Barbara Pfeffer Billauer
integrating law, policy, religion and science

Joshua, Son of None: When the Rabbinate becomes Guardian of the Genes

At the end of October, a BeerSheva religious court ruled that a child born of “donated” eggs –was not Jewish – even though the “birth” mother was. The conflict whether the gestational mother or biological (genetic) mother has superior rights to determining a child’s status is not new. But two elements of this decision are decidedly troubling.

One is that the decision first came to light only recently. Even more disconcerting, is that the ova (egg) donor, too, was Jewish, at least according to the Interior Ministry’s Population Authority. But, now comes the Rabbinic Court to tell us, perhaps not “Jewish” enough. They call on the Health Ministry to divulge the identity of the genetic mother. Their next imperative: to vet her through the traditional trials to which the marriage tribunal subject candidates for marriage.

On its face, perhaps the efforts of the Rabbinate are noble. After all, the Official Rabbinate prides itself on being guardians of our “race” by weeding out “undesirable” converts. Nevertheless, this noble motive is impugned, I suggest, by abject ignorance of fertility practices in the US or some other motive (which I only guess), which will subject a chunk of the Oleh population to a nightmarish scenario – and not just the Russian ones.

Whose Child Is it Anyway?

solomon judgment

Before discussing the hell this ruling will unleash, a short history of Rabbinic Law on the subject is in order: First, it must be noted that this Rabbinic ruling defies the Rabbinic majority, which hold that the gestational mother is the “real mother.” This majority view is derived in part from a question regarding Kashrut posed to the Brisker Rav, Chaim Soleviechik (1853-1918), who ruled that we determine the status of an untyped young’un based on its (gestational) mother (and, it should logically follow – vice-versa). That ruling is not only responsible for influencing the current Rabbinic determination on religious status, but also used to validate Rabbis who approve of Human Reproductive cloning.

It appears, however, that technological advances may have confounded some elements of the Rabbinate. To determine the status of a a mule, for example, just look at his mother. This clearly tells you that the mule is — a horse. (At least, halachically, anyway). Not long ago, one eminent senior Rabbinic authority appears to have figured out the problems with this logic. Now, in questions regarding whether the religion of a genetic mother or surrogate (gestational) mother governs the child’s Jewish status, this eminent Paskan holds that the genetic mother’s status is determinative– an abrupt about-face from his prior rulings. (Perhaps he also learned that that technologically, we are not far from engineering mechano-wombs capable of gestating the fetus for the full nine months — in which case the child’s mother would be an incubator – at least halachically, anyway).

The issue here is not whether the majority opinion rejected by the BeerSheva rabbinic court is correct either halachically or biologically, but whether it is wise to retroactively change a quintessential standard that defines Jewishness, upon which thousands of people have relied. Concern for the societal impact, compassion for K’lal Yisroel, even cognizance of the importance of precedent –is notably lacking.

Who Decides?

In the present case, the Rabbinate claims that the standard on which the Ministry of Interior’s Population Authority determines the egg donor’s religion is unacceptable. They assert that the ovum-donor may not have been converted in a Halachically-approved manner (or her mother may not have been). She is Jewish according to the Right of Return, but not for the purpose of marriage within the state. That, of course, is not the issue. The question here is – are her gametes “Jewish” for the sake of donation? And the ruling disproportionately affects Olim, and not just Russian ones.

The practice of egg-donation first began in the early 1980s, although wide-spread use of donated gametes (eggs and sperm) came to the fore in the 1990s. Along with others, Israeli IVF facilities profit handsomely from the burgeoning industry. In fact, a Google search reveals that some Israeli reproductive facilities proudly broadcast their import of genetic material from the US, and hence they may be using donor eggs which have not been vetted for halachic “Kashrut” where the gamete-mother converted.


Whose child is it?

What that means for the Guardians of the Faith is that scores of Olim from the US, the UK, and Canada, and perhaps other countries (Russia has about 150 fertility clinics; the US has about 500) were born of donor eggs. Some of these donors may not be Jewish at all, let alone of a “poorer” conversion-quality. Many children of the older cohort don’t know of their dubious lineage, as the practice at the time was not to divulge this information. But cases are now unfolding where these children, now grown to adulthood, are using DNA data-bases and discovering their true parentage. Learning your true parentage in your thirties or forties is difficult enough – but could be disastrous for the halachically-inclined. In Israel, scores of Olim, accepted as “pure-bred” Jewish (because their birth mothers were), now must confront the fact not only is their genetic identity a lie — even their religious identity may be suspect.

Some children conceived abroad, however, did know their actual parents aren’t their biological ones. But for children conceived in the US, the chance of learning their biological identity, should they — or their children’s prospective spouses — be interested– is basically non-existent.

