Babies born to surrogate mothers in Nepal face religious obstacles once they arrive here

Expert says infants are not considered halachically Jewish, and thus will likely face conversion opposition from Chief Rabbinate.

April 29, 2015 01:37
4 minute read.
AN ISRAELI holds his surrogate-born baby as he disembarks yesterday from a plane at Ben-Gurion Airpo

AN ISRAELI holds his surrogate-born baby as he disembarks yesterday from a plane at Ben-Gurion Airport after being evacuated from Nepal.. (photo credit: AMIR COHEN - REUTERS)

The arrival in Israel this week of a score of newborns – including two premature babies – born to Indian surrogates living in Nepal, has shed light on the little-known ethical, financial, religious, medical and social problems surrounding the issue.

Homosexual Israeli men who want children of their own have to go abroad for their babies to be “produced,” since they are not covered by the Surrogacy Law. While lesbian couples wishing to have children can easily receive a sperm donation, gay men wanting biological children cannot make surrogacy arrangements supervised by the Health Ministry.

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Surrogacy arrangements in Nepal have become common for aspiring Israeli fathers, and a number of agencies help facilitate the process.

Two premature babies produced by surrogacy in Nepal – one born at 32 weeks and the other at 34 – arrived in Israel on Tuesday and were rushed to the premature baby unit at Schneider Children’s Medical Center in Petah Tikva. All things considered the infants are in good condition, one weighing 1.9 kg. and the other 1.7. Two senior doctors and a nurse from Schneider are currently in Nepal to help treat Israeli and local babies.

But none of the infants who arrived are halachically Jewish, according to Dr. Tamar Catz-Peled, a senior lawyer and surrogacy expert at the University of Haifa. Catz-Peled told The Jerusalem Post that the fetuses were produced by the men’s sperm and ova purchased in the US, South Africa and other countries from non-Jewish women. She said some fathers who have already gone through this process have encountered difficulty converting the babies, depending on the local rabbinates, which insist they be raised in an observant environment.

There are different opinions within Jewish law as to the Jewish status of surrogate children depending on the circumstances of how the baby was conceived – including whether the ova came from a Jewish woman and whether the surrogate mother was Jewish.

The Chief Rabbinate in Israel has ruled that all babies born through surrogacy need to be converted if the parents want their child to be considered Jewish. Conversion for a minor is essentially at the discretion of the rabbinical judges serving on a conversion court. If they decide to accept the child, the baby requires immersion in a mikve and circumcision if it is a boy.

Conversions are conducted through the four national rabbinical courts for conversion.

Although the process for converting a minor (under 12 for a girl and under 13 for a boy) is at the discretion of the rabbinical judges, in practice such conversions in Israel are more difficult.

According to the ITIM religious lobbying group, the rabbinical courts require parents who are not religious to adopt a certain level of Shabbat observance and commit to sending their children to religious schools – in some cases even other children already born or adopted to them. As a general policy, the rabbinical courts will also not convert babies born to a single parent or to a single-sex couple.

Surrogacy is illegal in many countries abroad due to the concern that it could lead to human trafficking. It is legal in the US and used to be legal in India and Thailand. But two years ago, India decided to forbid it so as not to contravene international agreements over human trafficking, Catz-Peled said.

Surrogacy arrangements are very expensive in the US, costing about $150,000, compared to $30,000 in Nepal. But today the Nepalese government only allows surrogacy for married heterosexual couples, and the woman who delivers the baby is considered the mother. Thus Israeli homosexual couples were excluded, Catz-Peled said.

At least two Israeli agencies arranging surrogacy agreements abroad circumvent the prohibition by “importing” women from India who live “in substandard, crowded conditions” in Nepal to carry and deliver the babies, she said.

The agencies, Catz-Peled said, get most of the money, while the surrogates receive $5,000- $6,000.

“So after the chaos from the earthquake hit, pregnant surrogates whom the fathers wanted to come to Israel to complete the pregnancy were warned about the risk of flying to Israel and other possible complications,” she said, “with the Israel consul in Kathmandu witnessing their signature.”

Catz-Peled said she strongly supports amendments in Israel’s surrogacy law that would allow anyone – single or homosexual – to arrange surrogacy in Israel rather than be forced to go abroad. But she said she “strongly opposes” the section in the law that sets a ceiling for the payment to an Israeli surrogate at about NIS 150,000.

“These women may be endangering their bodies and health, so they should be paid according to what the market will bear,” she said. “It will raise prices, but they have a right to get more.”

She added that since surrogacy became legal in Israel in 1996, about 300 infants were produced. Last year alone, there were 100 babies carried by 45 surrogates.

“It is a very complicated issue, and I may write a book on it,” she said. “The Health Ministry does not consult me.”

Jeremy Sharon contributed to this report.

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