Earthquake in Jewish Fertility Law

The recent news out of the Assuta hospital in Israel is nuclear armageddon for anyone dealing with issues of fertility – from a legal, personal, or halachic perspective. A mother, discovered during a genetic test that she was carrying a baby that was not her biological baby. It is a blessing to know that she now gave birth to that child, but, like in Solomon’s trial, the fate of this child remains uncertain. To make things worse, the episode revealed a chain of other inadequacies in the hospital’s IVF center, leaving hundreds of patients in fear for the quality of their own fertility treatments. 

While courts, genetic counselors, ethicists, and social workers might have spent many hours deciding the fate of this child and these families in the future, one thing is clear now: the rabbinic statements and rulings given in the wake of this case will shake generations to come. 

In a first and quick response to the news out of Assuta, Machon Puah, a center for fertility and Jewish law, had originally – while the child was in the womb – taken the position that the child belongs to its biological parents. Once the child was born, Machon Puah released a statement saying that the child should be given to the birthing mother and that efforts to find the biological mother should be halted.  

Yet most surprising of all was the position of Israel’s chief rabbi, Rabbi David Lau. In an elaborate letter, Rabbi Lau wrote that “we must see the birthing mother as the biological mother” and that, therefore the mother who gave birth to the baby in discussion “is the mother of the daughter.” For the sake of future marriage and to ascertain who the father is and to avoid future problems of incest, Rabbi Lau urged for the need to determine who the egg and sperm for this embryo had come from. 

This ruling effectively means that any woman who had a baby through surrogacy or, more specifically, a gestational carrier would not be considered to be the mother of the child, even though she is the biological mother of the child. Rabbi Lau’s ruling also goes against decades of Halachic precedent and the most widely accepted Halachic rulings on the topic. 

Due to the complex nature of surrogacy and the unprecedented medical innovation it requires, the standard Halachic policy on this matter is to assume there is a fifty percent chance each way and that it might be the birthing mother, while it might be the biological mother. Despite the opinions of Chief Rabbi Ovadia Yosef, Chief Rabbi Shlomo Amar, and Rabbi Shlomo Zalman Aurbach that the biological mother (the owner of the egg) is the mother, rabbinic courts and rulers recognized the complexity of this question and took both sides of this argument very seriously, giving both sides full consideration. This has been the policy of Rabbi Shlomo Zalman Aurbach and Rabbi Zalman Nechemya Goldberg (who nonetheless was inclined to believe the birthing mother should be considered the real mother) and the golden Halachic policy in Batei Din (rabbinic courts) around the world. 

As Rabbi Shlomo Brody wrote in 2020:

“A series of decisors, including rabbis Shaul Yisraeli, Nachum Rabinovitch and former Sephardi chief Rabbi Mordechai Eliyahu, asserted that the identity of the gestational mother determines the child’s status. …In contrast, Rabbi Avigdor Nebenzahl, former Ashkenazi chief Rabbi Shlomo Goren and current Jerusalem Chief Rabbi Shlomo Amar, among others, asserted that Jewish identity is determined by the ovum donor…

When he served as Israel’s Sephardi chief rabbi, Amar insisted that pro forma conversions were not necessary for children of Jewish ovum donors, while bona fide conversions were entirely required for children of a Jewish gestational mother….many decisors, including rabbis Shlomo Zalman Auerbach and Zalman Nehemiah Goldberg, maintained that there is no clear answer to this question and that it is possible that both the gestational and genetic mothers play a role in determining Jewish identity. As such, they require the baby to undergo a conversion process in all cases in which only one of the participating mothers is Jewish.”

While siding with the birthing mother in the case of the Assuta controversy is the convenient way that might make things easy now, this decision will come to haunt Halachic rules and rabbis in the future. It will mean that any Jewish woman who has trouble carrying a baby to term who has a child with the help of a gestational carrier who is not Jewish (the most common reality) can be certain that the child born is not Jewish. 

Considering the vast differences between Sephardic and Ashkenazi Halacha on this issue, I was also surprised Chief Rabbi Lau weighed in on this issue as Ashkenazi Chief Rabbi. If any of the relevant parties to this discussion (the gestational carrier, owner of the egg, owner of the sperm) turn out to be Sephardic, the issue might be beyond Rabbi Lau’s jurisdiction. 

As someone familiar with the Halachic process, I am deeply curious to know what sources and rulings Chief Rabbi Lau relied on when publishing his letter on a matter of such great consequences and hope that in the weeks and months ahead, he clarifies his position. 

About the Author
The writer is an eleventh-generation rabbi, teacher, and author. He has written Sacred Days on the Jewish Holidays, Poupko on the Parsha, and hundreds of articles published in five languages. He is the president of EITAN--The American Israeli Jewish Network
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