Responsa in a Moment: Volume 7, Issue No. 3, December 2012
What does Jewish law have to say about conceiving children through surrogacy?
As summarized by Rabbi Elie Spitz in 1997 (pp. 130-134), there are two types of surrogate motherhood. In the case of an ovum surrogate, which is the most common, both her ovum and her womb are used. This is because the intended mother lacks healthy ovaries or the ability to carry a baby to term. The surrogate is impregnated by the husband by artificial insemination and she agrees to give the baby to him and his wife. The first paid surrogacy arrangement occurred in 1980, and by 1997 as many as 4,000 children had been born in the U.S. with 1,000 new arrangements every year.
A gestational surrogate essentially serves as an incubator or as a “tummy mummy”; she is impregnated through IVF with the fertilized ovum of the intended parents. This is because the intended mother has a malformed or absent uterus, a medical condition that would make pregnancy dangerous for her, or a medical condition that would endanger the fetus. The first birth of a baby from a gestational surrogate occurred in 1986.
The average ovum surrogacy costs $42,000, with the surrogate mother receiving $12,000 in payment. In gestational surrogacy, the average cost for the IVF is an additional $22,000. The typical surrogate mother in 1997 was 28 years old, married with 2 children, employed full-time and had 13 years of education
There have been a number of famous lawsuits regarding failed surrogacy arrangements in which the surrogate mother reneged on the agreement, such as the case of Baby M, but out of 4,000 children born to surrogates, only 12 surrogacy related cases had been filed in U.S. courts and in every case, except one, custody was awarded to the intended parents.
The Israeli law from 1996 only allows gestational surrogacy. It states that implanting a fertilized ovum may only be done if:
From the point of view of halakhah, the main questions are: is this permissible before the fact? And, after the fact, who is the mother – the woman who donates the ovum or the woman who gives birth to the baby or both?
II) Is surrogacy permitted before the fact?
Back in 1975, surrogacy was opposed by Rabbi Dr. Immanuel Jakobovits in the second edition of his classic work Jewish Medical Ethics (p. 265):
To use another person as an “incubator” and then take from her the child she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity.
In 1986, Rabbi Dr. David Feldman (p. 73) quoted England’s Warnock Commission of 1984 which recommended against surrogate motherhood arrangements because the potential of abuse is so great. InAmerica, the Michigan Court of Appeals in 1981 viewed the surrogate arrangement as a form of forbidden “baby bartering”.
In 1997, two Conservative rabbis wrote two lengthy responsa on this topic and both were approved by the Committee on Jewish Law and Standards of the Rabbinical Assembly. Unlike many of the Orthodox responsa on this subject which concentrate primarily on the halakhic issue of “who is the mother?” (Irshai, pp. 264-266 and see below), these two responsa summarized below give a good idea of the two sides of the argument from both a halakhic and an ethical point of view.
A) Surrogacy is permitted
Rabbi Elie Spitz, rabbi of Congregation B’nai Israel in Tustin, California, argued in favor of both types of surrogacy and maintained that a man fulfills the mitzvah of peru urevu, to be fruitful and multiply, in having a child with a surrogate.
Rabbi Spitz begins by quoting some of the classic sources regarding the mitzvah to be fruitful and multiply (Genesis 1:28;Mishnah Yevamot 6:6; Bereishit Rabbah 34:4 which was codified inShulhan Arukh Even Haezer 1:1; Megillah 27a; Isaiah 45:18) (For further discussion of this mitzvah, see David M. Feldman, Birth Control in Jewish Law, third edition, Jerusalem, 1995, Chapter 3; Jeremy Cohen, Be Fertile and Increase, Fill the Earth and Master It, Ithaca, New York, 1989; Ronit Irshai listed below, pp. 25-52).
He proceeds to show that three of our matriarchs suffered from infertility: Sarah in Genesis 16; Rivkah in Genesis 25:21; and Rachel in Genesis 30:1-2.
A biblical precedent for surrogacy is that if the shifhah or handmaid, similar to today’s ovum surrogate, who provided both the ovum and the womb:
In Genesis 16: 2, Sarai (Sarah) says to Abraham: “Look, the Lord has kept me from bearing. Consort with my handmaid, Hagar; perhaps I shall be built up [=have a child] through her”. Abraham agrees and Hagar gives birth to Yishmael.
