[Avodah] Surrogate Mother

[Micha Berger]

On Sun, Nov 30, 2008 at 09:11:24PM -0500, david guttmann wrote:
: I would like to get an idea of the current Halachik thinking about having
: children via a surrogate mother? What are the issues? 

R' Eli Clark (v2n73) wrote:
> By coincidence, I happened to have co-authored an article on the
> subject (available by e-mail upon request). The primary halakhic
> question is who is considered the halakhic mother -- the birth mother
> (i.e., the surrogate) or the genetic mother. Virtually all posekim
> agree that the birth mother is the halakhic mother. Hence, in the
> case of a Jewish birth mother, the resulting child would be Jewish and
> -- if the child did not know the identity of its halakhic mother --
> could unintentionally marry a close relative, commit incest and produce
> children who are mamzerim. Hence, le-khathillah, R. S. Z. Auerbach, R.
> Elyashiv and R. E. Waldenberg prohibit surrogacy arrangements. R.
> Bleich points out as well that the production of a child in a surrogacy
> arrangement may not fulfill the mitzvah of piryah ve-rivyah and therefore
> questions the religious motives of a couple wishing to employ surrogacy.
...
> Nevertheless, it is clear that many couples prefer to try to produce
> a genetically related child than adopt. It is also clear that the
> mamzerut issue can be addressed by either using a non-Jewish woman as
> surrogate or ensuring that the Jewish surrogate's identity is known to
> the child. In the article, I also address some related issues, such
> as the enforceability of surrogate contracts, issues of gilluy `arayot
> and hotza'at zera le-vatalah and moral considerations. (The maternity
> issue was the subject of several pieces in Tehumin and Tradition in the
> mid-1980's. R. Bleich recently addressed some of the other issues
> in the Winter 1998 Tradition. My article is slated to appear in a
> forthcoming issue of the RJJ Journal.)

(His email address is at the original post
<http://www.aishdas.org/avodah/vol02/v02n073.shtml#09>.)

Later in that digest, R' Yitzchok Zirkind replied. WRT R' Bleich's
opinion:
> There is discussion WRT a Mamzeir see Minchas Chinuch first Mitzvoh,
> but in a case where no Aveiroh was done why would the father not fulfill
> Pru Urvu, however for a BN that his whole obligation is Lo Sohu Bro'oh
> there should be Lich'oroh no question that he fulfills his obligation.

And about avoiding mamzeirus by using a non-Jewish surrogate:
> Why would this not be in the same category of Boeil Aramis which the
> Rambam (Hil. Issurei Bioh 21) says that it causes a possible Jewish
> child to be non Jewish (the fact that the child will be converted doesn't
> change the Halacha there).

(N.B.: RYZ since became part of the Beis Din of Crown Heights and is one
of the 2 Executive Supervisors of Kashrus of the CH Badatz.)

In v2n75, R"Dr Josh Backon wrote:
> See TCHUMIN Vol. 5, p. 248, the article by Rav Nechemiah Goldberg on
> surrogate motherhood. Also the discussion on the topic in the NISHMAT
> AVRAHAM Even Ha'Ezer p. 15-17. Some opinions: if the donor and surrogate
> are both Jewish, the surrogate is the *mother*. If either one is not
> Jewish, the donor of the egg determines whether the child is Jewish
> or not.

Tir'u baTov!
-Micha

BCc: REC, RYZ

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