What does Jewish Law Have to Say about Surrogacy? Responsa in a Moment: Volume 7, Issue No. 3, December 2012


Question:

What does Jewish law have to say about conceiving children via surrogates?

Responsum:

I) Introduction

As summarized by Rabbi Elie Spitz in 1997 (pp. 130-134), there are two types of surrogate motherhood. In the case of an ovum surrogate, which is the most common, both her ovum and her womb are used. This is because the intended mother lacks healthy ovaries or the ability to carry a baby to term. The surrogate is impregnated by the husband by artificial insemination and she agrees to give the baby to him and his wife. The first paid surrogacy arrangement occurred in 1980, and by 1997 as many as 4,000 children had been born in theU.S. with 1,000 new arrangements every year.

A gestational surrogate essentially serves as an incubator or as a “tummy mummy”; she is impregnated through IVF with the fertilized ovum of the intended parents. This is because the intended mother has a malformed or absent uterus, a medical condition that would make pregnancy dangerous for her, or a medical condition that would endanger the fetus. The first birth of a baby from a gestational surrogate occurred in 1986.

The average ovum surrogacy costs $42,000, with the surrogate mother receiving $12,000 in payment. In gestational surrogacy, the average cost for the IVF is an additional $22,000. The typical surrogate mother in 1997 was 28 years old, married with 2 children, employed full-time and had 13 years of education

There have been a number of famous lawsuits regarding failed surrogacy arrangements in which the surrogate mother reneged on the agreement, such as the case of Baby M, but out of 4,000 children born to surrogates, only 12 surrogacy related cases had been filed in U.S. courts and in every case, except one, custody was awarded to the intended parents.

The Israeli law from 1996 only allows gestational surrogacy. It states that implanting a fertilized ovum may only be done if:

  1. there is a written agreement between the intended parents and the gestational surrogate;
  2. all parties are adult residents ofIsrael;
  3. the gestational mother is not married; or married if the intended parents prove that they could not find an unmarried woman; and she is not a relative;
  4. the sperm is from the intended father and the ovum is not from the gestational mother;
  5. the gestational mother is the same religion as the intended mother.
  6. the Minister of Health will appoint an Approval Committee consisting of 7 members, including at least 3 men and 3 women: 2 gynecologists, an internist, a clinical psychologist, a social worker, a representative of the public who is a jurist, a member of the clergy according to the religion of the parties involved.

From the point of view of halakhah, the main questions are: is this permissible before the fact? And, after the fact, who is the mother – the woman who donates the ovum or the woman who gives birth to the baby or both?

II) Is surrogacy permitted before the fact?

Back in 1975, surrogacy was opposed by Rabbi Dr. Immanuel Jakobovits in the second edition of his classic work Jewish Medical Ethics (p. 265):

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.

In 1986, Rabbi Dr. David Feldman (p. 73) quoted England’s Warnock Commission of 1984 which recommended against surrogate motherhood arrangements because the potential of abuse is so great. InAmerica, the Michigan Court of Appeals in 1981 viewed the surrogate arrangement as a form of forbidden “baby bartering”.

In 1997, two Conservative rabbis wrote two lengthy responsa on this topic and both were approved by the Committee on Jewish Law and Standards of the Rabbinical Assembly. Unlike many of the Orthodox responsa on this subject which concentrate primarily on the halakhic issue of “who is the mother?” (Irshai, pp. 264-266 and see below), these two responsa summarized below give a good idea of the two sides of the argument from both a halakhic and an ethical point of view.

A) Surrogacy is permitted

Rabbi Elie Spitz, rabbi of Congregation B’nai Israel in Tustin, California, argued in favor of both types of surrogacy and maintained that a man fulfills the mitzvah of peru urevu, to be fruitful and multiply, in having a child with a surrogate.

Rabbi Spitz begins by quoting some of the classic sources regarding the mitzvah to be fruitful and multiply (Genesis 1:28;Mishnah Yevamot 6:6; Bereishit Rabbah 34:4 which was codified inShulhan Arukh Even Haezer 1:1; Megillah 27a; Isaiah 45:18) (For further discussion of this mitzvah, see David M. Feldman, Birth Control in Jewish Law, third edition, Jerusalem, 1995, Chapter 3; Jeremy Cohen, Be Fertile and Increase, Fill the Earth and Master It, Ithaca, New York, 1989; Ronit Irshai listed below, pp. 25-52).

