From the Desk - Surrogate Motherhood
Shalom Friends! Passover was beautiful here at Congregation Beth Ora. Tragically, our people suffered another tragedy on the last day of Yom Tov with the shooting in San Diego and the murder of Lori Gilbert-Kaye. As I wrote earlier in the week, (click here) we are overwhelmed by our deep mourning for this special person. We continue to pray for the physical healing of Rabbi Yisroel Goldstein, Noya Dahan and Almog Peretz and that Lori's family and all those present and affected by this horrific attack will find comfort in the love of the Jewish People and that of good people throughout the world. Indeed, this terrible crime took place just a few days before Yom HaShoah – today’s memorial for those who perished in the Holocaust. I invite you to come to synagogue this Shabbat morning, where I will be reflecting on this terrible attack in San Diego and the meaning it has for our lives. While Judaism teaches us many different attitudes and perspectives in the face of grief, special emphasis should be given to the Jewish commitment to promoting kindness and honour in the face of such inhumanity and hatred. I am proud that Congregation Beth Ora is leading the Montreal Jewish community in promoting, teaching about and living these values through The Rise Together Project at the end of this month. To learn more about this project, please see the recent article in the Canadian Jewish News and The Rise Together Project promotional video:
Please be a part of The Rise Together Project at Beth Ora by registering for our special Shabbat dinner on Friday, May 24th. Please also put the other Beth Ora Rise Together events in your calendar. You can learn more about these events here and here. These events are for all ages and provide us with the opportunity to show just how much love and goodness we are capable of as a community. We owe it to our children, grandchildren and great grandchildren to set a public example to them, showing them just what a privilege it is to be a blessing in the lives of others. I also want to remind you that Thursday, May 9th is Yom Ha'atzmaut. Just as we mourn tragedy, so too we must celebrate miracles. Three years after we emerged from the valley of the shadow of death, the Jewish People came home. I appeal to men and women in our community to make every effort to attend our morning services (6:30 AM or 8:00 AM) on Thursday, May 9th when we will be reciting Hallel to give thanks for this modern miracle. There will be a bagel breakfast after the second minyan at 9:15 AM. Please also join the Montreal Jewish community at 11:00 AM at the corner of St Catherine and Atwater (Cabot Square) for the annual Israel rally. Buses will be leaving from Beth Ora at 10:00 AM sharp. Wishing you all Shabbat Shalom, may we only know good times and may we merit together to bring more goodness and light to our world. Rabbi Anthony and Carly Knopf Dovid, Rachelli, Yehuda and Avrami
What's the Deal with... Surrogate Motherhood? A few months ago, I discussed the question of why whether one (who has not converted) is Jewish is determined by whether the mother is Jewish. Artelinda Zaganjori asked what happens in a case of surrogate motherhood. Who is considered the mother according to Jewish law? What's the deal? This is one of the most complicated questions I've been asked. I base my answer on an article by Rabbi Professor Michael Broyde. There are actually four different types of cases of surrogate motherhood. The first occurs when a woman provides the ovum and her uterus to carry the fetus to term. The father provides his sperm. The result is a child conceived through artificial insemination. The father and his wife agree to raise the child as their own and the mother agrees to waive her custody rights in favour of the sperm provider and his wife. The "surrogate" mother is the genetic mother as well as the person in whom ovulation, conception, pregnancy and birth occur. According to Jewish law, there is no doubt that in this type of case, where the mother is both the genetic and biological mother, that she is also the legal mother. This situation is no different from an artificial insemination case; it is mislabelled a "surrogate" case because of a later agreement to transfer custody, which Jewish law maintains does not affect the law's choice of who is the mother. The other types of surrogate motherhood are as follows:
An ovary is donated to a woman whose ovaries are not functioning. In this case, the child conceived from such a donation is genetically related to the donor but is the product of ovulation, conception, pregnancy and birth from the surrogate mother.
A single egg is removed from the genetic mother and implanted in the surrogate mother. Conception then occurs in the surrogate mother or, more likely, in a test tube. Although ovulation occurs in the genetic mother, the surrogate mother again carries the child to term and gives birth to it.
The genetic mother's ovum is naturally fertilized. The fetus is then transferred into the surrogate mother's uterus. The surrogate mother carries the child to term.
These cases are far more difficult than the first one. The question that needs to be determined is: What factors does Jewish law consider in deciding who is the mother? There is an immense literature relevant to this topic. Here, we will have to suffice with citing only a few sources and arguments. Some quote a passage in the Talmud which quotes an opinion that, if a pregnant gentile converts, when her child is born it does not need a conversion. While there is a significant dispute among the commentators as to the reasons why such a child is born Jewish, most commentators adopt the intuitive explanation that the child is Jewish because it was born of a Jewish mother. This understanding is that birth is the key time in establishing motherhood and conception is not legally significant. According to this position, the birth mother is one's true parent. However, the great commentator Ramban understands this Talmudic passage differently. According to this understanding, birth is less significant than conception or even genetic relationships. In other words, either conception or genetics determines motherhood. According to Rabbi Chaim Ozer Grodzinski, Ramban seems to be of the opinion that conception is the critical determining factor. Among modern day commentators, there is considerable disagreement over whether or not the law is in accordance with Ramban or his detractors. Rabbi Broyde argues that the law is, in fact, codified contrary to the position of Ramban on the issue of establishing maternity. If this is so, it appears that Jewish law focuses on birth rather than genetic relationship. Rabbi Broyde outlines three rules to determine the mother in surrogate or host motherhood cases:
If conception occurs in a woman's body, removal of the fetus after implantation (and, according to most authorities, after 40 days) does not change the identity of the mother according to Jewish law. The mother would be fixed at the time of removal from the womb and would be the woman in whom conception occurred.
Children conceived in a test tube and implanted in a host carrier are the legal children of the woman who gave birth to them since parturition and birth occurred in that woman and conception is not legally significant since it occurred in no woman's body.
Children conceived in a woman who had an ovarian transplant are the legal children of the women who bore them.