What Is Parenthood (Column 514)
In recent weeks, the question of what constitutes parenthood has burst into the public discourse. The discussion was sparked by an error that occurred at Assuta Hospital in Rishon LeZion involving in vitro fertilization. I wish to delve a bit into this issue and use it to demonstrate a sound method for forming a position on such questions.
Case Description
At Assuta Hospital, a fertilized egg was mistakenly transferred into the womb of a woman who is not the biological mother. During the pregnancy, while it was still assumed that the fetus was the daughter of the woman carrying her, it turned out that the fetus had a heart defect. At the mother’s request, an open-heart surgery was performed in utero. It was complicated and risky, but thankfully it succeeded. However, during the surgery a blood test was conducted and it emerged that there was no match between the fetus and the mother, and the mistake was discovered. The baby girl is not the genetic daughter of the woman carrying her (hereinafter: the surrogate).
Immediately afterward, another couple claimed the baby as their daughter, and a dispute arose over who the parents of this fetus are. The surrogate appeared publicly and asked to be left alone, asserting that this is her daughter whom she carries, suffers for, and cares for. The petitioners, of course, disagreed and claimed that they are the parents and that the baby should be given to them. A few days ago, the results of the genetic test came back and it turned out that the petitioners are not the parents. The genetic identity of the baby’s parents is now unclear. Throughout most of the public debate she was still a fetus, but a few days ago this unfortunate baby was already born.
Beyond fact-finding and the errors in this case, a public debate is underway about parenthood. Both in the public sphere and among professionals (jurists, the Ministry of Health, ethicists), opinions are divided. Interestingly, the entire discussion focuses on who the mother is, while all sides completely ignore the father. This neglect seems highly problematic to me, and I will return to it later. The topic has gripped the media and the public. Numerous articles and reflections have been published, and so far it appears the storm has not subsided and no decision has yet been made. We have been presented with halakhic, ethical, and legal opinions, pointing in every direction. Some changed following the genetic test results of the suing couple (see for example here in the Puah Institute opinion that shifted in light of these findings)[1]. A further question now arises: whether to continue testing and search for the parents among all the other patients at the hospital, or to leave the doubt in place and leave the baby with the woman who gave birth to her. This question does not necessarily depend on the question of parenthood.
The Sense of Helplessness
What all the articles I have seen on this topic have in common is that they do not substantially clarify the matter itself. It is not clear what precisely is in dispute. At times it looks like religious versus secular, or conservatives versus liberals, or other correlations whose connection to the actual positions at stake is unclear. There are word games about who is a “parent,” or who is a “biological parent,” as if there were a way to clarify these concepts and thereby decide the debate. But I have not seen anyone truly propose such a conceptual clarification. We are repeatedly told that what is at stake is an examination of the concept of parenthood itself, or of biology, and that this is a fundamental and very important inquiry to conduct. Well then, if that is the issue and it is so important, shouldn’t we try to proceed with a clarification? Yet on that front, I sense a deafening silence. There are opinions this way and that, but no persuasive arguments and no genuine analysis.
Among other things, I have seen claims that surrogacy processes and the redefinition of new family structures intensify the difficulty, since on the one hand it is no longer obvious that the genetic parent is the real parent, and there is a greater tendency to regard the rearing parent as the real parent. On the other hand, ordinary surrogacy is the provision of a womb—voluntarily or for pay—for the benefit of the commissioning parents, and in that setting it is somehow clear to everyone that genetics decides. (No one argues that the child should be given to the surrogate.) But in our case, as noted, we are not dealing with renting or providing a womb, but with surrogacy by mistake. Does that change things? Some claim it does. All these points explain why the discussion is hard, particularly why in our day it is even harder. But they do not help us advance toward clarifying the question itself.
Underlying everything hovers a gloomy spirit and a sense of helplessness that very powerfully accompanies this debate. There is a clear sense that no one really knows how to move forward. How does one define parenthood? Even when arguments are raised, they sound somewhat arbitrary and always disregard the other side of the dilemma. Even if someone advances an argument for one side, they do not explain why the other side is wrong. This is unsurprising, since once you also present the other side, the sense returns that we have no convincing way to decide in favor of either side. Before I try to move a bit forward, it is very important to pinpoint the root of the helplessness I described. Perhaps that will give us some clues about how we can nonetheless proceed.
The Core Difficulty: A First Look
The concept of parenthood is not a clear object such that all that is needed is to investigate it and arrive at the truth. First of all, it is a concept, not an object; therefore there is no straightforward way to examine its meaning and settle the dispute about it. Many will tell you it is a matter of definition, or merely convention. Where shall we find the real concept of parenthood that we all strive to reach? According to what will we determine its “true” meaning? One person says the parent is the one with the genetics, another that it is the gestational womb. The notion of a “biological parent,” which also comes up in this context, appears at first glance to be more clear-cut, but even it has been challenged. Some argued that those who say the genetic mother is the biological mother are mistaken. The surrogate is also a “biological mother,” since much of the fetus’s biology is formed in and by the surrogate’s womb. So wrote Shlomo Fiutorovski and several feminists who addressed the topic. To me this sounds like sophistry, and I will return to it below.
It is instructive to see the unreasoned “ruling” by Chief Rabbi David Lau on this matter. He merely notes that the great sages of Israel have deliberated at length, yet he presents no argument or substantive reasoning. What matters for us here is that when you read his words closely, you see he rules that the surrogate is the “biological mother,” which is frankly amusing. Is the Chief Rabbi the supreme biological authority in the State of Israel, and I did not know? Do not be misled: as I have explained many times (see my article here, my response to Yoram Yovel here, and my exchange with him in columns 25–26 and in the ensuing comments, in column 146, and more), in my view biologists cannot decide that the surrogate is a biological mother (and certainly not “the biological mother”). It is clear there are biological processes the fetus undergoes in the womb, but determining who is a “biological mother” is not a kind of scientific fact; it is a definition (in a value-laden sense). On such matters the biologist or scientist has no authority or advantage over others. At most they can inform us of facts concerning the nature of these biological processes, enabling us to form a better-informed value judgment. From this you may understand that when Rabbi Lau speaks about who the biological mother is, he actually means who the mother is. In other words, the concept “biological mother” is suspended in the air and just as vague as the concept “mother” itself.
