(Vol. XCII, 1982, pp. 205-207)
QUESTION: What is the status of a child born to a surrogate mother who has been impregnated through artificial insemination with the sperm of a man married to another woman? The child will eventually be raised by the husband and his wife. (J.Z., New York City)
ANSWER: We must inquire about the Halacha and the use of surrogate mothers, as well as the status of the child. The Talmud and later Rabbinic literature seem to have dealt with a subject akin to the question of a surrogate mother when they discussed pregnancies which were not caused by intercourse. The Rabbis felt that a girl could conceive by taking a bath in water into which male semen has been discharged (Chag. 14b); in other words, without intercourse or penetration. This line of thought has been continued by some later commentators and respondists (Eibeschutz, Commentary to Yad, Hil. Ishut 15.6; Ettlinger, Aruch Laner to Yev. 12b). The medieval author of Hagahot Semak, Perez ben Elijah of Corbeil, felt that a woman should be careful and not lie upon linen on which a man had slept so that she might not become impregnated by his sperm (Joel Sirkes to Tur, Yoreh De-a 195).
Here we have instances of conception through an unknown outside source, and this was not considered to cause any halachic problem for the woman or the child, who was legitimate. Yet there is a striking difference between these situations and ours, as the child in question there was raised by its natural mother while ours will be raised by other parents. Furthermore, there is a commercial aspect in our situation, as the surrogate mother presumably has been paid for her efforts.
A Biblical parallel seems to exist in the tales of the Patriarchs (birkayim, Gen. 30:3, 50:23) as Hagar was given to Abraham by Sarah so that there would be a child. Similarly, Rachel gave Bilhah to Jacob. In both instances the primary wife reckoned the child as her own and was able to accept (as Rachel) or reject (as Sarah) it. The differences here, however, are as follows:
1. the child and biological mother were part of the same household and family; and
2. the biological mother continued to play a major role in the life of the child.
There are also some problems with an apparent Talmudic parallel, i.e., the situations of a concubine, whether of a temporary or permanent nature (see the responsum "Concubinage," #133 above). These women bore the children of a man who usually was already married to another woman as his primary wife, but the concubines raised the children themselves.
There is nothing then akin to our problem in the literature of the past. A vague example in Noam (vol. 14, pp. 28ff) actually deals with organ transplants, in this case ovaries. The midrash which dealt with the transfer of a fetus from Leah to Rachel and vise versa (Targum Jonathan to Gen. 30:12; Nida 31a; Ber. 60a) is also not relevant, as the parents seemed unaware of this.
We would, therefore, have to treat the use of a surrogate mother as a new medical way of relieving the childlessness of a couple and enabling them to fulfill the mitzvah of procreation. It should cause us no more problems than modern adoptions which occur frequently. There, too, the arrangement to adopt is often made far in advance of birth, with the complete consent of one or both biological parents. Here we have the additional psychological advantage of the couple knowing that part of the genetic background of the child which they will raise as their own. This may prove helpful to the adoptive parents and, at a later stage, to the child.
If we were to treat this child as the offspring of a concubine or the result of a temporary liaison between a man and an unmarried woman, there would be no doubt about its legitimacy. The issue of Biblical and Rabbinic Arayot does not arise.
We should look at the halachic view of artificial insemination with a mixture of sperm as is common practice. The majority of the traditional authorities consider such children legitimate (Nathanson, Sho-el Umeshiv, part 3, vol. 3, #132; Uziel, Mishpetei Uziel, Even Ha-ezer, #19; Walkin, Zekan Aharon, Even Ha-ezer 2, #97; Feinstein, Igerot Mosheh, Even Ha-ezer, #10). Waldenberg (Tsits Eliezer, vol. 9, no. 51.4) considered such children to be Mamzerim. Additional discussion of the different authorities may be found in vol. 1 of Noam (1958). S.B. Freehof also considered them legitimate ("Artificial Insemination," #157 above), but Guttmann was cautious (see #158 above).
We would agree that there is no question about the legitimacy of such children, as long as the surrogate mother is not married. However, we realize that problems still exist in civil law in various states.
It is more difficult when we consider a married surrogate mother. Different factors are involved. On the positive side, we have the mitzvah of procreation to fulfill. Certainly, that mitzvah ought to be encouraged in every way possible. It is for this reason that both adoption and artificial insemination have been encouraged by traditional Judaism and Reform Judaism. In a period when the number of Jewish children has declined rather rapidly, we should do everything possible to make children available to families who wish to raise them.
Problems are raised by the marital status of both couples in civil law and Halacha. Is this to be considered adulterous or not? Certainly, under normal circumstances sexual relations between a man and a married woman would be adulterous. The fact that the woman with whom the relationship is carried on has a husband who is willing to permit it makes no difference. In this instance however, insemination would be conducted artificially and no sexual penetration would occur. It would, therefore, not differ materially from circumstances under which artificial insemination with sperm from an unknown donor takes place. In that case, too, the donor may very well be married and certainly the woman recipient is married. This form of artificial insemination has been accepted by us (see #157-158 above), by Freehof, and with some reservations by Guttmann. At least two of three Orthodox authorities (Baumol, Emek Halacha, #68; Schwadron Maharsham, vol. 3, #268) have permitted this, too, however with reservations. We would therefore not consider the use of a married surrogate mother as adulterous, as the beginning of the process is akin to artificial insemination. We would therefore hesitantly permit the use of a married surrogate mother in order to enable a couple to have children and await further clarification of medical and civil legal issues.
Walter Jacob, Chairman