Fertility and Facts: Dangers of Fictional Halacha

Last week, an Israeli judge delivered a ruling on the heartwrenching modern-day Solomon trial of the baby born in Asuta hospital in an IVF mixup. After two years of “baby Sophia” being raised by the mother who carried her to term, gave birth to her, and raised her through extraordinary trials and tribulations, the judge ordered to give the 2-year-old to her biological parents. While at the time of the birth, a plethora of rabbis and organizations rushed to make unfounded halachic statements, the silence now that baby Sophia’s biological parents have been found and the judge given a long and detailed explanation is deafening. Albeit under the most difficult and painful of circumstances, we once again see the painful price of rabbis making unfounded Halachic statements, cutting the Halachic process short.

The general halachic consensus among practicing rabbis today is to agree that determining halachic motherhood in the case of a gestational carrier (sometimes referred to as a surrogate mother) is too difficult of a question with too many opinions to either side for us to definitively determine. This is why we regard both mothers as mother le’chumra, and take on a “cover all basis” approach to make sure we address halachic concerns relating to both the biological mothers and the mother who carried the baby to term. 

When “baby Sophia” was born in 2022, “Ashkenazi Chief Rabbi David Lau has said that the woman who was mistakenly implanted with a fetus that was not genetically hers and gave birth to a girl yesterday is the mother under Jewish law.” What was even more outrageous and was an outright breach of Jewish law was when Rabbi Menachem Borenstein of PUAH, an organization that purports to lead halachic positions on matters of fertility and halacha, had said that efforts should not be made to even find the biological mother saying that: “”Since there is a woman who is undoubtedly carrying the child in her womb and she also wishes to give birth to and raise the child, she should be allowed to raise the child, without investigating for now who the genetic parents are.”

At the time, this author has written that the decision contradicted Jewish law and practice and set a very dangerous precedent of ignoring the biological mother. Furthermore, those statements violated the only matter of halachic consensus in the case–the relationship to the father. While one can argue about who we should consider to be the child’s mother–the mother who carried her to term and gave birth to her, or her biological mother–there is only one option of who her father is. There is no question that the child’s biological father is her only father. Ignoring the fact that a decision will deprive someone of their very own child and not taking the father’s indisputable fatherhood of the child is a sin to the child, civil law, and Jewish law. 

Reasoning on the decision in favor of baby Sophia’s biological parents, the judge recognized the undeniable bond both the biological and birthing mother have to the child and the need to facilitate the child’s relationship with both the birthing and biological mother. The judge sensibly reasons that it will be easier for the biological to facilitate a relationship and together time between the child and the mother who carried and birthed her than vice versa. The judge writes: ” The story and the  narrative that “due to a mistake you were brought up in the first years of your life with so and so, with whom you will now meet from time to time,” is easier to carry than the other story if she grows up by the parents holding her who will forever feel intimidated by the genetic parents as the connection of blood remains forever in a way that will make it difficult to sustain both relationships.”

The judge notes that telling the child: “you are living with us due to a mistake, and you meet your genetic parents from time to time,” is extraordinarily difficult to bear. To support this belief, the judge cites the efforts the birthing parents have made to deny genetic testing and their disinterest in bringing the genetic parents into the life of the child. 

The judge’s position is far more consistent with Halacha, taking into account the undeniable role both mothers should have in the life of the child, the importance of the blood connection with the genetic parents, as well as the unquestionable rights the father of the child has to raise her. 

The Talmud (Sanhedrin 33a), speaking of a Dayan (judge in a Jewish court) distinguishes between two kinds of mistakes. “Rav Asi says: In the case of a judge who erred in a matter that appears in the Mishna, the decision is revoked, but in the case of a judge who erred in his deliberation, the decision is not revoked.” The mistake made by Rabbis Lau and Bornstein in the case of baby Sophia does not seem like a mistake in judgment and is more akin to a “judge who erred in a matter of Mishna”.

Whether it is the misrepresentation that there is a consensus that all fertility treatments must take place under some kind of rabbinic supervision, despite that not being the case, or in the case of baby Sophia, the field of fertility halacha has been often flooded with misinformation and disinformation that has a huge impact on people’s lives, often this impact is in fact on the only thing people value more than their own lives–their children and potential children. Rabbis and couples should do more due diligence before relying upon pop-halacha and word of mouth. Justice should not only be available through prolonged and painful court proceedings–as it was in the case of baby Sophia– it should come through more informed, well-reasoned, transparent, provable, and candid halachic discussions.