Better Never Than Late

In Israel, the identity of sperm and egg donors are kept by the Ministry of Health (which is now under the governorship of the Haredi parties). In this case, should the Rabbinate prevail, the mother’s identity can be ascertained. One might ask why this consideration wasn’t brought up by the respective ministries before the egg was implanted? Why only now when there is a live child whose fate depends on the answer? The simple answer is that the Ministry of Health only cares about preventing incest.

By contrast, in the US, exhuming the genetic identify of the gamete donor is unavailable, as until the last year or so, donor anonymity was de rigeuer. (Today, a prospective parent can “buy” donor gametes whose identities are discoverable once the resulting child reaches 18- at an additional cost). Without purchasing “premium” gametes, however, one is foreclosed from learning their genetic identity. One recent case in Oregon found a sperm bank facility threatening children seeking to learn their parentage via open DNA data bases – as their mother signed an agreement accepting anonymity of the sperm donor. In the few American cases where court intervention was sought to determine genetic identity (where the children were born with a congenital illness), it was not always successful.

The Rabbinate, however, – focusing only on Israeli practice (where they can easily obtain the egg donor’s identity) – now have subjected a host of children to the nightmare of learning –late in life –that they may not be Halachically Jewish – with no way, whatsoever, to find out if they are. Thus, while the BeerSheva Rabbis might ascertain the religious status of this child– and thereby protect the lineage of the Jewish People, a host of other adults and teens will be subjected to the purgatory of not knowing – and not ever being able to know — if they can be considered halachically Jewish as they now are.

The Children Be Damned

The problem gets worse: Given all the other problems the country has defending its democratic status, we now have a situation where the Ministries are contradicting each other: Even on something as seminal to the Jewish Nation as to what constitutes Jewishness, we can’t agree on which Ministry determines the status of its newborns: The Population Ministry holds the gestational mother is Jewish, and hence so is the child; the Health Ministry (which registers donor identity), notes the egg donor is Jewish, but doesn’t opine on the status of the egg, and the Rabbinate claims the genetic mother (and hence the child) isn’t Jewish – until proven otherwise.

In addition to the sudden impact this decision casts on those conceived via IVF, the Rabbinic Courts give no thought to others who might similarly feel disenfranchised. Two years ago, the Netanya College of Law sponsored a conference on the then proposed Sperm Bank Law, which re-iterated the Health Ministry’s authority to record the identity of gamete donors – while making it illegal for that identity to be learned by anyone else. The seminar was geared to doctors and lawyers, but a small contingent of stakeholders, children born via IVF, attended to protest the strict anonymity rule, which most pointedly applies to them. They bitterly recounted their efforts– thwarted- to know their biological parentage, if for no other reason than to learn the likelihood of hereditary disease. They were dismissed, ridiculed, are ignored by the doctors and IVF facility managers present. And now the power of the Rabbinate allows them the very information denied to the offspring? Something is very wrong with this picture.

The Sins of the Rabbis Will Vest in their Constituents

Perhaps someone in charge will have the foresight and wisdom to understand the far-reaching consequences this case raises- conflicts between countries’ labelling requirements, conflicts between the Rabbinate and other Ministries, and the conflict between those knowing their genetic identity, and those who don’t. Even if this ruling is not allowed to stand (or a “simple” prophylactic conversion – Giur K’chumrah – is offered as a remedy in all doubtful cases) – the door has been opened: One can reasonably presume, knowing the propensity among our flock to seek stringencies, that some prospective parents will seek to assure the egg donors they use are “super Kosher”, while the remainder are satisfied with the designations of the Population Authority.

Mehadrin eggs, anyone?







Barbara Pfeffer Billauer is an experienced attorney and science-educator with advanced degrees in law (PhD, Haifa University) and public health. She is the editor of Prof. Amnon Carmi’s Casebook on Bioethics for Judges, sits on a UNESCO panel on Bioethics and Law, and holds Professorial faculty appointments at the University of Porto’s International Program on Bioethics and the Institute of World Politics in Washington DC. She has written and lectured extensively on the issues of public health, reproduction and the law.

About the Author
Grew up on Long Island, attended Cornell University (BS Hons.)and Hofstra ULaw School, MA in Occupational Health from NYU, Ph.D,. in Law and Science from Uof Haifa. Practiced trial law in New York City, Taught at NYU, University of Md Law School, Stony Brook School of Medicine. Currently Research Professor of Scientific Statecraft, Institute of World Politics, Washington, DC, Professor, International Program in Bioethics, University of Porto, Portugal. Editor Prof. Amnon Carmi's Casebook on Bioethics for Judges, Member of Advisory Board, UNESCO Committee on Bioethics. Currently residing in Netanya, Israel.