In his comment on that passage, Rabbi Moses ben Nahman, the Ramban (1194- ca. 1270), explains Abraham’s motivation as follows:
“And Abraham hearkened to the voice of Sarah”… Even now [Abraham] did not intend that he be fulfilled through Hagar by having progeny through her. Rather, his sole intention was to do the desire of Sarah so that she be fulfilled through [Hagar], that she derive happiness of spirit from the children of her handmaiden. (translated by Rabbi Bleich, 1998, p. 261)
Later on, in Genesis 30:3-8, Rachel says to Jacob:
Here is my handmaid Bilhah. Consort with her, that she may bear on my knees and I too will be built up through her. So she gave him her handmaid Bilhah as concubine, and Jacob cohabited with her. Bilhah conceived and bore Jacob a son.
Rachel named the son Dan. Bilhah then bore Jacob a second son and Rachel named him Naftali.
A few verses later, we read in Genesis 30:9-13:
When Leah saw that she had stopped bearing, she took her handmaid Zilpah and gave her to Jacob as concubine. And Zilpah, Leah’s handmaid, bore Jacob a son.
Leah named him Gad. Zilpah then bore Jacob a second son and Leah named him Asher.
Despite the differences between the biblical handmaid and the modern surrogate, there are three shared values:
Rabbi Spitz proceeds to lay out some of the ethical and legal objections which have been made vis-à-vis surrogacy and to refute them:
Rabbi Spitz concludes by saying that those in favor of surrogacy should encourage their legislators to enact supportive legislation and then they can follow dina demalkhuta dina, the law of the land is the law.
Surrogacy should be used as a last resort to overcome infertility because of its great financial and emotional costs. Nonetheless when a couple is aware of the risks, surrogacy is permitted by halakhah.
He concludes by saying that a husband who provides the sperm has fulfilled the mitzvah of peru urevu which is incumbent only upon the man.
B) Surrogacy cannot be recommended by halakhah and would be ill advised in most cases.
Rabbi Prof. Aaron Mackler, an Associate Professor of Theology at Dusquene University in Pittsburgh, authored a responsum which is, for the most part, opposed to surrogacy.
These conditions would be difficult to implement in commercial surrogacy which would severely limit the the cases where this could occur.
If a Jewish woman is the surrogate, then the child is Jewish. This means that either the woman is giving a Jewish child to be raised as a non-Jew or that a Jewish woman can only be a surrogate for Jewish couples. Either option would be highly problematic; Rabbi Mackler does not see how halakhah can authorize Jewish women to serve as surrogates.
III) Who is the mother?
If a Jewish couple goes through with a surrogacy arrangement — with or without rabbinic permission — who is the mother?
This dilemma was hinted at by Dr. Seuss in his classic children’s book Horton Hatches the Egg first published in 1940. In that book, a lazy bird named Mayzie convinces Horton the elephant to sit on her egg while she flies away for a “break”, which turns out to be a permanent vacation in Palm Beach. Horton sits on the egg for many months despite being laughed at, captured by hunters, and being placed in a traveling circus. Just before the egg hatches, Mayzie happens upon the circus and claims the egg as her own. The egg then hatches and out flies an elephant-bird, which is a cross between Horton and Mayzie. In other words, Dr. Seuss would probably maintain that a child born by a surrogate has two mothers – the woman who donates the ovum and the woman who carries and gives birth to the baby.
In any case, the rabbis who have dealt with this issue have expressed three different opinions:
A) The ovum donor is the mother.
This is the opinion of Rabbi Shlomo Goren and others (see Steinberg, note 58 and Irshai, pp. 256-259). Rabbi Goren relies in part on the well-known passage in Sanhedrin 91b about Antoninus and Rebbe, which says that life begins at conception. Rabbi Goren’s view is surprising since, according to that source, all abortions are prohibited. But classic halakhah follows the Mishnah in Oholot (7:6) and other sources that life begins at birth.
B) The surrogate mother is the mother.
This is the opinion of most rabbis who have discussed our topic (see Rabbis Mackler, pp. 176-181; Steinberg, cols. 134-136; Bleich, 1995, pp. 237-272; Irshai, pp. 259-263).
C) The child has two mothers – both the ovum donor and the surrogate mother.
This was the opinion of Prof. Ze’ev Low (Emek Halakhah II, 5749, pp. 165-169) as summarized by Rabbi Steinberg (col. 136 and note 65) and Dr. Irshai (pp. 263-264) and as concurred with by Rabbi Bleich (Bleich 1995, pp. 251-258, 272). However, since Prof Low learns this idea from the laws of the barley used for the omer(Menahot 69b), other rabbis reject the analogy between a plant and a human being (see Steinberg, note 65).
