Legal issues

Amar's decision permitting married women to be surrogates was also controversial in the rabbinic world.

shlomo amar 88 (photo credit: )
shlomo amar 88
(photo credit: )
When Sephardi Chief Rabbi Shlomo Amar ruled several months ago that a poverty-stricken and childless couple could use a married woman as a surrogate mother, he stepped into an ideological minefield. Amar unwittingly sided with liberal feminists in a decade-old argument over who could serve as a surrogate. As Prof. Kelly Weisberg of Hastings College of Law has pointed out in her book The Birth of Surrogacy in Israel, liberal feminists, unlike radical feminists who equated surrogacy with prostitution and an annihilation of the personality, supported surrogacy in principle. They argued that surrogacy empowers women, and validates them as autonomous individuals. Nevertheless, liberal feminists demanded that surrogacy not be restricted to single women. "We should be cautious of the emergence of a socioeconomic class of women who are not married but who will be used as a body for carrying embryos for those women who are married and are from a higher socioeconomic class," argued a position paper from Na'amat, an Israel-based social action and women's advocacy organization. Liberal feminists also argued that a single woman, lacking any support from a partner, would have a more difficult time doing surrogacy. In response, the religious parties argued that a child born to a married Jewish surrogate would be considered a mamzer (illegitimate and thus prohibited from marrying another Jew) by some rabbis. Therefore, they maintained, married women should not be allowed to serve as surrogates. In 1996, in a surprising move, secular Knesset members joined forces with the religious parties against the feminists and passed the Embryo-Carrying Agreement Law in record time. In fact, the Knesset ended up ignoring most of the demands of the liberal feminists. Besides the restriction of surrogacy to single women (except in the unlikely event that a single woman cannot be found), the Knesset also ruled that the surrogate must be the same religion as the genetic parents. Normally, secular Knesset members fight any attempt by religious parties at religious coercion via legislation. Why did the Embryo-Carrying Agreement Law pass without objections? According to Dr. Elly Teman, an anthropologist at Hebrew University and an expert on surrogacy, the sudden cooperation between religious and secular legislators was not a coincidence. "Secular Knesset members hid behind religion as a convenient excuse for protecting very nationalistic, Zionist values," says Teman. "Zionists had an interest in preserving the traditional idea of the nuclear family and at the same time maintaining a nation of Jewish Israeli citizens." According to Teman, secular legislators used legislation to make sure that a clear demarcation was made between the "real" family and the surrogate. The former consists of a Jewish mother and a Jewish father - not homosexual or lesbian couples - who will bring up a Jewish baby. The surrogate, in contrast, provides a service to the real family. "In both Orthodox Judaism and Zionist ideology the family is the cornerstone of the nation," adds Teman. "So, religious parties and Zionists found it easy to agree on the issue of surrogacy." Amar's halachic decision permitting a married woman to serve as a surrogate was also controversial in the rabbinic world. Former Sephardi chief rabbi Mordechai Eliahu attacked Amar's decision, saying that the child resulting from such an arrangement would be a mamzer. In response, Amar argued that while the offspring of a married woman who had illicit sexual relations is considered a mamzer, a baby born to a surrogate mother is not the product of any kind of sexual intercourse. Rather, an embryo that is created from the sperm of the designated father and the egg of the mother (or from an egg donor) is implanted in the surrogate's womb. Therefore, the baby born to the surrogate cannot be a mamzer. However, Eliahu holds that any baby born to a married woman from the sperm of a Jewish man who is not her husband - even if there was no sexual intercourse - is considered a mamzer. THE DEBATE between Eliahu and Amar illustrates the problems of surrogacy from a halachic standpoint. In fact, many leading haredi rabbis such as Shmuel Halevi Vosner of Bnei Brak and Yosef Shalom Elyashiv, the most respected living halachic authority, prohibit surrogacy of any kind. Even Rabbi Shlomo Zalman Orbach, who was considered the greatest halachic authority of the previous generation, ruled that surrogacy was not permitted a priori. These rabbis and others want to avoid dealing with the complicated legal issues and unclear halachic status of the child born to a surrogate. Is the woman who donated the egg the legal mother according to halacha, or is it the surrogate mother? Which of the two women is the child obligated to respect in accordance with the fifth of the Ten Commandments? From which mother is the child entitled to inherit? Are sexual relations allowed between the child and either of the two mothers' children, sisters or brothers, or do those unions constitute incest? These rabbis would prefer to simply sidestep the whole issue by preventing surrogacy altogether. In fact, if not for one courageous and respected halachic authority, surrogacy would probably be shunned by the vast majority of the religious and haredi community. Rabbi Zalman Nechemia Goldberg, a member of the Chief Rabbinate's Supreme Rabbinic Court and son-in-law of Orbach, ruled not only that surrogacy was permitted but that the child born from surrogacy fulfilled the husband's obligation "to be fruitful and multiply." Goldberg provided the Ashkenazi haredi community with the imprimatur needed to take such a drastic step. But even Goldberg never ruled that an infertile woman was obligated to use a surrogate.