He proceeds to show that three of our matriarchs suffered from infertility: Sarah in Genesis 16; Rivkah in Genesis 25:21; and Rachel in Genesis 30:1-2.

A biblical precedent for surrogacy is that if the shifhah or handmaid, similar to today’s ovum surrogate, who provided both the ovum and the womb:

In Genesis 16: 2, Sarai (Sarah) says to Abraham: “Look, the Lord has kept me from bearing. Consort with my handmaid, Hagar; perhaps I shall be built up [=have a child] through her”. Abraham agrees and Hagar gives birth to Yishmael.

In his comment on that passage, Rabbi Moses ben Nahman, the Ramban (1194- ca. 1270), explains Abraham’s motivation as follows:

“And Abraham hearkened to the voice of Sarah”… Even now [Abraham] did not intend that he be fulfilled through Hagar by having progeny through her.  Rather, his sole intention was to do the desire of Sarah so that she be fulfilled through [Hagar], that she derive happiness of spirit from the children of her handmaiden. (translated by Rabbi Bleich, 1998, p. 261)

Later on, in Genesis 30:3-8, Rachel says to Jacob:

Here is my handmaid Bilhah. Consort with her, that she may bear on my knees and I too will be built up through her. So she gave him her handmaid Bilhah as concubine, and Jacob cohabited with her. Bilhah conceived and bore Jacob a son.

Rachel named the son Dan. Bilhah then bore Jacob a second son and Rachel named him Naftali.

A few verses later, we read in Genesis 30:9-13:

When Leah saw that she had stopped bearing, she took her handmaid Zilpah and gave her to Jacob as concubine. And Zilpah, Leah’s handmaid, bore Jacob a son.

Leah named him Gad. Zilpah then bore Jacob a second son and Leah named him Asher.

Despite the differences between the biblical handmaid and the modern surrogate, there are three shared values:

  1. the use of a third party is permitted as a last resort to ensure an heir to the husband.
  2. Although the children were born to the handmaid, the Torah recognized the maternal role of the intended mother (i.e. Sarai, Rachel, Leah) and gave her rights. The Matriarchs named the children and adopted them.
  3. Although the handmaid was not recognized as a “wife”, her children were treated as descendants of the Patriarch with full inheritance rights.

Rabbi Spitz proceeds to lay out some of the ethical and legal objections which have been made vis-à-vis surrogacy and to refute them:

  1. Paying the surrogate mother is akin to baby-selling i.e. selling babies for adoption, which is against the law in the United States. Rabbi Spitz refutes this comparison at length. (Cf. Irshai, pp. 216-218)
  2. Rabbi Marc Gellman has compared surrogacy to oshek or exploitation as found in Leviticus 19:13: “You shall not oppress your neighbor”. He cites Sukkot 29b: “it is better to do a little good with with what is yours than to do much good by exploiting that which belongs to others”. In other words, a wealthy couple is exploiting a poor woman. Rabbi Spitz replies by quoting Carmel Shalev that just as a man gets paid for using his muscles a woman can be reimbursed for using her womb.
  3. Andrea Dworkin and others have maintained that surrogacy is a form of prostitution. Rabbi Spitz points out the many differences between the two, e.g. the goal of prostitution is a moment of carnal pleasure while the goal of surrogacy is the creation of a child. (Cf. Irshai, pp. 218-219)
  4. Rabbi Gellman has also opposed surrogacy as an unjustified risk. It says in Deut. 4:15:  “Guard your lives carefully”, which the rabbis of the Talmud took to mean that a person must protect their health and life and not take any unnecessary risks (see the sources cited by Rabbi Spitz, note 99 and David Golinkin, Responsa of the Va’ad Halakhah of the Rabbinical Assembly of Israel 4 [5750-5752], p. 41, parag. 5 = www.responsafortoday.com/vol4/5.pdf). Since “the day a woman gives birth is generally the most dangerous of her life”, a surrogate mother cannot justify self-endangerment because she has absolutely no hiyuv or legal obligation to give birth for another couple.
  5. Another halakhic problem might be that of asmakhta, which means that a contract is binding only if we can reasonably presume that the intentions of both parties are serious, deliberate and final. (See Rabbi Spitz, pp. 147-148; Entziklopedia Talmudit, Vol. 2, pp.  108-115, s.v. asmakhtaII). The halakhic question is whether a woman can make a final, binding decision to relinquish an unborn child which is not yet in her womb.
  6. A similar problem is the prohibition against contracts fordavar shelo ba la’olam – “for something that is not yet in existence”. Rabbi Spitz suggests technical ways around this problem.
  7. Finally, some challenge surrogacy as contrary to public policy of preserving family life, as in the quote from Rabbi Jakobovits cited above.

