Who is the Mother? A Halachic Question

I read yesterday about a 61 year old woman who gave birth to her own grandson. Her daughter is infertile, so she offered to be a surrogate. It was her daughter and son-in-law’s biological child in that it used their egg and sperm. However, it was her body that fed and nourished and nurtured the baby for 9 months. This is a tremendous example of a mother’s love.

I am curious, though, halachically – which woman in this case is actually considered the mother? The one that bore the child, or the one whose egg was implanted?

Learned folk – please weigh in!

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  1. Jess says:

    it’s an issue. specifically, i heard that it is an issue when it comes to Kibud Em (honoring your mother) there are some in the ortho world who wouldn’t consider surrogacy for that reason.

  2. Netanel says:

    It would seem that in Judaism, the parentage is attributed to the one who completes their respective role, so the surrogate would halachically be the mother.
    A father is called a father on conception, whereas a mother is only a mother on childbirth.

  3. shorty says:

    It’s complicated. It depends if the Rabbi thinks that the halachic mother is the “egg donor”, the gestational carrier or possibly a bit of both. This is a big issue when it comes to egg donation generally, because there are few Jewish donors, and many Jewish couples looking for one. Once upon a time, the Rabbis in Israel felt that the gestational carrier was the mother, so women happily found whichever donor they wanted, without worry of conversion and such. That has changed, the Rabbis have said that children from eggs from non Jewish donors need to convert. This is so troublesome for many couples, because now they have to explain to children, who they might not have ever told they were from a donor that a) they are from a donor and b) by the way you’re not really Jewish.

  4. It is an incredibly complex issue. However to the best of my knowledge where this comes up in the Sh”A(albeit in a primitive and vague way) and is followed by later poskim as the science developed, the vast majority of the poskim hold that it would be the Grandmother’s child, which runs into another problem of making a child in such circumstances a mamzer, being born from a “foridden union” of a man with his wife’s mother.

    Those are some of the problems with IVF and such.

    • shorty says:

      Would the mamzer issue apply if the grandmother was carrying the emrbyo of her daughter and son in law? (assuming daughter and son in law were properly married).

      • Shalom Rosenfeld says:

        Shorty, I could be mistaken, but I think those who feel IVF can generate mamzerut are concerned only about the egg and sperm, not the host, with regards to this question. Mekubal, do you have sources otherwise? Personally I follow Rav Moshe and Rav Shlomo Zalman, so it’s a moot point.

  5. Shalom Rosenfeld says:

    I spoke about this with halachic bioethicist Rabbi Yitzchak Breitowitz:

    * It would be simpler to say the mother follows the genetic material (egg mother), but the halachic sources lean towards saying it’s in fact the host/womb mother.
    * Womb-mother is generally accepted as the halachic mother by the majority of American poskim (with notable exception if you’re in Baltimore, as its Rabbis Heinemann and Hopfer follow egg mother). The late Rabbi Aaron Soloveichik even wrote: “halacha treats the egg as nothing more than some synthetic device, product of Japan”! Rabbi Kenneth Brander, Dean of the Yeshiva University’s Center for the Jewish Future, has stated emphatically that halacha follows the womb-mother.
    * As Shorty indicated, many Israeli poskim are currently re-evaluating their stances.
    * Mekubal is raising a different issue, that of “mamzerut.” If a child is produced by IVF or artificial insemination, but the egg donor is married to someone other than the sperm donor, do we call that child a product of adultery? Some, such as Rabbi Yoel Teitelbaum, the Satmar Rebbe, feel that it would be, especially considering kabbalistic issues. My understanding is that this view has some weight in Israeli circles. HOWEVER, both Rabbi Shlomo Zalman Auerbach of Jerusalem and Rabbi Moshe Feinstein of New York ruled that “mamzerut” is only generated by a prohibited sexual act, so there is no way that IVF or artificial insemination can create a mamzer.
    * Rabbi Breitowitz suggested one could differentiate between IVF (which occurs outside the woman’s body) and artificial insemination (which occurs inside) regarding the mamzerut issue; however no major posek has taken this stance.

  6. Mike S. says:

    As you have no doubt realized by now, this is an area of active debate among prominent rabbis, and a consensus has not yet been reached. For obvious reasons, there is no direct talmudic source for this area of law. The primary sources are primarily the halacha of a woman who converts while she is pregnant, and thus is considered differently when she completes the gestation than when she starts, even though she is the same individual and some midrashim about women who have become pregnant by material left floating in the public bathhouse. As you can imagine, it takes a lot of interpretation to apply these sources to modern medical practices.