Incidentally, I think the situation in halakhah is quite similar. It is hard for me to see significant arguments either way in the halakhic context, and I suspect there too positions are set by people’s intuitions, just as in the moral debate. Certainly if we take into account the limited scientific knowledge of the Talmudic sages, it is less reasonable to grant them the decision, even if we had a clear Talmudic source on the matter. In any case, I assume that in halakhah too, positions regarding who the parent is are largely determined by the ethical conclusion that seems right to the decisor, and not based on sources per se. Hence, the interesting question is the ethical one—not the halakhic one. Ultimately, that is probably what will determine the halakhic conclusion as well.
If we return to the philosophical discussion, our conclusion thus far is that one root of the problem is the conventionality of the concepts involved. If these concepts are conventions, then it is clear we cannot settle the dispute by conceptual analysis. On the other hand, the question of to whom to give the fetus is plainly an ethical question, for which there ought to be a right answer and a wrong answer. It is not reasonable to treat ethical questions as matters of mere definition or convention; thus, an arbitrary answer is not acceptable. At most we can say it is hard for us to reach the answer—not that there is no answer. True, there are certain ethical questions for which there could be several correct answers, but here the feeling is that we have no way to reach the truth, not that there is no truth. Put differently, even if we decide to hold a lottery between the mothers, that would be out of necessity, not because it truly does not matter. There ought to be a correct answer here.
I will note that I reject conventionalism. In my view, many concepts are not mere conventions; they have correct, objective definitions. And if there is a debate about them, one side is right and the other wrong. In my book Two Wagons (second gate), I called this approach essentialism, as opposed to conventionalism, and explained why I espouse it. According to the essentialist, the way to define a concept is to contemplate it with the mind’s eye and try to describe what we “see.” This is a kind of Platonism that regards concepts as quasi-entities that exist, not arbitrary definitions of ours. In my series of columns on philosophy (155–160), I argued that this is the definition of philosophy: contemplating ideas and concepts, conceptualization, and formulation. Yet even if one adopts an essentialist stance, that is but a declaration. Suppose I accept that the concept exists and has an objective definition—how can we proceed in our clarification? How exactly does one contemplate the Forms? And even harder: how can we explain this to others and/or settle disputes?
The Core Difficulty: Built-In Circularity
All this brings me to the principal difficulty in the discussion, both ethical and halakhic. In such debates, it seems all sides assume or expect that the methodology will begin with clarifying the concepts (“parenthood” or “biological parenthood,” in our case), and from there we will derive the value conclusions regarding the case at hand (to whom to give the baby). The first question is ostensibly factual (a product of observing the Forms), and the second is value-laden (who is the parent in the ethical sense—i.e., to whom it is right to give the newborn). But the difficulties described above sharpen the unfortunate fact that we have no way to clarify the concepts themselves before turning to ethical decisions. The very definition of the concepts is saturated with values and presupposes value assumptions. When you set the definitions of these concepts, you have already stated what you think the ethical implications are.
For example, when you determine parenthood by genetics, you are effectively saying the child ought to be given to the genetic mother rather than to the one in whose womb she developed (the involuntary surrogate). When people write articles claiming that the surrogate is the one who invested in the child, that her milk and blood are in her, and therefore she is the mother, they mean that she ought to be given the child. Otherwise this is merely a semantic dispute: one speaks of “mother” in the genetic sense and the other in the gestational sense. The dispute is the result of confusion because we decided to call both by the same name. It therefore seems the fundamental debate is not actually about concepts (the meaning of “parent”) but about the ethical question of to whom to give the child. The conceptual analysis is just a (non-intentional) red herring. Yet even on the ethical question, it seems we have no way to decide. One says thus and another thus—how can we decide who is right? We do have moral intuitions, and the articles on our topic indeed invoke them. People in fact begin from a moral intuition about to whom it is right to give the fetus, and then work backward to define parenthood accordingly. But note that, according to my analysis, that second step is simply unnecessary. If the whole meaning of “parenthood” for our purposes is merely to whom to give the baby, then say your view on that matter and do not contort your conceptual definitions to fit it. This adds nothing to the discussion.
The conclusion is that we have no methodological way to conduct a conceptual clarification and from it derive the value conclusion, since the latter is interwoven into the very definitions. In my view, this is the root of the helplessness we all feel about this question. Each of us is stuck on our side and in our gut feelings, with no way to advance arguments, decide, let alone persuade. I will now bring a few examples.
Some Examples of Similar Logical Loops
I addressed a similar problem in my exchange here with Dr. Vladimir Weinstein about defining “person” and “life,” and also in column 424. I took a similar methodological path in my article on organ transplantation, where I argued that there is no need to define what life is in order to decide whether it is permissible to harvest organs to transplant into a sick person who needs them, since the various definitions people give to the concept “life” are themselves based on their ethical stance on whether organ harvesting is permitted. They proceed from ethics to concepts, not the reverse. We have no independent way to determine what life is other than through the ethical implications of the discussion. Incidentally, I was pleased that in that case I also had a way to decide the ethical debate without passing through a definition of life; redemption came to Zion. But in other debates people feel helpless because they feel one must determine who the parent is yet cannot find a way to do so.
Another example of the same logical circularity is the discussion I held about the definition of intelligence (see column 108 and columns 23–24). There too I showed that the different definitions are set in such a way as to yield the desired value implications, and I explained the methodological problems present in such issues (which are presented as if they belong to science, when in fact they reflect value positions).