III) Conclusions and Practical Halakhah
After examining all sides of this issue, I agree with the majority of rabbis who have opposed surrogacy for the following reasons:
If a couple cannot conceive, it would be much better for them to adopt a child. Rather than create a whole host of ethical dilemmas, adopting a child is a great mitzvah, which provides a loving home for thousands of unwanted children who would otherwise live in an orphanage or on the street. Or, to use the Talmudic idiom: “Anyone who raises an orphan in his home, Scripture considers it as if he had given birth to that child” (Sanhedrin 19b and Megillah 13a; cf. Golinkin, note 8 for additional references about adoption).
17 Tevet 5773
Rabbi J. David Bleich, Contemporary Halakhic Problems, Vol. 2,New York, 1983, pp. 91-93
Idem, ibid., Vol. 4, New York, 1995, pp. 237-272
Idem, Bioethical Dilemmas, Hoboken, New Jersey, 1998, pp. 239-268
Andrea Dworkin, Right-Wing Women: The Politics of Domesticated Females,New York, 1983, pp. 181-183
Rabbi David M. Feldman, Health and Medicine in the Jewish Tradition,New York, 1986, pp. 72-74
Idem, Sh’ma 17, No. 334 (15 May 1987), pp. 108-109
Idem, “The Case of Baby M”, in: Levi Meier, ed., Jewish Values in Health and Medicine,Lanham,Maryland, 1991, pp. 163-169
Rabbi Marc Gellman, “The Ethics of Surrogate Motherhood”, Sh’ma17, No. 334 (15 May 1987), pp. 105-107
Rabbi Michael Gold, And Hannah Wept,Philadelphia, 1988, pp. 120-127
Rabbi Zalman Nechemiah Goldberg, Tehumin 5 (5744), pp. 248-259
Rabbi Daniel Gordis, “Give Me Progeny…”: Jewish Ethics and the Economics of Surrogate Motherhood,University ofJudaism Papers 8/1,Los Angeles, 1988, 27 pp.
Mordechai Halprin and Yeruham Priner, eds., The Second International Conference on Medicine, Ethics and Jewish Law,Jerusalem, 1996, pp. 119-270 (Hebrew)
Hok Heskemim Linsiat Ubarim, 1996 (Israel’s surrogacy law)
Ronit Irshai, Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature,Waltham,Mass., 2012, pp. 216-224, 249, 254-268
Rabbi Walter Jacob, American Reform Responsa, New York, 1983, No. 159, pp. 505-507
Rabbi Immanuel Jakobovits, Jewish Medical Ethics,New York, 1975, pp. 264-265
Rabbi David Lincoln, in Rabbi Aaron Mackler, ed., Life and Death Responsibilities in Jewish Biomedical Ethics, New York, 2000, pp. 188-192 = Responsa 1980-1990,New York, 2005, pp. 638-641 = www.rabbinicalassembly.org
Rabbi Aaron Mackler, ibid., pp. 162-187 (two responsa). The first responsum also appeared in Responsa 1991-2000,New York, 2002, pp. 551-557 and both responsa can be found at www.rabbinicalassembly.org
Fred Rosner, Modern Medicine and Jewish Ethics, second edition,Hoboken, 1991, pp. 113-116
CarmelShalev, The Case for Surrogacy,New Haven, 1989
Rabbi Seymour Siegel, “The Ethics of Baby M’s Custody”, Sh’ma17, No. 334 (15 May 1987), pp. 108-109
Rabbi Elie Spitz, in Mackler, ibid., pp. 129-161 = Responsa 1991-2000, ibid., pp. 529-550 = www.rabbinicalassembly.org
Rabbi Avraham Steinberg, Entziklopedia Hilkhatit Refuit, Vol. 2, Jerusalem, 1991, cols. 129-138, s.v. hafrayah hutz gufit
Rabbi Moshe Tendler, “Infertility Management: Cure or Ill”, Sh’ma17, No. 334 (15 May 1987), pp. 109-110
Noam Zohar, “Artificial Insemination and Surrogate Motherhood: A Halakhic Perspective”, Svara 2/1 (1991), pp. 13-19
Idem, Alternatives in Jewish Bioethics,Albany, 1997, pp. 78-84
All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.
David Golinkin is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.