Rabbi Spitz concludes by saying that those in favor of surrogacy should encourage their legislators to enact supportive legislation and then they can follow dina demalkhuta dina, the law of the land is the law.

Surrogacy should be used as a last resort to overcome infertility because of its great financial and emotional costs. Nonetheless when a couple is aware of the risks, surrogacy is permitted by halakhah.

He concludes by saying that a husband who provides the sperm has fulfilled the mitzvah of peru urevu which is incumbent only upon the man.

B) Surrogacy cannot be recommended by halakhah and would be ill advised in most cases.

Rabbi Prof. Aaron Mackler, an Associate Professor of Theology at Dusquene University in Pittsburgh, authored a responsum which is, for the most part, opposed to surrogacy. 

  1. Maternal identity is determined by gestation and birth. The gestational surrogate mother is not just an incubator or a “tummy mummy”; she simply is the mother of the child. (See below for the sources for this approach.)
  2. There is a danger of treating children as commodities. In some cases the intended parents sought to refuse custody of the child born by a surrogate because of birth defects or an undesired gender. (Re. this point, cf. Rabbi Gordis, pp. 9-12).
  3. The typical surrogate is married and has two other children. The psychological harm to children who see their mother go through pregnancy, give birth and then give the child away is very real.
  4. Surrogacy also interferes with the sexual relations of the married surrogate and can have a negative effect on their marital relationship.
  5. The biblical precedent of shifhah cited by Rabbi Spitz is problematic and was abolished by halakhah. (Cf. Rabbi Walter Jacob who points out the differences: that the shifhahremained in the same household as the child and continued to play a major role in the life of the child.)
  6. Rabbi Mackler labels surrogacy safek oshek, possible exploitation.
  7. He concludes with five cautionary statements:
    1. Either member of a couple would be fully justified in a decision not to proceed with surrogacy.
    2. The surrogate mother is the halakhic mother of the child and could contest the assumption of custody by the intended parents.
    3. The surrogate mother may abort if the continuation of pregnancy will seriously threaten her health.
    4. The surrogate mother may be reimbursed for expenses but money cannot be contingent on her giving up custody of the baby. For the surrogate to receive money if she gives over custody is baby- selling.
    5. In the formulation of surrogacy agreements, greatest concern must be given to the rights of the child to be born.

These conditions would be difficult to implement in commercial surrogacy which would severely limit the the cases where this could occur.

If a Jewish woman is the surrogate, then the child is Jewish. This means that either the woman is giving a Jewish child to be raised as a non-Jew or that a Jewish woman can only be a surrogate for Jewish couples. Either option would be highly problematic; Rabbi Mackler does not see how halakhah can authorize Jewish women to serve as surrogates.

III) Who is the mother?

If a Jewish couple goes through with a surrogacy arrangement — with or without rabbinic permission — who is the mother?

This dilemma was hinted at by Dr. Seuss in his classic children’s book Horton Hatches the Egg first published in 1940. In that book, a lazy bird named Mayzie convinces Horton the elephant to sit on her egg while she flies away for a “break”, which turns out to be a permanent vacation in Palm Beach. Horton sits on the egg for many months despite being laughed at, captured by hunters, and being placed in a traveling circus. Just before the egg hatches, Mayzie happens upon the circus and claims the egg as her own. The egg then hatches and out flies an elephant-bird, which is a cross between Horton and Mayzie. In other words, Dr. Seuss would probably maintain that a child born by a surrogate has two mothers – the woman who donates the ovum and the woman who carries and gives birth to the baby.

In any case, the rabbis who have dealt with this issue have expressed three different opinions:

A) The ovum donor is the mother.

