Surrogate mother in Denver helps Israelis have twins: 
A humanitarian story with halachic implications

By Ken Katz, MD
Intermountain Jewish News, April 6, 2001

Recently, I had the joy of officiating at britot for twin boys. That, in itself, is a special mitzvah. But, what made this simcha even more special is that the Israeli boys were conceived in vitro and developed in the womb of a surrogate mother from Denver.

I became involved with this family about five months before their birth, when the genetic mother called me for advice about her boys’ britot. The genetic parents are an Israeli Jewish couple who, after an eight-year history of infertility, finally opted for their only remaining option for having children, the in vitro fertilization of the father’s sperm and mother’s eggs, followed by implantation of the tiny zygotes into the womb of a surrogate mother.

All other fertility methods had been unsuccessful.

Through the Internet, the parents found a surrogate mother living in Denver.

There are laws in Israel that limit the availability of surrogates. They have to be single and pass rigorous physical and psychological testing. The laws are less restrictive in the US.

Although the genetic parents are both Jewish, the surrogate mother was not Jewish. She carried the twin boys almost to term and gave birth to them by Cesarean section.

The Israeli parents were present for the birth and began caring for the children immediately after birth. The surrogate has had no difficulty in relinquishing the boys to their genetic parents, feeling fulfilled that she has given the ultimate humanitarian gift of helping another couple have children.

When I first heard their story, I wondered whether a halachic ruling existed on whether the boys would be considered Jewish from birth or whether they would need to be converted to Judaism.

Their parents were taken aback when I suggested they may need conversion. As far as their parents were concerned, these were their children, coming from their genetic seeds, who would be raised by them. But under civil law, they needed to be relinquished by the surrogate mother and adopted by their genetic parents. I told the parents I would discuss this fascinating halachic question due to advances in modern technology with various rabbis and get back to them.

I spoke with several rabbis to get various viewpoints. I was surprised to find essentially the same response from each of them.

First, each was intrigued, and said this is a fascinating halachic question. None had an immediate answer. Each wanted to check with their own rabbinic authorities and other sources. But after checking, each came back to me with the same advice: Although there are opinions that the boys are born Jewish, there are also those who rule that they need to be converted to Judaism. Hence, it is best to do the bris “leshem gerut” — in the name of conversion.

This way, should anyone question their Jewish identity in the future, they can demonstrate that their Jewish status was assured.

According to Jewish law, as stated in the Torah, a baby is considered Jewish if his or her mother is Jewish. But is this Jewishness conferred by conception, even if through artificial means? Or is it based on the one who nurtures the baby in the womb and actually gives birth?

I guessed that our ancient sages never considered a situation where more than one “mother” could be involved in the conception, carrying and delivering of her infant. I was wrong! In tribute to the broad applicability of Jewish law, there are multiple examples from which we may apply ancient Halachah to this modern day topic of in vitro fertilization.

The examples below are by no means comprehensive. Although the opinions may seem easy to derive, only Talmud scholars familiar with the whole of Jewish law are considered competent to derive halachically legitimate analogies.

Rabbi J. David Bleich, a scholar in Jewish medical ethics and professor of Jewish ethics at Yeshiva University, has written widely about the Jewish perspective on this and other bioethical issues. In volume IV of his Contemporary Halakhic Problems (1995), he summarizes the various opinions on maternal identity and conversion in relation to in vitro fertilization.

On one side of the topic, Rabbi Eliezer Waldenberg has advanced the novel view that, in the eyes of Halachah, a child born of in vitro fertilization has neither a father nor a mother. He bases his argument on the fact that the conception is “unnatural” and involves the immediacy of a “third power” extraneous to the father or mother, i.e., the petri dish. With the removal of ova from the mother’s body, any genealogical relationship between ova and mother is destroyed.

Rabbi Judah Gershuni corroborates this argument, noting that a fertilized zygote sustained in a petri dish by means of “artificial nutrition and blood serum” should not be regarded by Jewish law as the child of either parent.

According to Rabbi Bleich, the view that the maternal relationship is predicated upon parturition (childbirth) is based upon the Talmud, Yevamot 97b. The Talmud asks whether the fraternal relationship between male twins born to a woman who converts to Judaism during the course of her pregnancy is affected by the conversion.

Now, a convert is regarded as a “newly born child” with a new soul (neshamah). All halachic relationships with existing blood relatives are severed upon conversion. Hence, the relationship of a child to its mother, and through her to its twin sibling, cannot be regarded as having arisen at the moment of conception. From the vantage point of Halachah, a woman who receives an ovum into her uterus that has been fertilized outside of her body is analogous to a pregnant convert. Since a maternal relationship is recognized by Jewish law in the case of a pregnant convert, it must be the process of parturition that establishes the maternal relationship. It follows that parturition also establishes the mother-child relationship in cases of in vitro fertilization.

