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Does Halacha recognize the maternal status of egg donors?

May 2, 2013 15:18
4 minute read.
Mother holding baby

Mother and Baby. (photo credit: REUTERS/Erik de Castro)

As opposed to the male contribution to fertility treatments, which is clearly defined, there remain several stages of reproductive activity for females – ovulation, conception, pregnancy and birth – thereby creating complex questions regarding maternity when two women contribute to the process. The legal and moral dilemmas regarding various fertility treatments and surrogacy arrangements remain an ongoing debate within both rabbinic circles and legislatures around the world.

Because of the complexity engendered by reproductive technologies, Rabbi Eliezer Waldenberg entirely opposed the use of in-vitro fertilization (IVF) in general, even when a husband donated the sperm and his wife contributed the egg and carried the baby to term. He opposed the “unnaturalness” of this process and further claimed that children born from such a process lack any legal parents (Tzitz Eliezer 15:45). This position, however, was widely rejected by most decisors, including Rabbi Avigdor Nebenzahl, who argued that we should not outright reject technology that helps couples have children. This remains especially true when no outside donors are necessary and the couple requires reproductive assistance because of physiological problems or fears of genetic diseases. In this case, Jewish law asserts that the genetic father and mother are the legal parents.

One basis for determining legal parenthood in the previous scenario is adoption, which served as the classic case for determining questions of paternity and maternity.

While many Jewish sources praise couples for adopting children (Sanhedrin 19b), Jewish law remains clear that the biological parents retain their status as the legal parents (EH 15:11), even though the adopting couple gains certain rights and responsibilities. Adoption, therefore, serves as a precedent for determining paternity based on the natural parents.

This principle helps clarify the legal status of one form of surrogate motherhood (natural surrogacy) made famous by the 1986 “Baby M” case. In this circumstance, the sperm of a husband is implanted in the host mother, who agrees to abdicate legal rights to the child at the time of birth and allow the wife of the sperm donor to adopt the newborn.

As Rabbi Michael Broyde has noted, when the genetic mother not only provides the egg but also carries the baby to term, Jewish law definitely recognizes her as the legal mother.

(It also recognizes the paternal rights of the father and the ability of his wife to become the adoptive parent.) A more complex case involves scenarios in which one woman donates the egg which undergoes in-vitro fertilization and is then implanted into a different woman (the host mother). In cases of egg donation, the carrier is the wife of the sperm donor with the egg donor playing no continued role. In cases of gestational surrogacy, a third-party woman serves to carry the embryo created from the sperm and egg of a couple (or possibly other donors). In these cases, one cannot simply determine the natural mother since two women play critical roles in the biological development. Jewish law must determine whether such combinations are permissible and what factors determine maternity.

Many decisors, such as Rabbi Shmuel Wosner, believe that any form of egg donation or gestational pregnancy remains prohibited because it causes confusion about personal lineages and leads to multiple health and moral concerns. Other figures believe that it may be permissible when other fertility options have failed, even as they too remain concerned with its potential social implications and demand strict regulation of the process.

Although many doctors prefer that the host mother should have previously had successful pregnancies, most Jewish scholars insist that the mother should not be married, thereby preventing additional questions regarding infidelity. Yet in a well-publicized case in 2006, Israeli Chief Rabbi Shlomo Amar allowed, with much controversy, a married woman to volunteer as a host mother for an impoverished couple who had suffered several miscarriages and could not afford to hire a surrogate mother.

To determine the identity of the legal mother, many decisors have sought to delineate at what stage of development maternity becomes established. Based on a complex talmudic law affirming the filial relationship of twins born to a woman who converted to Judaism when she was pregnant, many decisors have concluded that maternity is established at parturition, i.e. the woman who gives birth to the child is its legal mother. Yet other decisors, including rabbis Shlomo Goren and Ovadia Yosef, have contended that maternity is determined at the point of fertilization, i.e. the genetic mother is the legal mother. One immediate implication for this question is whether or not the child requires conversion, since their status as a Jew stems from the Jewishness of their legal mother.

Some decisors have concluded that the child has, for some purposes, two legal parents, thereby prohibiting them from marrying siblings through either the donor mother or the birth mother. ■

The author teaches at Yeshivat Hakotel and directs the Tikvah Israel Seminars for Post-High School Students.

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