Guest Columnist: It’s time for greater halachic openness

A rabbinic ‘about-face’ on who is considered the halachic ‘mother’ of a child conceived by IVF raises more questions than it answers.

By DANNY SCHIFF
The announcement earlier this month of a rabbinic “about-face” on who is considered the halachic “mother” of a child conceived by IVF raises more questions than it answers. According to the reports, there has been a “complete turnover of opinion” that “developed recently” among the “country’s most influential rabbinic arbiters” that has “not been made public before.”
Until now, the woman who gave birth to the baby was deemed the halachic mother. Henceforth, apparently, it will be the woman who donates the egg who will be regarded as the halachic mother, meaning that if the egg comes from a non-Jew, the baby will be considered a non-Jew even if the woman undergoing IVF is Jewish.
Halachic deliberations on such debatable questions are rarely met with “complete turnovers,” so, if the account is true, this is a noteworthy development indeed. More likely, the ongoing halachic interchange on this matter has now shifted such that the preponderance of rabbis has come to view the egg donor as being the halachic mother.
But this shift in the balance on such a profound matter raises critical questions for those who follow the new majority: What, for example, does this fresh approach mean for the Jewish status of those born through donor eggs and IVF prior to the revision? Do these individuals, many of them devout and devoted, who have regarded themselves as Jews since birth, now require conversion? Conversely, if Jewish women abroad donate their eggs to non-Jewish women, will those non-Jews give birth to Jews (a truly revolutionary idea)? Though raised in entirely non-Jewish circumstances, will these children still be considered Jewish? And if Jewish women are now to be “compensated for their pain and time” so as to encourage donation, does this halachic stance have no qualms with what many will see as the selling of human gametes, the basic stuff of life itself?
THERE ARE many other substantive questions raised by this new direction that will, no doubt, be answered by the rabbis over time.
While they are answering, it is perhaps just as pressing for the contemporary adjudicators of Jewish law to respond to some of the critical questions of process that this “turnover” raises.
Rabbi Mordechai Halperin was correct when he said, while publicizing the now dominant viewpoint, that “it is absolutely legitimate for rabbinical arbiters to reconsider and change their views.” This lucid acknowledgment that there is change in the Halacha, that it is responsive to circumstances and that rabbinic views are not static is healthy.
This reconsideration does, though, raise important questions that deserve thoughtful responses: What changed “recently” that has caused such a dramatic reversal on so weighty a matter? The traditional texts did not change. The science has been refined, but the fundamental IVF technique is unaltered. So what happened? Were the rabbis responding to new sociological realities? If so, this phenomenon also has a long and venerated history. But, if they were, it opens the issue of which sociological changes legitimately call forth a revised halachic approach, and which do not.
What circumstances do the rabbis now see that make the newly ascendant approach to maternity the preferred option? Why are the rabbis moved to respond to that sociological phenomenon, but see no need, for example, to ameliorate conversion procedures for the thousands of Russian olim whose status is in limbo?
It is, of course, rather unorthodox for halachic developments to be revealed by announcement at a conference. And this stimulates other inquiries: Is the impression correct that there was lengthy “behind closed doors” deliberating followed by what looks like a proclamation? If so, is this the best way for the halachic process to unfold? Do the rabbis plan to offer reasoned illumination as to why they have adopted these halachic reforms?
There will be those who will say that the rabbis don’t owe anybody any explanations. There will be those who will ask why the rabbis should even bother to relate to those who do not choose to live their lives in accordance with traditional precepts.
Here, though, is the problem with this attitude: Halacha is the living structure of the Jewish people. It is a critical repository of vast wisdom and proven practice. It is important that its teachings be better known, understood and respected. Thoughtfully applied Halacha should reach further into addressing the challenges of our shared national existence.
There is, however, little chance that the rabbis will win new adherents to following halachic practices through sudden announcements of revised halachic directions that offer little reasoned argumentation as to their worthiness. Those who follow a particular rabbi will, understandably, comply with that rabbi’s rulings unwaveringly. But can it really be that the rabbis have no interest in winning the hearts and minds of a broader constituency?
We live in an Internet generation. Though some choose not to be on-line themselves, the on-line environment sets the tone for vastly transformed 21st-century understandings of the nature of knowledge and communications. We expect leaders to communicate directly. We expect them to explain, to teach, to clarify and to justify. Leadership by pronouncement, however righteous it might be, however representative of divine dictates it might be, will not suffice. One can shrug and say that the rabbis are exempt from all that. But the consequence of such a myopic view will be that great halachic teachings will hardly penetrate further, will not be seriously engaged and will struggle to gain traction in today’s loud and crowded marketplace of ideas.
Ever since we became a “stiff-necked” people, most Jews have not been particularly accomplished at saluting to authority. Today, most respond best to righteousness that is accompanied by transparency, intelligibility, humility and real humanity. If we are to expand the boundaries of those who take halachic rulings seriously, then the halachic process should reflect nothing less.
The writer served as the Community Scholar for the Pittsburgh Jewish community for 16 years before moving to Jerusalem in 2009. He is the author of Abortion in Judaism (Cambridge).