A similar phenomenon can be found in Karl Popper’s philosophy of science. As is known, Popper argued that one cannot prove a scientific theory but can falsify it. For example, the theory that all crows are black cannot be proven, since you cannot know whether you have observed all crows in the world. But it can be falsified, for if you produce a single non-black crow, it is refuted. Hence, he claimed the criterion of scientificity is falsifiability. Yet there is a difficulty that must be addressed precisely regarding falsification. Suppose we see a pink crow and thereby refute the theory that all crows are black. But perhaps the pink creature we saw is not a crow at all? The proof: it is not black. How do we know that blackness is not part of the definition of a crow? Remember that the same problem exists for all of the crow’s characteristics, not just its color. If so, we must decide what a crow is before we observe its properties; but if we do not know its properties, how will we know what a crow is? Again, a loop that bites its own tail. Ostensibly, one should first examine what a crow is (conceptual analysis) and then scientifically investigate its properties. But those properties are woven into the very definition of the concept “crow.”
Having better understood the root of the problem, we can try to move toward clarifying the dispute and perhaps even reaching a decision.
The Formal-Ethical Argument and the Moral Argument
It seems to me that in this issue we can distinguish three principal types of argument that belong to two different categories:
- The argument for the genetic mother is based on the consideration that the fetus is her genetic product and therefore is hers. This is not really a moral argument (see clarification below) but a kind of proprietary argument. What came from me is mine. I do not mean that the mother “owns” the child as property, but the logic operates somewhat like ownership. The child is hers, even if not in her possession. This is a formal-ethical argument.
I should clarify that from here on I am not using the term “ethical” in the same sense as “moral.” Ethics is a system of rules by which one ought to act. It is more connected to rights, ownership, and the like, and not necessarily to sentiments of compassion and esteem. Morality, by contrast, relates to compassion and obligations toward people by virtue of their actions. This will be clarified below; for now this is only terminology.
That was the argument for the genetic mother. The arguments for the surrogate (I will use this term to distinguish her from the genetic mother) can arise from two directions, although their formulations often look very similar. The claim is that the surrogate is the one who deserves to be called mother and to receive the baby, by virtue of the fact that the fetus developed in her womb. Yet this very argument can be understood in two ways:
- A formal-ethical argument according to which the surrogate is, in fact, the biological mother. Part of the fetus’s biology is attributable to her as well, since our bodies contain components beyond genetics. Consider that without the surrogate, the fetus would indeed have the genetic makeup of the genetic mother, but would have remained a fertilized egg—or perhaps a dead fetus. She is alive only thanks to the surrogate; therefore the surrogate clearly has a part in her biology. In our case, a fetal open-heart surgery was performed in utero entirely at the surrogate’s initiative. In that, she literally gave the child life. If so, the surrogate is the biological mother, or at least is one too, and is more deserving to be considered such than the genetic mother.
- A moral argument. The surrogate invested efforts in the fetus and endured severe suffering during the pregnancy on her behalf (including the complex surgery mentioned). She carried her in her womb for nine months, with all that entails. By contrast, the genetic mother did not invest anything in this specific fetus (except perhaps the IVF treatments, which are not easy, of course, but it is doubtful how much one can regard that as investment in this particular fetus). Therefore, the fetus “belongs,” as it were, to the surrogate.
The difference between the first two grounds is the question of what counts as biology or which part of biology determines parenthood. Both accept that a biological basis is decisive, but they dispute whether biology is genetics or incubation. Note, incidentally, that both of these arguments address only the mother. Regarding the father there is no dilemma, since the surrogate’s husband is not the fetus’s surrogate father. Therefore, it seems there should be agreement that the genetic father is the true father (by argument A). Yet somehow this does not enter the discussion at all; I will return to this point below.
In any case, we can see a categorical difference between these grounds. The first two (leading to opposing conclusions) clearly speak to the question of who the parent is and assume that parenthood is biological. There are no moral duties toward the mother here—only a formal definition of parenthood by biology (genetics or incubation). On these grounds, the fetus does not “belong” to her mother for some moral reason; she is simply hers. It is a kind of factual or proprietary consideration.[2] The value conclusion (to whom to give the child) is derived from the conceptual analysis (who the parent is). As I noted, the initial intuition of all sides in this debate tends in this direction.
But the third ground proposes disconnecting the concept of parenthood from biology and transferring it to the realm of investment. Such arguments also arise regarding adoption: the adoptive parents are the “true” parents, for they raised the child and invested in him throughout his life. This ground is moral: the one who invests deserves to receive the product of their investment. Moreover, this ground appears not to grapple with who the parent is. That question is unimportant, and it is not treated as a matter of fact. The important question is who deserves the child; parenthood is perhaps an offshoot of the ethical question (as we saw above).
One can, of course, insist on defining “parent” by the one who invests in the child—but that is sophistry. In the end, it is clear that this justification subordinates the definition of “parent” to the ethical question (to whom the child ought to be given). Below I will argue that the second ground is mere pilpul. It hides behind it ground C and merely dresses it in a formal-ethical guise. No one truly thinks biological parenthood is carrying the child in the womb (cf. ordinary surrogacy). In essence, the dispute is between formalism that anchors everything in genetics and morality that favors giving the child to the surrogate. In any case, the third ground, unlike the first two, speaks directly to the value implications. There is not even an appearance here of investigating the meanings of “mother” or “parent.”
By the way, I will add a correct observation by Yuval, who wondered about the child’s own rights and wishes. Why does no one address that consideration? Now I can say: if the relevant consideration is moral, then we must take into account the child’s best interests and wishes, not only what is due to the mother. By contrast, if the consideration is formal-ethical, then the child’s welfare is not relevant (except in extreme cases, such as a mother who cannot raise the child). I saw that the court did address this, but only regarding whether to conduct testing to determine who the mother is—not the substantive question of who the parent is.
