The Knesset Labor, Social Affairs and Health Committee demanded that the Health Ministry committee that considers surrogacy arrangements recognize the recent halachic ruling by Chief Rabbi Shlomo Amar that a married woman can serve as a surrogate to carry and give birth to a child for its infertile biological parents.
The committee, headed by MK Moshe Sharoni (Gil), said on Tuesday that the ministry committee should still regard surrogacy by a married woman as an "exceptional" case that requires special approval.
In the first stages of the Surrogacy Bill, it was stated that only unmarried women could serve as surrogates. But in subsequent readings and in the final version, the bill was changed so that in special cases, a surrogate could be married if an unmarried surrogate could not be found after great efforts by the commissioning couple. The law was made more flexible because legislators feared single women would not agree to be surrogates, thus making the law impractical and inapplicable.
So far, of 336 requests for a surrogacy arrangement in the past 10 years, 290 were approved by the committee, and only two involved married surrogates. A total of 140 children have been born under surrogacy arrangements.
Amar ruled that according to Jewish law, a baby delivered by a married woman under a surrogacy arrangement is not considered a mamzer (bastard), because the fetus did not result from sexual relations between the biological father and the married woman serving as a surrogate.
The chief rabbi's ruling was endorsed by Shas spiritual mentor Rabbi Ovadia Yosef. Other leading rabbinical arbiters, such as former Sephardi chief rabbi Mordechai Eliahu, have ruled that a baby produced by a married surrogate would be a low-status mamzer.
Since being a mamzer is extremely problematic, if one leading rabbi regards a child as a mamzer even if others do not, the child is expected to suffer. Thus the law insisted that such cases be regarded as "exceptional."
The Knesset committee discussion was initiated by Shas MKs Ya'acov Margi and Haim Amsalem. Sharoni said that Amar's ruling was very important, because it is difficult for would-be parents to find an unmarried woman willing to bear their child for them. The greater availability of married women would make it easier to find a surrogate, Sharoni added.
"This is a breakthrough in the religious world and a precedent that does not contravene the Surrogacy Law. It is odd that the ministry committee, which is supposed to be tolerant on this issue, [is opposed to recognizing the precedent]," said the Shas MKs.
Amar's bureau chief, Rabbi Yigal Krispel, said the ruling is clear, and that there is no concern of bastardy if a surrogate is married.
The ministry worries that if the reasons for allowing the married woman and mother of two adopted children who personally asked Amar for his ruling are not specified, any couple would be able to appeal to the High Court of Justice and demand to be allowed to hire a married surrogate. As Amar has not explained why the case he ruled on was "exceptional," the surrogacy committee could not approve all married women for serving as potential surrogates.
Ministry legal adviser Mira Huebner told the Knesset committee that they do not reject the rabbi's ruling on behalf of the surrogacy committee or on behalf of the ministry. "Rabbi Amar's ruling is very important and should be welcomed," said Huebner, "but the question is whether the surrogacy committee has the power to allow a married woman to be a surrogate in every case."