This is the opinion of Rabbi Shlomo Goren and others (see Steinberg, note 58 and Irshai, pp. 256-259). Rabbi Goren relies in part on the well-known passage in Sanhedrin 91b about Antoninus and Rebbe, which says that life begins at conception. Rabbi Goren’s view is surprising since, according to that source, all abortions are prohibited. But classic halakhah follows the Mishnah in Oholot (7:6) and other sources that life begins at birth.

B) The surrogate mother is the mother.

This is the opinion of most rabbis who have discussed our topic (see Rabbis Mackler, pp. 176-181; Steinberg, cols. 134-136; Bleich, 1995, pp. 237-272; Irshai, pp. 259-263).

  1. Rabbi Mackler (p. 176) cites the case of a pregnant woman who converts. The child is considered Jewish when it emerges from the womb because the mother is Jewish, despite the fact that the child has non-Jewish genes (Yoreh Deah 268:6).
  2. Targum Pseudo-Jonathan to Genesis 30:21, the piyyut Even Hug recited on Rosh Hashanah and other sources as explained by the Maharsha to Niddah 31a relate that Leah was pregnant with Joseph and Rachel was pregnant with Dinah. Leah prayed that Rachel would give birth to a male and God switched the embryos. Nonetheless, Dinah who was conceived by Rachel and born to Leah was considered Leah’s child; and Joseph who was conceived by Leah but born by Rachel was considered Rachel’s child. Ignoring the legendary nature of this source, it shows that these rabbis believed that the child’s identity is determined by the birth mother and not by the ovum donor. (See Rabbis Mackler, p. 181; Steinberg, col. 135; Bleich 1983, pp. 92-93; Bleich 1995, pp. 247-248).
  3. A third proof is adduced from Yevamot 97b and Yoreh Deah269:4 (see Rabbis Mackler, pp. 177-178; Steinberg, col. 134; Bleich 1995, pp. 242 ff.; Irshai, pp. 259-261).
  4. Among other sources, Rabbi Zalman Nechemiah Goldberg, cites Megillah 13a which quotes Esther 2:7 “for she did not have a father or a mother”. The Talmud explains that she did not have a father because he died following conception and she did not have a mother because her mother died in childbirth. This means that a woman may be termed a “mother” only upon parturition. (Bleich 1995, pp. 249-250; Irshai, pp. 261-262).
  5. Rabbi Mackler adds additional proofs (pp. 179-181), such as the Talmudic phrase ubar yerekh imo, an embryo is part of the mother rather than an independent entity.

C) The child has two mothers – both the ovum donor and the surrogate mother.

This was the opinion of Prof. Ze’ev Low (Emek Halakhah II, 5749, pp. 165-169) as summarized by Rabbi Steinberg (col. 136 and note 65) and Dr. Irshai (pp. 263-264) and as concurred with by Rabbi Bleich (Bleich 1995, pp. 251-258, 272). However, since Prof Low learns this idea from the laws of the barley used for the omer(Menahot 69b), other rabbis reject the analogy between a plant and a human being (see Steinberg, note 65).

III) Conclusions and Practical Halakhah

After examining all sides of this issue, I agree with the majority of rabbis who have opposed surrogacy for the following reasons:

  1. There is no precedent in all of Jewish history for such an arrangement. The biblical precedent of the shifhah is not convincing for four reasons: we are not Biblical Jews but Rabbinic Jews; it was abolished by the halakhah; and it is very different from surrogacy. A shifhah remained in the home of the Patriarch and raised her child. That is the exact opposite of the surrogacy arrangement whereby the mother gives up the child at birth. Finally, we learn from the case of Sarah expelling Hagar and Yishmael that the shifhaharrangement frequently did not succeed (see Ramban and Bleich 1998, pp. 261-262 cited above).
  2. I agree with the majority of the poskim that the halakhic mother is the surrogate mother, which means that we are asking a mother lehatkhila, before the fact, to bear a child and give it up at birth. This too has no precedent and is extremely unethical.
  3. The child is being treated as a commodity.
  4. The surrogacy arrangement will probably have a bad effect on the children and husband of the surrogate mother.
  5. Finally, as I have hinted elsewhere (see David Golinkin,Responsa of the Va’ad Halakhah of the Rabbinical Assembly of Israel 3 [5748-5749], pp. 86-89), a Jewish family is not just about genetic reproduction.It is about producing children in the context of a nuclear family. As we learn in the tractate ofNiddah (31a), “there are three partners in a person, the Holy One Blessed be He and his father and his mother”. Including a fourth person in the equation — whether a second woman via surrogacy or a second man via artificial insemination by a donor — is fraught with ethical and halakhic problems as explained above.