Gratitude and Copyright
It is hard to avoid mentioning two adjacent issues where we find similar references. Regarding copyright (see in my article on property law), there are (unpopular) approaches according to which the right belongs to the creator because they created it. It emerged from the ideas of their heart and mind; therefore it is theirs. Plato calls creations “the children of the creator’s spirit,” highlighting the analogy to parenthood. By contrast, the more prevalent approaches in law tether copyright to considerations of social utility (granting creators rights to incentivize creation). This is very similar to what we find here. Admittedly, in copyright I do not know of anyone who attributes substantive weight to the creator’s effort. Proponents of the proprietary approach argue that so long as one created the idea, the rights are theirs. Others are unwilling to acknowledge such formalistic metaphysics and therefore tie the matter to social utility (morality, if you will).
In a panel I participated in (see also a discussion that followed), I argued that copyright is an expression of a person’s ownership of their information (which they created), and from this I deduced that parents have ownership of the genetic information that created their children (or of the drops of semen and egg they left behind). This is the basis for the formal-ethical argument that speaks of assigning the child to their genetic parents. From copyright we move directly to the question of parenthood (which was explicitly raised there).
A similar phenomenon can be seen in my article on gratitude (where I also briefly brought the copyright example). I argued there that in the Torah—and in our intuition—there are two types of gratitude: moral gratitude and philosophical (ontic) gratitude. Moral gratitude is the duty to repay good to one who did good to me. Of course, it is also conditioned by the effort they put in; the more they labored for me, the more gratitude I owe. This gratitude is due to them by moral consideration. Philosophical gratitude, by contrast, is the obligation toward the one from whom I came. This is not due to them morally; it is simply theirs. The mere fact that they created me gives them rights concerning me (obligates me to them), irrespective of their investment or effort. I brought commentators who link this to the verse, “Do you thus repay the Lord, O foolish and unwise people? Is He not your Father who acquired you? He made you and established you.” Our obligation and gratitude to the Holy One, blessed be He, stems from His having made us and established us. Creation itself is one ground for gratitude (ontic gratitude); of course, His maintenance and nurturing of us—His investment in us—is the moral ground.[3]
One example I cited there is our obligation toward our parents. Intuitively, we feel that a child has an obligation to their parents by virtue of the fact that they are their parents. Beyond that, there is a duty of gratitude due to their investment in the child. These are two obligations, and both exist. This precisely parallels the dispute we saw in the case of the switched fetus.
Back to Our Case
So, ostensibly, we have taken the first step in our analysis. At least we now see clearly the two sides of the debate: is parenthood determined on the ontic-philosophical plane, or on the moral plane? I would now formulate the question as whether conceptual clarification is decisive (in which case we must resort to a formal-ethical consideration), or whether moral rules—tethered to investment—are decisive. The dispute in our case may be over which of these two is correct. But, as I will explain momentarily, I think it is more plausible that everyone agrees both sides exist; the question is which one prevails.
I will first explain why different people support different sides. Those who hold a conventionalist view—that concepts are matters of arbitrary definition (convention)—attribute no importance to genetics. We define “parent” according to the concept’s purpose. If, on value grounds, we think the fetus should be given to the surrogate (because she invested in her), we will define parenthood accordingly. But one who believes that a concept has an essence (an essentialist) and asks what parenthood is before considering the value implications will likely reach the answer that biology decides. I would even go so far as to say that according to this approach it is quite clear that genetics decides, since the biological addition of the surrogate is external (one who supplies a person with food—no one will say that person is the one’s father, even if the food contains products of the supplier’s body). Therefore, I wrote that in my view ground B above is not truly about defining parenthood but about a moral duty. The formulation that the surrogate is the mother is morality in formal dress.
But now each of us must ask: do we truly ascribe no meaning to the concept “parent” beyond its ethical implications? At the beginning I noted that most people feel the right order of discussion is first to clarify the concept “parent” and only then derive value conclusions. If so, we sense that the concept has some meaning, even if it is hard to put a finger on it. If that is the case, the reasonable candidate for defining “parent” in a sense detached from the implications is the genetic (and perhaps biological in general) sense. That is whom we ordinarily call “parent.” Consider cases where there is no surrogate, or where the surrogate is paid, or the discussion concerns the father—where no surrogacy question arises. In all these cases, everyone agrees that the child belongs to the genetic parent. Genetics determines parenthood. If so, none of the sides will deny the very significance of genetics regarding parenthood. One cannot say genetics is irrelevant. The dispute arises only when genetics clashes with the surrogate’s claims.
But if so, then the definition of parenthood is clear: genetics determines it. The dispute begins only where there is a surrogate (not for pay) who merits to receive the child (even though the child is not hers). As we have seen, this is a moral debate (sometimes conducted in formal-ethical disguise, but that is just misleading). The question is whether the moral right can override the formal-ethical definition of “parent,” or not. Is it justified to take the child from the parents because of a moral consideration or due to another’s investment? You can already see where this is going.
Take Rabbi David Lau’s ruling above. He says the surrogate is the mother for the purposes of lineage, but immediately thereafter he argues that we must nevertheless determine who the genetic mother is so that the baby will not later marry her brother (forbidden relations). But if in his view the surrogate is the mother, why would the brother of the baby from the genetic mother be her brother? Why would marrying him be a forbidden relation? After all, they do not share the same parents. In other words, it is clear that even those who maintain the child should be given to the surrogate do not ignore genetics. The statement that the surrogate is the mother is nothing but a value claim that the baby should be given to the surrogate, dressed up as a formal-ethical consideration. I remind you that Rabbi Lau says she is “the biological mother”!—and immediately proceeds to a discussion that presumes forbidden relations are with one’s genetic sibling. That sounds like a contradiction. This shows that his argument is phrased that way merely to show those who favor formal-ethical genetics that they are wrong even on their own terms. But he does not truly intend to define the surrogate as the parent.
