By Rabbi Yisrael Rosen
Dean, Zomet Institute
"From the other nations... shall you buy slaves and maidservants. And you shall also buy them from among the children of those who reside with you." [Vayikra 25:45].
The rescue of many Israelis from the tragedy in Nepal helped to shine the spotlight on the subject of surrogate motherhood. About twenty babies born from surrogates were flown to Israel in an accelerated process (including granting Israeli citizenship to the newborn arrivals). A similar number of women from Nepal who were carrying "Yisraelite seed" knocked on the gates of the Israeli authorities, and several of them were brought here in a humanitarian gesture, while their unborn babies were granted Israeli citizenship.
My column this week will first of all serve as an information service to my readers, which will lead me in the end to share my outlook with you. According to official statistics of the Population and Immigration Authority, in 2013, 169 babies were "imported" into Israel who were born from surrogate mothers abroad. There were 128 in 2012, 93 in 2011, and only 6 in 2008. Until today, about 500 children of surrogate mothers from abroad have been brought into Israel. And here are statistics for Israel itself: In 2013, 58 babies were born from local surrogates (and only 41 in 2012).
The surrogacy process that is most talked about is the "full" one. That is, there are three people who have a share in the child: the father, the woman who donates her egg, and the one who rents out her womb. The last one provides "pregnancy services" for the sperm of the man (usually the Israeli man, who signs the contract for the process) and for the egg of a different woman which was bought or somehow acquired by the man. It goes without saying that this service is in return for pay, whether it is called by some euphemistic name or not (such as expenses, compensation for a loss of work time, and so on). In such cases of "full" surrogacy, the donator of the egg can also be the wife (or life partner) of the man, if for some reason she cannot become pregnant or doesn't want to (say, because of a career or because of physical limitations). In this case, they want to hire a womb together. A quick search in the internet teaches me that the cost of such a process in Nepal can be as high as NIS 250,000.
On the other hand, if the woman who is making her womb available also provides the egg, the surrogacy is called "partial." In this case, a man makes an agreement with a woman that she will bear a child from his sperm, after which he will receive the child and she will be disconnected from the child to which she gave birth.Such a process is prohibited in Israel (and in most other countries in the world) because it causes great harm to the concept of motherhood, and for other reasons. There have been cases where courts (including in Israel) have been called upon to decide who should get the child if the surrogate mother refuses to give it up and does not want to abide by the original contract.
Ethical and Social Dilemmas
It is obvious to anybody who thinks about the matter that the concept of surrogacy raises a host of ethical and social dilemmas, even before we think of any questions of halacha. Those who oppose the idea bring up such concepts as slavery (both men and women), exploitation, and commerce in babies, together with the health dangers and the mental anguish that can result from the surrogate mother being disconnected from her child. From the social point of view, the subject is linked to theshattering and total breakdown of family values (except for a couple who are looking for a solution for a woman who is incapable of becoming pregnant). On the other hand, those who favor the idea point to the concept of adoption, which is considered as an altruistic act of kindness, and they see the process of surrogate motherhood as a way of orchestrating and coordinating the process of adoption.
In many countries around the world, all the many variations of surrogate motherhood are illegal, and those who want children by this process search for weaker countries where there are no legal prohibitions (or where the restrictions can be overcome by various means).Israel is one of the most liberal countries in the world in this matter (could it be otherwise?), and we allow local surrogacy subject to strict control – the main condition being that onlya man and woman who are marriedcan participate (even if the egg was "donated" by another woman), and the surrogate mother must be unmarried. If the wife is Jewish then the surrogate must be Jewish too, although the woman who donates the egg does not have to be Jewish. In the latter case, there will be serious halachic questions about whether the child is Jewish or not, based on the identity of the father and the woman who provides the womb, or if it is not Jewish, following the status of the egg. In the various issues of the annual halachic summary Techumin, about ten different articles have been published on this matter. (Here is an exercise for the reader: find the articles on the Zomet website (www.zomet.org.il) using the built-in search engine.)
The tumult in Israel with respect to this issue is connected to the demands of single-sex couples and individual men and women, who want to have the right to "purchase" children in this way and raise them. In the previous Knesset, the Minister of Health from Yesh Atid managed (about a month before she was fired) to bring a proposed law to the first reading, in order to amend the surrogacy law to her liking – with the enthusiastic support of the "Abomination Community." In spite of the veto rights of the Bayit Yehudi Party with respect to religion and the state, the party did not object because of coalition considerations, and because of a serious error of halachic quotes that implied that "the situation was not so terrible." And perhaps the worst thing was the victorious declaration of the enlightened Minister: "A family today is not made up of a man and a woman and children. It can consist of a single woman and children, a single man with children, two women with children, or two men with children." I wonder why she forgot some more possibilities, such as a man with two or three women or vice versa (heaven forbid).
We end with some halachic considerations. Such a process within Yisrael, with a Jewish surrogate mother, raises serious questions about the true identity of the "mother" of the child, in terms of illicit sex and incest in marriage. And if the egg was bought from a non-Jewish woman, we become involved in complex questions of whether the baby is Jewish or not. With a surrogate from abroad it is clear that the child is not Jewish, and its subsequent conversion is impossible, especially if it will grow up in a single-sex family.