    No one should rely on the web for answers about this, but, if this should come up in practice for you, consult local and recognized authorities.

    • Mike, the ‘primary’ sources on this are not (only) about women who convert. They are about the identity of animals for various purposes, and also the identity of grafted branches and trees (for orlah, etc.). And analogy is drawn from those cases and notions, to the idea of a transplanted egg or fetus.

  7. I spent a month last year at the medical ethics institute (Schlesinger) at Shaarei Tzedek in Yerushalayim. I spoke with Rav Dr. M. Halperin about this issue. It is true that up to a few years ago, we relied on the idea that the one who carries the baby to term (birth mother) is the halachic mother. It seemed that most halachic authorities agreed with this. A little while back opinions were published in Assia (the Israel journal of medicine and halacha) and elsewhere to the effect that the entire position was now reversed. Rav Dr. Halperin says that the inclination of ‘most’ (whoever and whatever that really means) halachic authorities is to now consider the ‘genetic mother’ the mother. This not only has important implications in the present tense; it now raises a question about the identity (including basic Jewishness) of previous babies. When I raised this issue, I got no useful answer.

  8. Mike S. says:

    I didn’t mean to suggest that those were the only sources, but the tshuvot I have read tend to rely more heavily on the ones involving people than on the plants and animals ones. But in any case we reasoning by analogy from sources that are discussing situations distant from some modern medical fertility practices. And we may be called upon to push things even further as medical technology advances.

    Be that as it may, this is certainly an area where the great posekim of our day have not yet reached a consensus, as your discussions with Rav Halperin show. Since one’s actions in these areas has implications for the Jewish identity of the resulting progeny for all generations, anyone facing these issue l’ma’aseh would be well advised to consult with leading posekim and not take p’sak from web postings.

  9. fille says:

    Wouldn’t it be halachically inadmissable to have the seed of your son-in-law in your body?

    I thought this was giluy arayot (incest)

  10. Mike S. says:

    Fille: In my youth this was a vociferous controversy between Rav Moshe Feinstein and the Satmar Rav. All agree that if it got there in the traditional fashion it is seriously impermissible. The argument was over whether the prohibition extended to cases where it was deposited by a physician using a syringe. In part whether it was the material or the action that was the fundamental source of the prohibition.

  11. fille says:

    I suppose that would go against the spirit of the law.

    Because in this case, a father could deposit his semen in his daughter via a syringe and it would be halachically admissible!!!???!!!

  12. Mike S. says:

    Fille: well, at the time they were arguing about a married woman getting AID
    (that is artificial insemination with donor sperm because her husband wasn’t
    fertile) rather than procedures involving relatives, and I may be wrong in assuming it might carry over. And while I am not sure of the halacha, it would seem plausible that if son-in-law’s seed had already fertilized daughter’s egg it might be a different story.

  13. Yoine Cohen says:

    The reason this question poses such difficulties for Poskim, is that in of the Talmud and Classical Halacha there no reference of a womans ‘egg’.
    Even though some try to force it on the term ‘Isha mazria techila’, it is obvious that that is not was meant.
    It is important to understand that this issue has quietly been a serious hotly debated issue behind closed doors between two Orthodox Charedi based Orgs. One is ‘A Time’ the other is ‘Bonei Olam’. Both Orgs raise huge amounts, in order to help infertile couples. But a dispute between Rabbinical advisors has created a terrible situation.
    S0me Rabbis are so upset with the methods of one of the 2 (and I will not name the Org) that this has the potential to cause shidduch problems in the future for those who succeeded in giving birth to a child, since there will always be a doubt what methods where used.
    This method of using an egg donation is one of the most hotly disputed. But it will never get (Charedi) media attention. Those who know, know.

  14. fille says:

    I thought sperm donation from someone who is not the husband was completely assur… except. perhaps, if they divorce and remarry…

  15. pirkei says:

    The best answer I’ve heard (in the Ashkenaz camp) is that because there is no clear precedent in halacha, that is, we do not have a tradition to answer this question, and it’s a machlokes haposkim in any event, we treat both women as potential mothers. The Sefardi camp, who rely on the revelation from the Zohar in cases where there is “no precedent”, generally pasken that the egg-donor is the mother (R. Auerbach, R. Chacham Ovadiah) because of mystical ideas about conception.

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