Jewishness of egg-donation children cast into doubt

The rabbis of the rabbinical court rejected the position that the Jewish status of a baby is determined by the birth mother.

Illustrative image of a newborn baby (photo credit: INGIMAGE)
Illustrative image of a newborn baby
(photo credit: INGIMAGE)
A state rabbinical court has refused to register as Jewish a baby conceived through the use of an egg donation by an anonymous donor, despite the fact that the woman who donated the egg and the woman who carried the baby were both registered as Jewish in the Interior Ministry.
Critics of the decision say the decision will cast doubt on the Jewishness of all children born through egg-donations, and indeed demonstrates that the rabbinical establishment has suspects the Jewishness of the entire Jewish population of the country.
In the unprecedented decision issued at the end of October but which has just come to light, the rabbinical judges of the Beersheba rabbinical court argued that the standards of the Population Authority in the Interior Ministry were not sufficient to ensure that the mother who donated the egg is indeed Jewish.
The court therefore insisted that the egg donor, whose identity is known only to the Health Ministry, undergo a Jewish status clarification review in a rabbinical court before it register the child as Jewish.
Critics of the decision pointed out that senior arbiters of Jewish law have ruled that a surrogate baby is Jewish if the mother who carries and delivers the baby is Jewish and that the status of the egg donor is not relevant.
This is indeed the policy of the Interior Ministry, which registers a baby as Jewish if the birth mother was Jewish.
Critics also argued that the Interior Ministry’s records are accurate, and that in the kind of situation under discussion “normative” Jewish law would determine the baby to be Jewish in accordance with the principle of majority, in that the overwhelming majority of citizens registered as Jewish in the Interior Ministry are indeed Jewish.
The rabbis of the rabbinical court rejected the position that the Jewish status of a baby is determined by the birth mother, and also argued that officials in the Population Registry of the Interior Ministry have less exacting standards when registering a person as Jewish than is required by Jewish law.
They therefore argued that the records of the Population Registry could not be trusted for the purposes of determining if the egg donor was Jewish or not.
Someone is determined to be Jewish by the Population Registry if their mother is registered as Jewish in the registry.
The Population Registry registers immigrants as Jewish upon presentation of documentation such as a marriage certificate of their parents, or similar documents, which are usually passed to it by the Jewish Agency.
Immigrants whose mothers are not Jewish and are therefore themselves not Jewish according to Jewish law would be registered as either “without religion” or in accordance with the father’s religion, but could not be registered as Jewish.
There are more than 400,000 such citizens in Israel, the vast majority of whom are from the former Soviet Union or their descendants.
Non-Orthodox converts from the Diaspora and from Israel can also be registered as Jewish in the Population Registry, and the rabbinical judges on the Beersheba court pointed out this specific possibility as one of their chief concerns.
Rabbi Seth Farber of the ITIM religious services advisory organization argued however that the number of such converts, from Israel or those from abroad who have immigrated to Israel, was minuscule and not statistically relevant in terms of Jewish law.
The Attorney General’s Office insisted that the Population Registry records are reliable however, and that the rabbinical courts do not have the authority to re-evaluate the Jewish status of the egg donor.
The Justice Ministry which also submitted a legal position on the case noted that Jewish law has a principle of “majority” if something not permitted is mixed up in a majority of things which are permitted, the non-permitted thing is considered permitted.
The Justice Ministry argued therefore that since the overwhelming majority of those registered in the Population Registry are Jewish, the court should accept the egg donor’s Jewish status and register the baby as Jewish.
The rabbinical court decided not to deal with this argument, saying again merely that the Population Registry’s standards were not sufficient and that therefore the majority principle could not be used.
“There is no doubt that the many deficiencies in the establishment of Jewishness by the Population Registry requires that it be obligatory to clarify [Jewish status] and to rely on the majority,” the rabbis wrote.
Farber denounced the decision however, saying that the rabbis had rejected both the widely held position in Jewish law that the birth mother determines Jewish status, and the Talmudic principle of majority.
“This shows a basic distortion of Jewish law and reality,” said Farber.
“Rather than adopt a normative halachic [Jewish legal] position which would guarantee the rights and status of families who have gone through so much to bring children into the world, this decision violates the most basic principles of respect and demonstrates the religious extremism that now permeates the rabbinical courts.
“For a long time we have been fighting against the rabbinical courts for casting Jewish converts back to their non-Jewish roots; now they’re saying that fully fledged Jews are not Jewish.”