There is an opposing view, namely, that gestation (accomplished by the woman carrying the fetus) — well before childbirth — determines who the mother is. Rabbi Akiva Eger holds this view based on the Talmud, Sanhedrin 69a. The Talmud says that a male who sired a fetus is to be termed its father immediately upon completion of the first trimester of pregnancy. Rabbi Akiva Eger says that it stands to reason that if the male parent of a fetus is the father, then the female parent carrying the fetus is similarly to be regarded as the mother.

Rabbi Zalman Nechemiah Goldberg, a contemporary authority in Jerusalem, counters that Rabbi Eger’s position is contradicted by the Talmud, Megillah 13a, where the biblical Esther is said not to have had a father or a mother for even a single day. Esther’s father died soon after her mother conceived (long before the end of the first trimester), while Esther’s mother died in childbirth. Even though Esther’s mother survived until the end of the gestational period, this Talmudic passage suggests a woman may properly be termed “mother” only after parturition. Rabbi Eger may have discounted this discussion because it was aggadic (taught via exemplary story as opposed to a direct halachic ruling) and hence not a proper source for derivation of a halachic principle.

There is also the view that Halachah may recognize two or more maternal relationships: a relationship based on parturition or gestation, and additional relationships based on provision of the gamete (the egg or the sperm).

An analogy is drawn from agricultural law. It is forbidden to consume newly harvested grain crops until the omer has been offered in the Temple on the second day of Passover. The offering renders permissible not only harvested grain, but also the grain in the field that has taken root but has not yet matured. Talmudic commentators make it clear that this is an issue of determining identity in cases where there is continued growth and development. Even though immature stalks will grow to become halachically recognized as grain after the omer offering, they retain their identity as pre-omeric and nonetheless are permissible.

Professor Ze’ev Low, in Emek Halakhah, argues that there is an analogy between the omer laws and  the maternal identity of progeny born as the result of in vitro fertilization based on a donated ovum. Just as a single grain of wheat may be in part “pre-omeric” and in part “post-omeric,” these children can be considered as having two halachic mothers, the woman who donated the ova, and the woman who carried and gave birth to the children.

As one can surmise from the above discussion, there are various opinions on how to handle the question of who is the halachic mother of these in vitro twin boys. Opinions range from no mother, to the genetic mother, to the mother who carried and gave birth, to both women.

If this issue is not complicated enough when both the egg donor and surrogate are Jewish, what happens if one of the two is not Jewish?

Rabbi Bleich discusses two situations.

The first is that of a non-Jewish ovum donor whose fertilized ovum is carried by a Jewish woman. The child would be considered Jewish if parturition or gestation is accepted as the sole criterion in determining maternal identity. But since some authorities maintain that the egg donor also determines halachic identity, it is best to convert the child if he is to be raised a Jew.

The analogy is made to a pregnant woman who converts to Judaism during her pregnancy. Her offspring could have been conceived by a gentile, but born to a Jewess. If the child is a boy, some authorities recommend that he have a bris l’shem gerut (in the name of conversion). Their thinking is that although the fetus underwent mikveh with his mother at her conversion, he should also undergo a bris in the name of conversion.

There is a problem if this child is to be returned to the egg donor to be raised in a gentile family. The child may well be a Jew based on the identity of the woman who gave birth to him, but would not be following Jewish mitzvos in a non-Jewish family. For this reason, many recommend against a Jewess volunteering to be an IVF surrogate mother for a non-Jewish infertile couple.

Finally, we come upon the situation of a Jewish egg donor and a non-Jewish surrogate mother — precisely the case of the family concerning whom we started this discussion. If one follows the most common interpretation of Halachah — namely, that the one who gives birth to the child is the halachic mother — then the children would require conversion to be recognized as Jewish.

Even if the possibility of a dual maternal relationship is recognized, conversion would appear to be required for the purpose of acquiring “kedushas Yisrael” (the status of the holiness of a Jew) because of the existence of a non-Jewish gestational relationship.

There are those who would consider the offspring of such a dual maternal relationship to be “half-Jew, half-gentile,” analogous to the status of “half-servant, half-freeman,” discussed in the Talmud in other contexts. If so, the “half-gentile” would presumably require conversion. However, Rabbi Abraham Kilav, in an article published in Tehumin, expresses the cryptic opinion that in such circumstances the child is a Jew. In a converse situation (a non-Jewish ovum with a Jewish surrogate mother), he considers the child a gentile. He is of the view that parturition does not determine religious status.

From this analysis, there are various opinions on how to determine the halachic status of a child born from in vitro fertilization. It has been fascinating for me to take this glimpse into how halachic authorities rule and how ancient Halachah can be applied to new situations. In this situation, there may not be one, clear-cut halachic answer.

With proper rabbinic advice, the boys had britot in the name of conversion, which would remove any ambiguity about their connection to their parents’ Jewish identity.

Once it was explained to the parents that performing their circumcisions l’shem gerut, followed by immersion in a mikveh, would make certain of their status as Jews, the parents were comfortable with this approach. The children are now back in Israel with their parents and doing very well.

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