Q. Some years ago, an Australian court allowed a couple who arranged for a relative to bear their daughter, to adopt the child. Is there a Jewish view on surrogate motherhood?
A. In this particular case the wife’s sister was artificially inseminated with the sperm of her brother-in-law and in due course turned her baby over to her sister and her husband. This seems to be a case of AID (or maybe AIB – Artificial Insemination by Brother-in-Law), and the woman who bore the baby is both genetic and gestational mother.
More difficult issues arise when a woman carries to term the fertilised egg of another woman. The child has a bond with both the genetic and the gestational mother. Which woman has the legal right to raise the child?
For Judaism there is a question of the identity of the child: if one asks which woman created it, the answer is that, without both women there would be no child. If one “mother” is Jewish and the other is not, which is the mother, and is the child Jewish? There are also halachic issues that have to do with illegitimacy, adultery and the laws relating to the first-born.
So who is the mother? An ancient Midrash quoted by Targum Yonatan on Gen. 29:22, says that Rachel and Leah were each pregnant and somehow exchanged foetuses, and history ascribed each child’s identity to its birth mother. But from an isolated Midrash we cannot learn decisive halachah, and though the Talmud indicates that motherhood is established by parturition and birth (Yev. 97b and Rashi), we have to go to the modern writers for an examination of the specific question of surrogacy. Three positions are found in the halachic literature:
1. The genetic mother is the legal mother: from the moment of conception the zygote has already acquired identity and parentage. Rabbi Yekutiel Aryeh Kamelhar argues that in Judaism parentage is determined by genes. Israeli Chief Rabbi IM Lau states that most sources favour the woman who provides the ovum as being the legal mother.
2. The surrogate mother is the legal mother: proponents of this view develop a different aspect of Rabbi Kamelhar’s thesis to say that just as a transplanted organ becomes part of the recipient, the foetus implanted into the surrogate mother acquires her identity. Rabbi Mordechai Halperin says that motherhood is not determined by genetics; the foetus severs its legal relationship with the genetic mother at the moment it is implanted into the surrogate mother.
3. The child has two legal mothers, two maternal relationships at the same time. An analogy may be that any child has two parental relationships, maternal and paternal, at the same time. As a consequence of this view, the child of a surrogate mother would be forbidden by the laws of incest from marrying another child from either mother.
At this stage it appears that the stronger halachic argument is in favour of the surrogate mother. There is no definitive ruling as yet. As Rabbi Feitel Levin of Melbourne, a medical ethics authority, puts it, “The jury is still out on who the rightful mother is”.