If a couple cannot conceive, it would be much better for them to adopt a child. Rather than create a whole host of ethical dilemmas, adopting a child is a great mitzvah, which provides a loving home for thousands of unwanted children who would otherwise live in an orphanage or on the street. Or, to use the Talmudic idiom: “Anyone who raises an orphan in his home, Scripture considers it as if he had given birth to that child” (Sanhedrin 19b and Megillah 13a; cf. Golinkin, note 8 for additional references about adoption).

David Golinkin
Jerusalem
17 Tevet 5773


 Bibliography

Rabbi J. David Bleich, Contemporary Halakhic Problems, Vol. 2,New York, 1983, pp. 91-93

Idem, ibid., Vol. 4, New York, 1995, pp. 237-272

Idem, Bioethical Dilemmas, Hoboken, New Jersey, 1998, pp. 239-268

Andrea Dworkin, Right-Wing Women: The Politics of Domesticated Females,New York, 1983, pp. 181-183

Rabbi David M. Feldman, Health and Medicine in the Jewish Tradition,New York, 1986, pp. 72-74

Idem, Sh’ma 17, No. 334 (15 May 1987), pp. 108-109

Idem, “The Case of Baby M”, in: Levi Meier, ed., Jewish Values in Health and Medicine,Lanham,Maryland, 1991, pp. 163-169

Rabbi Marc Gellman, “The Ethics of Surrogate Motherhood”, Sh’ma17, No. 334 (15 May 1987), pp. 105-107

Rabbi Michael Gold, And Hannah Wept,Philadelphia, 1988, pp. 120-127

Rabbi Zalman Nechemiah Goldberg, Tehumin 5 (5744), pp. 248-259

Rabbi Daniel Gordis, “Give Me Progeny…”: Jewish Ethics and the Economics of Surrogate Motherhood,University ofJudaism Papers 8/1,Los Angeles, 1988, 27 pp.

Mordechai Halprin and Yeruham Priner, eds., The Second International Conference on Medicine, Ethics and Jewish Law,Jerusalem, 1996, pp. 119-270 (Hebrew)

Hok Heskemim Linsiat Ubarim, 1996 (Israel’s surrogacy law)

Ronit Irshai, Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature,Waltham,Mass., 2012, pp. 216-224, 249, 254-268

Rabbi Walter Jacob, American Reform Responsa, New York, 1983, No. 159, pp. 505-507

Rabbi Immanuel Jakobovits, Jewish Medical Ethics,New York, 1975, pp. 264-265

Rabbi David Lincoln, in Rabbi Aaron Mackler, ed., Life and Death Responsibilities in Jewish Biomedical Ethics, New York, 2000, pp. 188-192 = Responsa 1980-1990,New York, 2005, pp. 638-641 = www.rabbinicalassembly.org

Rabbi Aaron Mackler, ibid., pp. 162-187 (two responsa). The first responsum also appeared in Responsa 1991-2000,New York, 2002, pp. 551-557 and both responsa can be found at www.rabbinicalassembly.org

Fred Rosner, Modern Medicine and Jewish Ethics, second edition,Hoboken, 1991, pp. 113-116

CarmelShalev, The Case for Surrogacy,New Haven, 1989

Rabbi Seymour Siegel, “The Ethics of Baby M’s Custody”, Sh’ma17, No. 334 (15 May 1987), pp. 108-109

Rabbi Elie Spitz, in Mackler, ibid., pp. 129-161 = Responsa 1991-2000, ibid., pp. 529-550 = www.rabbinicalassembly.org

Rabbi Avraham Steinberg, Entziklopedia Hilkhatit Refuit, Vol. 2, Jerusalem, 1991, cols. 129-138, s.v. hafrayah hutz gufit

Rabbi Moshe Tendler, “Infertility Management: Cure or Ill”, Sh’ma17, No. 334 (15 May 1987), pp. 109-110

Noam Zohar, “Artificial Insemination and Surrogate Motherhood: A Halakhic Perspective”, Svara 2/1 (1991), pp. 13-19

Idem, Alternatives in Jewish Bioethics,Albany, 1997, pp. 78-84

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