I have not found anyone who says that even if the baby is given to the genetic mother, it is still important to ascertain and preserve information about the surrogate mother to prevent the baby from marrying her surrogate-siblings (surely a forbidden relation, no?!). In short, the claim that the surrogate is the biological mother does not hold water. Those who believe the baby should be given to the surrogate are not speaking about the conceptual/factual question of who the mother is, but about the value question of to whom the child should be given. The goal of that consideration is to advance the moral thesis under the guise of a formal-ethical argument.
Conclusions and Decision
We still have not decided the debate itself. We have advanced by understanding that, according to all opinions, genetics determines parenthood. The opposing side merely argues that morally the baby is due to the one who invested in her. The debate is whether the moral consideration indeed prevails, or the conceptual definition decides; and to decide this, we must discuss that very question. That is, the debate is not who the parent is but whether it is right to take the child from the parent and give her to someone else.
On that question, I think it is fairly easy to proceed. If the genetic mother is the fetus’s mother, then to argue that we should take the baby from her mother and give her to the one who invested in her assumes we are dealing with an object to be given to the one to whom it “belongs.” But a child is not an object, and it is unreasonable to hand them to whomever “deserves” them. A child is not a prize awarded to a noble person who invested in her, with all the esteem due to such devotion. My presumption is that a child should grow up with their parents. This is a formal-ethical principle, even if not a moral one—and, as we saw, it is accepted by the general public.
To sharpen this, think of a case where there is no moral consideration in favor of the surrogate. In such a case no one would say that the child has no mother at all and therefore should be given for adoption. Everyone would agree that, first and foremost, the genetic mother is the mother and the child should be given to her. Now arises the question: should we take the child from her mother and give her to the surrogate? On such a question we can say (not in the proprietary sense, but as a matter of proper legal-procedural conduct): “he who seeks to take from another bears the burden of proof.” To remove the child from her mother and give her to another woman requires a clear argument. In the absence of such an argument, the baby should remain with her mother. No one would say we should take a baby from her mother because someone else invested and helped, however great that investment and however much appreciation is due for it.
It cannot be denied that this resolution creates a difficult feeling on the moral plane. The unfortunate surrogate invested her milk and blood in the fetus; she was certain the baby was hers; and now the baby is taken from her. But it is important to note that this is a moral feeling—compassion for the surrogate—not a substantive ethical consideration of who the parent is. Using a different definition of “mother” or “parent” is misleading (albeit innocently). The sense of moral wrong seeks to translate itself into the language of parenthood—and that itself indicates that we all understand that biological parenthood is a highly significant consideration concerning to whom to give the baby. Taking a child from their parents and giving them to another woman strikes me as a very problematic step; with all the sorrow for the surrogate, the burden of proof lies on the one who claims this is what should be done.
The Meaning of the Decision: The Analytic and the Synthetic
I think the dispute here relates to the analytic–synthetic divide that I described in my quartet. Those with an analytic stance see concepts as arbitrary conventions—or social constructs, if you like—and therefore, for them, there is no truth or falsehood in defining concepts. Social concepts are constructions designed to advance aims (some of them very worthy). Unsurprisingly, they decide the question according to their moral views rather than according to definitions. They express this by saying that the surrogate is the mother—but, as noted, this is an empty statement. The same is true about sex and gender: there, too, they argue these are social constructions and must be subordinated to the social agenda and aims (as they see them). I think the sense of helplessness and circularity I described stems from a failure to understand the distinction between the planes: the conceptual plane of parenthood and the value plane derived from it—or not. One cannot distinguish these planes without adopting an essentialist view of concepts.
Opponents argue that parenthood and motherhood have objective definitions, and goals—however worthy—cannot change them. Therefore, indeed, one can decide on the conceptual plane and then move to the value questions. The logical loop does not arise within an essentialist–Platonic picture that sees concept definitions as claims bearing truth values. On this view, the moral consideration cannot determine concept definitions; it can be taken into account, if at all, only after finishing the conceptual and ethical discussion.
I explained there that such a view usually rests (and ought to rest) on a transcendent source that sets and gives concepts their meanings (He “created” them). That is God, at least in some philosophical sense. In a materialist–atheist outlook there is no such source, and there is no reason to take concepts and their definitions seriously as a basis for norms and moral determinations. From this follows analyticity and conceptual conventionalism. One who espouses a synthetic stance (usually a person who believes in God, at least philosophically—see column 456) sees concepts as a kind of Platonic Forms; therefore one must observe concepts to know their “true” definitions. One who defines them otherwise is mistaken. This is precisely the work of philosophical contemplation (such as I have done here). For such a person, the definition of the concept (parent) is the basis for the value decision (to whom to give the child). It is a kind of fact, whether we like it or not, not a determination left to us. Incidentally, I mentioned above my article where I distinguished between halakhah, which regards ownership as a fact, and civil law, which sees it as a convention set to achieve social goals. That mirrors the distinction I made here.
I believe this is also why the entire discussion focuses on who the mother is while blatantly ignoring who the father is. If it is decided to give the child to the surrogate, then her father would be the surrogate’s husband—even though, regarding him, it is entirely clear that he has no connection to her. With respect to the father, no one disputes that the genetic father is the father (this is further evidence that everyone agrees genetics is not irrelevant and that “parent” has an objective definition). I think this reflects a tilt of the discussion from the formal-ethical direction toward the moral direction. On the moral plane, the question of who the father is bears no meaning, because the father has no moral relationship to the fetus—he invested nothing in her, and his fatherhood is a formal fact. But in the formal-ethical view, the father and mother have equal standing as those responsible for the fetus’s genome (investment is not relevant at this level). The disregard for the father points to the fact that, without our noticing, the entire discussion has been skewed toward moral–conventionalist directions. Thus, even conservatives–essentialists end up speaking in language imposed on them by the analytic–conventionalist discourse, and they too omit mention of the father.
