Can Jews be Surrogates?

A quick update on where things stand since my last post

Yes, I definitely got ahead of myself. It turns out a “natural cycle” still includes twelve weeks of intramuscular progesterone injections, daily, following the embryo transfer. The doctor believes it can be normal for the Lupron I’m taking to need a little longer to take effect so for now the plan is to give me a little more time on it, push things back by a week, and assess as we go.

Hours after I put in that first call to my doctor, I started thinking about rabbis I could contact for guidance. I wanted to speak with someone who would be both well-versed in the Jewish legal issues having to do with surrogacy and who would be able to balance what I imagined could include many competing issues along the way. I reached out to someone I’ve known for almost a decade, an Orthodox rabbi who I respect as being extremely knowledgeable about our tradition and also extraordinarily sensitive to the human needs of today.

I wanted to have a handle on how surrogacy was viewed according to Jewish law and what, if any, issues I might want to consider moving forward. To start, I wondered whether a child born to a surrogate mother would be considered a mamzer – that traditionally undesirable (to say the least) bastard-like category forbidding marriage to most anyone other than another mamzer. I knew there was something in Jewish law concerning a child born to two parents who were each married to other people. Would this child be classified in the same way, I wondered?

From his response, it seemed there were two issues at play:

  1. Who would be considered the mother according to Jewish law?
  2. Might this child someday accidentally marry a sibling?

In that order:

As Jewish identity is passed down through the mother according to Jewish law, the mother’s identity matters a great deal. But who is considered the mother? Is she the one who physically births the child or is she the one who provides the genetic material? (Incidentally, Jewish law does not really consider who actually raises and cares for the child.) The rabbi let me know that there is a long and unresolved dispute as to the answer of this question.

Because of this difference of opinion, what do we do? In good Jewish fashion, we take both requirements on ourselves!

Following the first opinion that the legal mother is the one who delivers the child, any child that I, a Jewish woman, would give birth to would be considered Jewish according to Jewish law. This means that if I chose to be a surrogate for a parent or parents who were not Jewish, I would be giving birth to a Jewish child who would be raised as something other than Jewish. That sort of thing is, shall we say, frowned upon according to Jewish law. Because of that alone, he advised that if I were to do this, I should make sure to carry for someone Jewish so the child would know that she or he is Jewish.

If we follow the second opinion that the legal mother is the one who provides the genetic material, then he advised that I should make sure the egg itself comes from a Jewish woman. I was never interested in providing my own egg, so the egg for this baby would need to come either from the Jewish mother I’d be carrying for, or it could come from an egg donor, provided she was also Jewish.

By following both opinions, the Jewish status of the child should be clear. Of course, conversion could also be an option as needed, though it does not come without its own set of complexities.

Interestingly, the rabbi didn’t have a concern about the mamzer issue because, as he reminded me, a mamzer is the product of a forbidden sexual act, and, well, embryo transfers in sterile clinics are not quite what I’d define as sexy…

So at the end of the day, following this logic, I’d be looking for a Jewish person or couple, possibly enlisting the help of Jewish egg donor.

Needle in a haystack, anyone?

We’re not done though. What would happen to this child in the future? If we go back to the first opinion above that I’d be the legal mother, then that girl or boy would be my child in the eyes of Jewish law. And I have three of my own children who could grow up, and, however unlikely, meet the product of my surrogacy, fall in love, and… we’ve got a problem.

The only way to get around this would be to make sure that I maintained some relationship with this family after the fact in order to know the identity of the child.

And on the flip side, though it’s not in my control, the rabbi suggested that if the family who raised the child planned to use an egg donor, they would need to know the donor’s identity in order to prevent their child from marrying the donor’s biological children, whether from other donated eggs, or ones who she gave birth to herself. Of course, many (most?) egg donors donate anonymously, which is why some agencies will track donors’ identities privately in order to help in this respect down the line if needed.

Is your head spinning yet?

Prior to the conversation with this rabbi, I don’t think I gave much consideration to who I might carry for. I just knew I wanted to help. But afterwards, the idea of carrying for someone Jewish felt like it made sense, especially considering all of the people I’ve seen with fertility issues that we’ve been able to help support at Mayyim Hayyim. Taking it one step further, I decided that should this all work out in the future, I’d want to make sure people in the Jewish community knew it was an option. With all of our collective focus on making Jewish babies (sometimes bordering on obsessive), shouldn’t we really help each other in this way?


One thought on “Can Jews be Surrogates?

  1. Pingback: Why Jewish? | there's no i in uterus

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