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Switched Before Birth?

11/11/2021 01:53:15 AM


One of my favorite “extracurriculars” is participating in the deliberations of the Committee on Jewish Law and Standards of the Conservative movement. This week, the CJLS met to re-assess the status of children born through gestational surrogacy. With advances in technology, a child could easily be born with as many as five people who might be considered to have a share of parenthood. One provides the sperm, another provides the egg, and then there is the  woman who carries the fetus to term. In addition, all or none of these might be one of the “intended” parent or parents who will raise the child! For purposes of determining parentage and Jewish status, which parents are most important? Though the Torah never explicitly discussed this issue, our Torah portion, Vayetze, includes some important texts that provide insight into this debate.

The general principle in Jewish law is that Jewish status follows the mother, while certain other matters (Kohen and Levi status) follow the paternal line. This explains why a child born to a Jewish father and a non-Jewish mother is not considered Jewish unless the parents bring it to Mikvah. However, surrogacy presents a conundrum- is it the gestational mother, or the woman who provides the egg, who is rightly considered the mother for the purpose of considering Jewish status?

Surrogacy was known in the Torah, but the insemination was natural, rather than artificial. Both Rachel and Leah give their handmaidens to Jacob to bear  children who were intended to be attributed back to the intended mother, not the birth mother, though in the rest of Genesis, they are not seen as such (Joseph is recognized as Rachel’s firstborn, not Bilhah’s children). There is, however, a fascinating Midrash which says that Joseph was meant to be born to Leah, and sister Dina was meant to be born to Rachel, but God magically switched them from womb to womb, so that Dina was born to Leah and Joseph to Rachel. This legend would seem to indicate that the gestational carrier is determinative.

In the Talmud, it is noted that a woman who converts to Judaism while pregnant converts the fetus along with her, which would also seem to indicate that the gestational mother is determinative. In  1997, Rabbi Aaron Mackler wrote a teshuvah that the gestational mother determines the status of the child. It is the womb, not the egg, that makes a Jew. A child born to a non-Jewish gestational carrier would not be considered Jewish, even if the Jewish intended mother donated the egg. This is the most common view in the Orthodox world as well (though a few do rule the other way, that the egg is determinative,and some require conversion either way!)

The issue has come up again because, as gestational surrogacy becomes increasingly common, there are Jewish parents who make use of surrogates who are offended that the child, despite bearing their DNA, is not automatically considered to have their status, and they have lobbied the CJLS to change the rules. I’m opposed for a number of reasons, and I will share a few. First of all, the Talmudic sources (which are too complex to wade into this setting)  must be taken extremely out of context to attempt to justify a change. Second- this would raise questions about the thousands of children born to Jewish mothers using a non-Jewish donor egg. Third, the idea of describing an egg cell or even a zygote as “Jewish” goes against Jewish views of when life begins, and, more significantly, makes Judaism a matter of nature, not nurture. The story of Jacob multiplying his flocks is not easy to interpret, but it is a reminder that even some parts of our destiny are in our genes, what we do with it is determined by our environment!  If one's Judaism were determined by one’s DNA, there would be no such thing as conversion!

However, though I reject the proposed answer, I must be sensitive to the question. Jews who have overcome so many hurdles to become parents may indeed find it traumatizing to be told that the child that they are raising, that carries their DNA, is not truly their own. In this week’s portion, Rachel cries out to Jacob that she wants to bear a child, and his insensitive response has later consequences.

I’m among several rabbis who have offered an alternative proposal, which is that there needs to be a new class of ritual crafted to recognize that there are many people who might not be considered Jewish within the narrowest definitions, have Jewish connections beyond those delimited by Jewish law, or fall into gray areas of the law itself. While the forms of conversion (Mikvah, and participation of a Beit Din) would still be followed, so that any doubt might be lifted, the rituals, liturgy and narrative would recognize the connection of the intended parents and reflect the fact that the person involved is completing their Jewish status, rather than coming into it from a blank slate. 

This meeting was just a first (vigorous) conversation, and it may be months, and several rounds of discussion and revision before there is a conclusion.  In the meanwhile, I do appreciate the impact that this conversation has on many families, including some in our own congregation. I appreciate that our ancient texts have wisdom to offer about the most modern of dilemmas.

Fri, December 1 2023 18 Kislev 5784