I note that this analysis can be expanded to the various phenomena of dismantling the concepts of family, sex, and gender. The definition of many kinds of families, the definition of gender types, and other social concepts depends on the same analytic–synthetic dispute. For those with an analytic stance, these are social constructions; there is no more or less correct. Therefore the conventional definitions have no preference save that they predate us and are already in place. Hence, for them, there is no reason not to construct additional varieties and types of families, since there is no true or false here. One implication of my analysis is that, even without conducting a survey, I can hypothesize that right-religious people will tend toward the genetic view and left-secular people toward the moral (investment-based) view. There is your explanation for one of the odd correlations present in this debate. Some will attribute it to conservatism versus innovation, but in my opinion it is synthetic versus analytic (or conventionalism versus essentialism).
To sharpen the difference, I will add that I, for example, do not see myself as a conservative, but I am an essentialist. On the one hand, I am inclined to think there is right and wrong in social definitions—i.e., I am an essentialist. On the other hand, I do not necessarily think that the previously accepted definitions are more correct—i.e., I am not a conservative. Thus, in the debates about gender, I favor moderate queerness (see columns 497 and 504), meaning that gender is not necessarily dependent on sex. This is not a conservative position, of course, but it is fully compatible with essentialism. Extreme queerness, as I defined it there, expresses an analytic position according to which there is no true definition and we are dealing with constructions for social needs. That I, of course, oppose, and I have shown the absurdities to which it leads.
The Meaning of This Analysis: Contemplating Concepts
The analysis I conducted here is an example of what I called “contemplation of concepts.” I reached a conclusion about the meaning and definition of “parent,” and from it I derived the value implications. The sense of helplessness I described stemmed from the inability to separate the conceptual discussion from its value implications, rooted—as I said—in conventionalism. Essentialism is not just an unconstructive slogan, as people assume (I noted this above). It can indeed guide us toward practical clarification of the meaning of concepts. First, we must recognize that we are dealing with the concept itself and try to detach it from the value implications. Having detached it, we arrive at the conclusion that there is, in fact, no ambiguity regarding the concept of parenthood (so long as one accepts that there is such a concept and it is not merely a social construction for an agenda). We must examine the definition of the concept through various cases and instances—so I have done here—and I reached the conclusion that genetics is the relevant parameter. From that, the necessary value implications can be derived.
Incidentally, this move is a classic method of analytic philosophy. I have written more than once that I am thoroughly a devotee of the analytic method in philosophy, for it helps clarify concepts, discussions, and disputes; but I oppose the analytic approach that sees conceptual-logical analysis as the be-all and end-all. Here you can see a fine example: the analytic method is what I did here; the analytic approach leads to conventionalism, helplessness, and an inability to decide between two coherent possibilities.
A Brief Note: Should We Search for the Parents?
The question whether to continue searching for the genetic parents is a separate matter. In my opinion, definitely yes—but that is not my main topic here. Briefly: halakhically, it is important in order to give the baby to her parents and also to prevent sibling marriages (and not only halakhically—there can be various problems from such marriages). The moral argument cannot change the legal-formal situation. The child belongs to her parents (though she is not their property), and if it is possible to find them, the difficulty is not a reason not to do so. Compassion for the surrogate is also not a reason not to give the child to her parents; and I see no difference between a case where a specific couple is petitioning (as at first) and a case where we must search for that couple. Beyond all this, the father also has rights, and the surrogate’s husband certainly cannot stand in for the genetic father.
[1] There is no contradiction between those two opinions, of course. One can certainly say that the genetic mother is the real mother, but if it is very hard to find her and there is a surrogate mother, then it is neither worthwhile nor obligatory to continue searching.
[2] As I understand it, in halakhah ownership is a fact. See my article here.
[3] There is room to ponder which of these is “making” and which the verse calls “establishing.”
Discussion
“I have not found anyone who says that even if the embryo is given to the genetic mother, it is still important to clarify and preserve the information about the surrogate mother, in order to prevent the embryo from marrying her sibling through the surrogate mother (that is a forbidden sexual relation, no?!).”
That is indeed the instruction, even according to the views that the genetic mother is the halakhic mother. (Out of doubt concerning incest and the like.)
Hello Rabbi,
What do you say to the following argument?
That motherhood includes two components, both genetic and uterine, and therefore a truly biological mother is a mother who has both of these components, whereas when only one component exists, neither woman is an absolute biological mother, and therefore one can decide who will actually be considered the mother on the basis of various considerations.
For that reason one can also understand why incest would be forbidden with the genetic mother even if it were decided that the mother in practice would be the surrogate.
What is being discussed here is an argument for giving the baby to these parents as a prize or out of compassion. But that is precisely my claim: it is unreasonable to rely on arguments of compassion when it comes to handing over a baby. She belongs to her genetic parents (not necessarily in a proprietary sense, and therefore this is not contingent on their claiming her. Even if there are no claimants, she is theirs). But my comment about searching for the real parents was written briefly at the end. It is not the main point of my discussion.
Interesting. I wasn’t familiar with that, and it really doesn’t seem plausible to me.
That is of course possible, but my inclination is to think that a uterine mother is not a mother. That of course has implications for ordinary surrogacy as well.
You can look at it less sharply, as I said, as an act of kindness. Not law.
That is exactly my claim. I cannot bestow kindness at other people’s expense, and handing over a baby cannot be done as an act of kindness. What would you say about parents who, as an act of kindness, would give their little son to a childless couple?
It is not some great novelty that we take all opinions into account, especially when it is something that is not particularly complicated to do on the one hand, and involves a doubt concerning incest on the other. (Even though, in my poverty, I agree with you that the genetic mother is the halakhic mother.)
More than that, the surrogate is asked that if she undergoes such a process again with another couple, she should ask them to tell the first couple who they are (so that a child from the first process will not marry the child from the second process).
Has such a thing never happened? It is not my personal preference, but we have heard of such things. Parents with many children give a child to be raised by a barren aunt, and cases of that sort. My claim is that it is not certain that this is “at others’ expense.” Perhaps the others are not interested at all. In the present case I have not heard a burst of reactions demanding an investigation in case the baby is theirs. Therefore I say: this is an exceptional case. One can be flexible in it. We know of children raised by stepparents, and adopted children. It is not the end of the world when the biological parents are not in the picture, or are unfit, or are not alive.
