Derech Hateva

Are You My Mother?: An Exploration of Legal

Motherhood with Regard to Surrogacy
Chaya Spigelman
S
urrogacy , as a solution to infertility, while seemingly
wonderful, raises a slew of halachic questions: namely the
legal determination of the status of motherhood according
to Jewish law. Te question is simple: who is the legal mother of
a child born of a surrogate? Te woman who carries the fetus to
term and births the child (gestational mother), or the woman
from whom the ovum originates (genetic mother)?
Halachic opinions on this matter date back to the late 1800s when
a certain medical report was published by a physician claiming
that he had successfully performed an ovary implantation that
resulted in pregnancy and live birth. Tis publication prompted
Rabbi Yekusiel Aryeh Kamelhar to respond. He attributes the legal
status of motherhood to the gestational mother alone based on an
analogy to the biblical agricultural law of orlah. He suggests that
just as the fruit of a two year old branch that was grafed onto a
six year old tree is considered permissible to consume because it
has become part of the older tree, the same is true of a body part
grafed into a person, it becomes part of the body into which it
has been grafed and any ofspring of the ovary is the product of
the body [1]. Meaning that nurturing and birth is the determinant
of maternal status, and the origin of the ovum is not signifcant.
One support for this position is the halachic term ubar yerech
immo that describes the fetus as being considered a limb of the
pregnant woman thereby acquiring her religious status. Te
implication of the religion of the pregnant woman informing
the religion of the fetus identifes the gestational mother as the
legal mother of the child. An additional support of this position
originates from a statement made by Rashi in a commentary on
Megilat Esther. In this commentary explaining the redundancy
of the text in calling Esther an orphan and then reiterating that
she had no father or mother, Rashi asserts that this teaches that
motherhood begins with birth and that the act of giving birth
confers the status of motherhood upon a woman [2].
However, at the time that Rabbi Kamelhars response was
published, the fact that the ovum contains genetic information
was not yet known. When this knowledge, that is now taken for
granted and published as fact in scientifc textbooks and other
literature, was revealed, Rabbi Ezra Bick published a response to
the question of legal motherhood that directly contradicts that of
Rabbi Kamelhar. He states that the genetic mother is the sole legal
mother, because it is her genetic contribution that informs the
looks, habits, and all other attributes of the child born, whereas
the gestational mother merely carries the child in her womb [1].
Tere is Torah support for this claim in Gemara Yevamot 42a that
discusses the case of a married couples conversion to Judaism
and states that the husband and wife must observe a three
month separation period in which they do not engage in marital
intercourse following their conversion. Tis is to be done in order
to ensure that any child born subsequent to their conversion is
a Jewish child conceived afer the husband and wife converted.
Tis assertion suggests that it is conception that establishes legal
motherhood rather than gestation and birth making the genetic
mother the legal mother of a child born of a surrogate [2].
Since then, new scientifc data has emerged contradicting
the abovementioned position that the genetic mother alone
determines all attributes of the child born. Te feld of epigenetics
that explores chemical reactions that control which proteins
a specifc cell type produces by switching genes of and on
at strategic times during a persons lifetime has revealed the
phenomenon of horizontal gene transfer, bidirectional cellular
exchange between the gestational mother and the fetus. What
this means is that stem cells, both of the fetus and the gestational
mother, travel between these individuals in both directions via
the placenta and implant in the tissue of the other party during
the process of pregnancy. Tis phenomenon has many varied
implications and values. Clinically, it allows the gestational
mothers immune system to tolerate the fetus which is technically
a foreign body, and cells of the fetus remain within the gestational
mothers tissue even following the birth of the child. While genetic
information in the form of DNA is encoded within the haploid
gamete that is the ovum and informs the genotype of the fetus,
the phenotypic expression of the genetic code is regulated by
epigenetics. Tis implies that the chemical reactions taking place
as a result of the fetal environment afects which alleles of certain
genes are expressed and which are not. In other words, attributes
such as the dietary habits and medical history of the gestational
mother may afect the expression of genes encoded in the ovum
and thereby inform certain characteristics of the fetus [2].
Tis discovery led to changes in the positions of rabbinic
authorities. Te view that both the gestational mother and the
genetic mother are legal mothers has been adopted by Rabbi
Bleich and Rabbi Auerbach. Te implication being that a child
born of a non-Jewish surrogate must be converted due to the
fact that this woman is considered a legal mother of the child
according to the dominant halachic opinion. Tere is also the
alternate minority opinion of Rabbi Menachem Rabinovitch
who applies the principle of mafir zaro to women in saying
that they may waive their rights to the ofspring that results
from fertilization of their ova. He asserts that there should be a
preference for the presumption that the source of the ovum, the
genetic mother, is the legal mother unless she is mafir zara, in
which case the legal mother is the one who nurtures and gives
birth to the child, the gestational mother [1].
Te evolution of this debate regarding the status of legal
motherhood in the case of surrogacy clearly demonstrates how
57
the position of Jewish law can and does change in response to
the advancement of scientifc knowledge in an area that impacts
halacha. While based on certain fundamental principles, both
science and Torah are dynamic entities of which we gain greater
understanding over time.
1. There are multiple forms of surrogacy. One in which a husbands sperm is donated and inserted into a surrogate mother who is not the wife, with the
intent that the offspring be transferred in custody to the husband and wife following birth. A second in which the husbands sperm and the wifes ova are
fertilized in a petri dish and the fertilized ovum is then implanted into a surrogate mother with the intent that the offspring be transferred back to the hus-
band and wife following birth. A third in which the husbands sperm donated via artifcial insemination and an ovum donated by an ovum donor, who is
not the wife, are fertilized in a petri dish and the fertilized ovum is then implanted in the wife; in this case, the fetus would be nurtured in the wifes womb,
but it would not be biologically related to her. This article deals with the second and third cases mentioned here.
2. The law of orlah states that one may not eat the fruit of a tree within the frst three years since it was planted, during which time is has the status of
orlah. In the fourth year, the fruit of the tree obtains the status of neta revii and it must be offered up at the beit hamikdash before it can be eaten. The
Gemara in Sota deals with the law of orlah and asks the question: what if you have a tree that is two years old and another tree that is six years old and you
grafted a branch from the two year old tree onto the six year old tree and fruit grew on the grafted branch the next year; do we view the status of the fruit
on that branch as orlah and forbidden, or seven years old and permissible to eat, asks rabbi abahu? It was determined that there is no law of orlah that is
applicable to the fruit of the grafted branch, because once the branch is grafted onto the seven year old tree, its entire support system is that of the older
tree and it acquires the status of permissible fruit.
3. Mafkir zaro is the halachic concept that a man may waive his rights to his offspring by giving away his sperm, such as is the case when a man donates
his sperm to a sperm bank in order to be used for in vitro fertilization (IVF).
Acknowledgements:
I would like to thank my parents, my sisters and my husband for helping me fnd success in everything I do. I would like to thank Dr. Babich for encourag-
ing me to submit an article as well as helping me locate sources for my article. I would like to thank my co-editors for their continual support throught the
editing process of this publication.
References:
[1] Berman, S. (2013, December). Surrogacy. Medical Ethics: Birth and Fertility. Lecture conducted from Yeshiva University Stern College for Women,
New York, NY.
[2] Loike, D. & Tendler, M. (2013). Gestational Surrogacy. Hakirah, 16, 113-132.
Footnotes: