Amid the pandemic and our exhaustingly fast new cycle, many have missed what is very big news: the state of New York has legalized gestational surrogacy. While New York was one of only two states in which gestational surrogacy was against the law, this is great news—especially for the Jewish community. New York’s Jewish population is the largest in the United States, many of whom struggle with infertility. The new law is also excellent news for the orthodox community, whose members might have been more reluctant in the past to pursue surrogacy and the travel it entailed. New York clinics beginning to administer gestational surrogacy procedures will make more options more accessible to more members of our community struggling with infertility.
While New Yorkers struggling with infertility could have previously traveled for treatments, the added step and leaving their comfort zones with all the logistics involved has likely caused many not to pursue gestational surrogacy as an option. Opening up New York with its vastness and resources will significantly impact gestational surrogacy and the way it is pursued in the orthodox community. Opening up New York clinics to more surrogacy options will allow those being treated by the world’s greatest experts in the field a direct line to the option of surrogacy and create much greater potential for gestational carriers, something especially relevant to the orthodox community.
While these halachot and ethics are of the most complex ones and everyone should consult their rabbi about their particular situation, there is a wide practical halachic consensus that a child born to parents using a gestational carrier is assumed to be—for cautions’ sake—the child of both mothers. The reason for this double approach is the strong arguments there are favoring the biological mother as the real mother, as well as those favoring the carrying mother as the real mother. Out of deference to both opinion’s each of which has strong and legitimate arguments, rabbis take both sides of the argument and, with regard to questions of Jewish law, assume both to be mothers of the child.
This creates a severe obstacle for orthodox couples seeking to have a child with the help of a gestational carrier; As a child’s Judaism is determined by who their mother is, if the gestational carrier is not Jewish, the child will have to undergo a giyur le’chumra—a conversation in case the child is not Jewish. Parents who would like their child to be Jewish from birth might be reluctant to take the path of surrogacy lest their child not be fully Jewish. Parents who would like to make sure their child is Jewish from birth would need to find a Jewish gestational carrier. Alternatively, if a mother is conceiving with an egg from an egg donor, that egg would have to come from a Jewish woman.
In the past, some wanted to avoid a scenario in which a child born to a gestational carrier grows up to unknowingly marry someone related to them through their surrogate mother by requiring that gestational carriers and egg donors not be Jewish, increased awareness and genetic testing coupled with an assurance that the child will know this is something they need to look out for, have led to a growing consensus that it is halachically far more preferable to make sure egg donors and gestational carriers are indeed Jewish.
While finding a Jewish egg donor is difficult, finding a Jewish gestational carrier can be impossible. Finding a gestational carrier is difficult for non-Jewish couples looking at a pool of 4 billion women; searching for a gestational carrier among the 7 million Jewish women in this world can be all the more difficult. Making this even more difficult is the disparity between who is considered too Jewish by Halacha and those who consider themselves Jewish that might not be Jewish, according to Halacha. Add to that the medical advisability and need for a gestational carrier have had a child already so that we know she can carry a baby to term coupled with the halachic need (according to many those not all) for the carrier to not be married, and your options become even narrower.
These challenges make it all the more difficult for orthodox couples struggling with infertility to pursue the path of surrogacy. Several news stories from Israel have highlighted how much more common surrogacy has become in Israel’s orthodox and Haredi communities. It is not uncommon to see stories of compassionate gestational carriers, matching of couples with similar religious affiliation, and an open discussion of surrogacy in the religious community in Israel. Most famously, Or-Na Ben Avraham, an orthodox woman from Esh Kodesh, wrote a book about her personal mission to help other women carry their baby to term and why she chose to become a gestational carrier. This has not been the situation in the United States.
Due to all of the aforementioned halachic and practical difficulties, gestational surrogacy is still a very uncommon option among orthodox couples. This creates several serious problems: first, it keeps people guessing about surrogacy and Jewish law. People learn about what their options might be through hush-hush conversations that often involve misinformation. Secondly, it prevents couples who want to pursue the path of surrogacy out of fear of “stepping out of line” or just doing something that is not done in the community.
The change in New York’s gestational surrogacy law has the potential to change some of this. Broadening those who can be part of the surrogacy process to a state with more than 30 million residents and more than 1 million Jews has the potential of impacting many in the orthodox and Hasidic communities. But this alone is not enough, nor should this change be limited to New York State. Rabbis, community leaders, physicians, and communal organizations need to make sure our community is well informed about the halachic and practical aspects of gestational surrogacy. This can have the double effect of giving hope to couples struggling with the pain and despair of infertility and empowering women who wish to be either compassionate carriers or paid gestational carriers to go forward with doing so.
May we all be blessed with the blessing the Kohen Gadol would recite on Yom Kippur, in the Holy of Holies: “May the House of Israel, not be dependent upon one another nor upon any other people. May it be a year that no woman suffers miscarriage”. Amen.