But this is not handing him over for someone else to raise him (which is itself very problematic). Here they will be considered his parents, and he will not know at all who his parents are (and his parents will not know either). And of course there are all the concerns about marriage to relatives.
What is a child?
You sharpened the lines of the discussion well, and by means of a sharp analysis you removed the veil from the foundational pillars on which it rests—but one principal detail remains open, and in my estimation it is worth examining. As follows:
The question “what is a mother” depends on the question “what is a child” (a person), meaning that one must carefully examine what that component is on account of which the title “person” is applied.
It is clear to us that this is a “component” (and not an “object” that can be attributed only to one entity), since the father too has a share in parenthood.
Why, then, is it so far-fetched that the parental equation should be composed of egg, sperm, and womb?
(The word “womb” somewhat reduces the significance regarding the concept of parenthood. But surely it is clear that no one would call a combination of sperm and egg a “person,” as opposed to that creature with organs that was formed at the end of a uterine process.)
In light of the above, I would disagree with you on the question of whether to search for the mother, and in my opinion, so long as it is not clearly established that a baby is only sperm and egg, it should be left in the hands of the surrogate, who turned a chemical compound into a “person.”
Does the same apply to egg donation?
A more mathematical analysis would be that there are several equations with several unknowns:
1. What is the law regarding egg donation?
2. What is the law regarding a willing surrogate?
(The accepted conception is that it depends on intent. That is the reason such a difficult problem was created here,
3. What is the law in a case like this, of surrogacy/egg donation not by choice?
(There is something akin to “the law of a Hebrew slave, the law of a guarantor, the law of both,” in tractate Kiddushin.)
Something that could support the genetic ruling is the question of who the grandfather is.
After all, a baby can be born long after the mother’s parents died, and nevertheless we associate them as “biological grandparents,” even if other parents raised the child.
With God’s help, 7 Cheshvan 5783
The whole discussion of to whom the child “belongs” seems to me misplaced. The child belongs to the “third partner,” who gives the soul, and He, in His Torah, determines who will fulfill the role of “father” and who will fulfill the role of “mother.” Perhaps in this Eve, “the mother of all living,” erred when at the birth of her first son she said, “I have gotten a man with the Lord,” but after what happened—she learned the lesson and said when her third son was born, “For God has appointed me another seed.” There is no partnership here; rather everything is “a gift from on high.”
What should be discussed is after whom the child is reckoned: Whom does he inherit? Who determines his Jewishness? And who determines his tribal identity? Whom is he obligated to honor as a parent? And who is obligated to raise and educate him? It would seem that in questions of lineage and identity, the biological factor determines, but in the question of the “commandment of honoring,” there is also great significance to the moral obligation of gratitude. In the question of custody as well, the child’s best interest carries great weight, requiring examination of who is more emotionally connected to him.
On the question “who is the mother?”, Rabbi Binyamin David of the Puah Institute wrote (in the article “Whose Child?”, on Arutz 7) that the more prevalent opinion among the decisors is that the pregnant woman and the woman who gives birth is the mother, for a fertilized egg is still not a “person.” Only after 40 days of pregnancy does the embryo begin to be considered “alive,” and that takes place in the womb of the pregnant woman. However, there are decisors who held that the egg owner, the father’s partner in the genetic material, is the mother. And there are those who held that one must take both women into account—both the pregnant woman and the one who gives birth, and the giver of the genetic material—and regard both as mothers. It therefore seems that Rabbi Lau ruled that the woman who gives birth should be considered the mother and should receive the child to raise, but one should also take into account the view that the egg owner is the mother.
By contrast, regarding the father, Rabbi David writes that it is agreed by all that the sperm donor is the father; upon him are imposed the “father’s obligations to his son,” and he is the one obligated to circumcise him, sustain him, and educate him. On this basis Rabbi David concluded that the rabbinical court would rule that the child should be raised by his father who provided the sperm, and that he would need to pay the birth-mother as a “surrogate.”
I am not expert in the halakhic discussions on the subject, but on the face of it, at least until age six the son certainly needs to be with the woman who gave birth to him. And even after that, even in the time of the Sages the rule was that the daughter grows up with her mother, and today it is accepted that the son too remains in his mother’s custody, while the father pays support and meets with him regularly, the decisive consideration being the “best interest of the child.” Therefore my layman’s opinion is that a child who has grown up with the woman who gave birth to him should not be moved from her family to the family of the father who provided the sperm, but should remain with his mother while preserving the bond with his biological father, who is obligated to support and educate him.
With blessings, Yaron Fischl Ordner
The father is proof of the centrality of genetics, for in his case there is nothing beyond that. I explained why in my view the womb is not important through various cases. An incubator, too, is a womb. The combination of sperm and egg is the full human potential. The fact that flesh must also form does not seem essential to me.
By the way, I did not write that the womb approach is absurd. I wrote that in my opinion it is incorrect and implausible.
I wrote that in my opinion genetics is the essential component. From here comes the answer to all your questions.
An article in Haaretz—I can’t see past the paywall, but the direction is clear
https://www.haaretz.co.il/gallery/galleryfriday/parenthood/2022-10-31/ty-article/.highlight/00000184-2d85-d238-ab97-2daf25c90000
On the face of it, the genetic parents are not interested in parenthood. The genetic father is not searching for his son in order to support and educate him, and the husband of the birth mother sees himself as obligated in all the father’s obligations. There is here a natural situation of an “adoptive father.”
Therefore, it seems to me that one should act as in the case of adoption: the details of the genetic parents should remain confidential so as not to harm the integrity of the adoptive family, until the child reaches adulthood and wishes, if he wishes, to know who his genetic parents are; then he should have the right to that information.
It is important that the Ministry of the Interior have the information about the genetic parents, also so that when the child comes to marry, he can verify the legitimacy of his lineage and the like. Then, if there is a halakhic problem, he can request that his genetic parents be located.
