' primacy in the marriage, when children are born to Bilhah and Zilpah, it is Rachel and Leah who give the children their names. When Rachel says, "she shall give birth on my knees," she uses language similarly found as a formal act of adoption in contemporaneous Hittite documents. The children born to the handmaids are considered Jacob's sons and are included among the twelve tribes along with the natural sons of Leah and Rachel.

Midrash Samul 4:1; Midrash Temurah as cited in Otzru 1~lirlrashim,
Once Rabbi Yishmnael and Rabbi Akiva were strolling in the streets of Jerusalem along with another man. They met a sick person who said to them, "Masters, tell me how I can be healed:' They quickly advised him to take a certain medicine until he felt better.
The man with them turned to them and said, "Who made this man sick?"
"The Holy One, Source of Blessing," they replied. "And do you presume to interfere in an area that is not yours? He afflicted and you heal?!"
"What is your occupation'?" they asked the man.
"I'm a tiller of the soil," he answered, "as you can see from the sickle I carry."
"Who created the field and the vineyard?" And you dare to move in an area that is not yours? God created these and you eat their fruit?"
"Don't you see the sickle in my hand?" the man said. "If I did not go out and plow the field, cover it, fertilize it, weed it, nothing would grow:'
"Fool," the Rabbis said, "just as a tree do not grow if it is not fertilized, plowed and weeded - and even if it already grew, but then is not watered it dies.
So the body is like a tree: the medicine is the fertilizer and the doctor is the farmer:''

Rabbi Jakobovits, the former chief rabbi of England 1975
Hardly less offensive to moral susceptibilities is the proposal to abort a mother's naturally fertilized egg and to reimplant it into a "host-mother" as a convenience for women who seek the gift of a child without the encumbrance and disfigurement of pregnancy. To use another person as an "incubator" and then take from her the child she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity

Baby-Selling
Baby-selling is repugnant to the Jewish tradition and illegal in all fifty states. Hence, a mother in the United States may not receive payment for her child when she turns her offspring over to another couple for adoption. Nonetheless, most surrogate birth arrangements involve pay. Is the pay to a surrogate mother the equivalent of baby selling?

עוֹסֵק - Exploitation

• "Thou shall not oppress your neighbor."
• לֹא-תַעֲשֹׁק אֶת-רֵעֲךָ

May be understood more broadly as a moral condemnation of taking advantage of the distress, weakness or inexperience of another person.
Concerns of Surrogacy
1. Exploitation
The charge that surrogacy is exploitative is rooted in a variety of concerns: abuse of poor women by the rich; insensitivity to the birth mother's sacrifice in surrendering a child; frivolous avoidance of natural childbirth by fertile women; and undue risk with devaluing and commodifying the body.
2. Slavery

• The service as a surrogate is not to be equated with slavery, which some have done. A woman makes the choice in a free-willed manner and is given the right to withdraw at any point. She is not giving up her womb permanently, but using it for a specific purpose which is inherently time-bound

3. Surrogacy as a form of prostitution
4. Violating the Marital Bonds
5. Unjustified Risk
God commands: "Guard your lives carefully."This charge led the codifiers of Jewish law to say that a person should not unreasonably risk his or her life. No doubt giving birth entails risk.

אַסְמַכְתָּא - Finality of Conditions
Can one make a binding contact in surrogacy?
Can a woman in fact make a final decision to relinquish a yet unborn child or during the pregnancy a surrogate should have the right to withdraw from the agreement - an extension of her freedom of choice.?

Davar She-Lo Ba La-Olam - Something which is not yet in existence
Parties could not technically give title to that which did not yet exist.

DINA DE-MALKHUTA DINA (Aram. דִּינָא דְּמַלְכוּתָא דִּינָא)
*the law of the land is the law*

Conclusion
It is permissible to employ a surrogate, whether gestational or ovum, to overcome infertility and to serve as a surrogate.
A man fulfills the mandate of procreation in having a child with a surrogate.