Whose Child, What Faith?

Rabbi Shabbtai Rappaport

K. and his wife H. were married in their thirties. For several years they tried to have a child, but without success. When H. became forty years old she was diagnosed positive for uterine cancer, and had to undergo hysterectomy. All H.'s hopes of bearing a child were thus frustrated. The couple were advised that eggs could be removed from H.'s ovaries to be fertilized in vitro by K.'s sperm. A resulting zygote (or several of them to insure pregnancy) could then be implanted in the uterus of a surrogate mother, who will then bear and give birth to the genetic child of K. and H., a child which will then be raised by them. In this way H. could fulfill her aspiration of motherhood.
They decided to act upon this suggestion, and during the next year H. had endured a series of painful surgical treatments during which eggs were removed from her ovaries. These eggs were duly fertilized with K.'s sperm, but before the surrogate mother was chosen a problem arose - whose son will the child considered to be, and will he be regarded as Jewish if the surrogate mother is not. Should the couple prefer a Jewish surrogate mother or a non-Jewish one.  

As far as fatherhood is concerned, it was established (Turei Zahav Yore Dea 195,7, Igrot Moshe Even Ha'Ezer vol. I res. 10) that the genetic father - the sperm donor - is always considered to be the legal father of the child, even though there was no sexual relationship between him and the mother, and whether he is married to the mother or not. It holds true as long as the mother is Jewish. In case of a non-Jewish mother and a Jewish father the child is considered to be fatherless, and has familial relationship with the mother alone (Yevamot 17,a). That is why artificial insemination - where semen from a donor is introduced into the uterus of a woman - from an unknown Jewish donor raises a potential problem of incest. The legal father, who, as stated before, is the sperm donor, may have other children, and because his identity is unknown, the child born from his sperm via artificial insemination may marry his sibling. Rabbinical authorities who permit artificial insemination in cases of infertile husband, usually prohibit the use of a Jewish donor. In our case, however, the father's identity is well known, the surrogate mother is the one who shall remain anonymous. It has to be determined whether she will have legal familial relationship with the child she will bear for K. and H.

The problem of determination of surrogate motherhood was raised only in the last few years and is still in debate, because until recently it was totally impossible for the genetic mother - the ovum donor - not to be the gestating mother.  Still an interesting precedence does exist that could illuminate this issue.

The talmud Yevamot 78,a-b discusses conversion to Judaism of a woman during pregnancy, and the status of her child. It states clearly that the fetus is considered to have undergone an independent conversion through the mother's act, and is not considered Jewish just because he was born to a Jewish mother. In order for a child to inherit Jewishness from his mother, he must have been conceived after his mother has been Jewish.  But if the mother converted after conception, during pregnancy, her child does not inherit the Jewish faith from her. Hence, Jewishness is regarded as being passed on by the genetic mother. The ovum from which the child was conceived has to belong to a Jewish woman.  A well known rule regarding the family status of converts to Judaism states (Yevamot 97,b) that a convert is like a newborn, which has no paternal relationship to his previous family. Hence, according to biblical law, a brother and a sister who converted are not prohibited by rules of incest to marry each other. Since we have established that a person that his mother converted while being pregnant with him is regarded as an independent convert, he should have no familial relationship with his mother, or his maternal siblings who were conceived and born after his mother has been converted. It is stated (ibid.), however, that this person is regarded as a legal brother to his maternal sibling that was conceived and born to his mother after her conversion.  

The only logical explanation to that idiosyncrasy, is that motherhood is not determined genetically but through gestation and birth. Hence the person that converted before being born, while his mother was pregnant with him, even though an independent convert, is still the legal son of the converted mother who bore him and gave birth to him after conversion. This familial relationship must have been determined at the very moment of birth, because the ruling quoted above that a pre-birth convert is considered to be related to his maternal sibling conceived and born to his mother after her conversion, has no pregnancy-age limit. It does not say that a pre-birth convert is related to his Jewish siblings only if his conversion took place up to end of the first of second trimester of his gestation. It is clear that even if the pregnant mother-and-son conversion took place on the last day before birth, that son will still be related to his mother, even though he is an independent convert. Hence, motherhood, unlike Jewishness, is not determined genetically at the time of conception, but rather at the moment of birth. A person conceived by a non-Jewish woman who later converted while being pregnant, though not a Jew by heritage but by conversion, is still considered to be that woman's son, because at the time that he was born she was already Jewish. So unlike a person who converted after birth who has no familial relationship with his mother, this person is Jewish by conversion and has a Jewish mother by birth.  It really does make sense that Jewish faith should be inherited by conception. In the view of halacha a fetus is a potential person, who becomes a full actual person after birth. The essence of our faith is the covenant between G-d and ourselves, which we accepted near Mount Sinai when receiving our tora, as binding us and our descendants to the end of days. Hence our faith has actual and potential meaning - actual for us, and potential for our descendants. The potential meaning is relevant to a potential person. At the time of conception the covenant and promise become binding, and thus a person is grown into the Jewish faith. A person who was not conceived by a Jewish mother cannot, therefore, be considered Jewish by heritage, only by conversion.   Maternal relationship has no potential meaning, it has to exist between a mother and an actual child. There is no mother to a child who is only a potential child. Hence, that relationship is determined not by conception but by birth. In that aspect maternal and paternal relationship differ, as there is no other paternal relationship besides these that are created at conception.  

What seems to follow clearly is that a child's faith is that of his conceiving, or genetic, mother. Any child born from the zygote formed from K.'s sperm and H.'s ovum will be Jewish regardless of the faith of the surrogate mother. If the surrogate mother will be Jewish, the child will also be the legally paternal child of K. If the surrogate mother will be non-Jewish the paternal question needs an extra discussion - whether it is possible for a child to have familial relationship with a Jewish father and a non-Jewish mother. In either case, since H. will not have born and given birth to that child, she will not be considered his mother in the view of halacha. Since he is her genetic child he might resemble her, and possess some of her characteristics. She can raise and love him and regard him as her child, and she is the one from whom he will inherit the Jewish faith . But his legal maternal relationship will still be with his surrogate mother, and care should be taken to prevent possible incest when this child marries a sibling born by the surrogate mother.

From daat.