With blessings, Accusativus Genitivus Dativus
Strongly agree
However, if the genetic father is a kohen, it is important that the son know this so that he will not become impure through the dead, especially when he reaches the age of mitzvot. But even here there is no need for him to know the father’s specific identity; it is enough that he know his father is a kohen. So it would seem.
With blessings, Ag"d
Hello,
Simply a delightful column, so understandable and clear.
So it is true that the child belongs to the genetic mother and the surrogate mother cannot claim the child by virtue of distress and investment.
But what about the claim that the surrogate mother should also be considered, as it were, the genetic mother, since she took a nucleus and turned it into a human being with parts from her body?
Not because of the investment, but because in a certain sense she made him from her body, and therefore he is hers?
For the halakhic clarification of the subject “Who is the mother?” see the articles of Rabbi Aryeh Katz, “Lineage of the Child from Egg Donation,” Assia 99–100; idem, “Lineage of the Child in Egg Donation—A Supplement to the Discussion of Rabbi Ovadia Yosef’s Approach,” Assia 101–102; idem, “More on the Lineage of the Child in Egg Donation and Surrogacy,” Assia 113–114; Rabbi Eitam Henkin, “On the Attribution of a Newborn to a ‘Surrogate Mother,’” Assia 111–112. All the articles can be viewed on the Schlesinger Institute website.
With blessings, Yfa"or
With God’s help, 8 Cheshvan 5783
Rabbi Michael Abraham’s tendency to define parenthood according to the genetic material equally contributed by the sperm donor and the egg donor corresponds to his general approach that halakhah should be updated in accordance with newly emerging scientific knowledge.
By contrast, the prevalent view among decisors—that the father is the sperm donor and the mother is the pregnant woman who gives birth—corresponds to the tendency to determine the parameters of halakhah according to visible reality: that the father impregnates and the mother conceives and gives birth.
After all, the Torah was not given “to the ministering angels,” who know through sophisticated microscopes what occurs in the hidden recesses of cells. Just as the Torah did not forbid eating microscopic “living creatures,” so too the Torah did not require the use of knowledge and means that were not accessible to “the judge who shall be in those days.”
With blessings, Yaron Fischl Ordner
One of the arguments mentioned by the decisors, according to my cursory reading of the articles to which I referred, is the reasoning that even if the owner of the fertilized egg has the status of “mother,” once the egg was implanted in a woman’s body and absorbed there, it became an inseparable part of that woman’s body, and it follows that she is the owner of the “fertilized egg.”
Could it enter the mind that a kidney donor would continue to claim ownership over it after it was implanted in another person’s body?
With blessings, Yfa"or
Admittedly, there was an Arab woman who had a kidney donated by a Jew implanted in her body, and later painted herself and colored the “Jewish kidney” black, but I don’t think we should bring proof from such ingratitude in an ethical discussion 🙂
That is possibility 2
Thank you for a wise analysis and for the inevitable conclusion.
With all due respect for the mother’s heroic “investment,” her approach is selfish. The child’s good was before her eyes, but no less than that, her own good.
When a couple enters such a process they do so with the intention of bringing into the world their own genetic child. And if it turns out that a mistake occurred, it is like lost property that must be returned to its owner. (And perhaps couples should be made to sign such an agreement before the process begins.)
Shatz"l and Hayuta, if your child had been taken from you for any reason whatsoever, would you be able to sleep peacefully even one night? How can it be conceivable to rob a child because of a mistake, investment, or disappointment? What kind of patronizing attitude is it not to inform the genetic parents and find out what they want? (In the Yemenite Children affair too, there were parents who did not have the strength to chase after their stolen child. Did that justify the continuation of the theft?)
And Shatz"l, I did not understand your two arguments at all. After all, the entire process takes place thanks to newly emerging scientific knowledge. So what is wrong with using newly emerging scientific knowledge to locate the genetic parents? And what place is there for comparison to organ donation, which is done ab initio with the donor’s consent?
And in conclusion, Rabbi Hanina ben Dosa also invested not a little in the chickens, and nevertheless returned them to their owners.
*First paragraph—the surrogate mother’s heroic “investment”
With God’s help, 8 Cheshvan 578
To Ima—greetings,
An embryo begins to be considered alive (to some degree) from the 40th day onward, and before that it is considered “mere fluid.” Therefore many decisors hold that the mother, from the standpoint of halakhah, is the woman in whose body the pregnancy was created.
Since in the present case the mother received the egg from the hospital in a process of “donation,” there is no defect whatsoever in her actions; compensation to the woman who provided the fertilized egg rests on the hospital and not on the mother. Even according to the side that there is doubt who the mother is—the egg donor or the pregnant woman who gave birth—the pregnant woman who gave birth is the one in possession, and “the burden of proof is on the one who seeks to extract from another.”
With blessings, Yfa"or
By the way, in my humble opinion, even if there had been a surrogacy agreement in which the pregnant woman who conceived and gave birth obligated herself to hand over the fruit of her womb—I have not examined this halakhically, but in my layman’s opinion an agreement in which a mother undertakes to hand over the fruit of her womb to another is highly problematic. A woman will not give up the fruit of her womb except out of severe emotional or economic distress, and it is not proper to exploit her distress and take from her the fruit of her womb. Of course one can require her to pay the egg donor for her donation, as is customary to pay for an egg donation. So it seems to my poor understanding, but I do not know what the decisors say about this.
The fertilized egg belongs to a particular woman or to a particular couple. You can call it a baby or lost property. The name does not matter. A couple who enters such a process does so on the understanding that their offspring belong to them alone.
I am not familiar with halakhic rulings that determine otherwise. On the face of it, that is distorted and frightening.
Concealing information is infuriating patronizing behavior. There should be full transparency with the genetic parents.
Insisting on ownership of a child who is not yours, even if you saved his life, is selfishness pure and simple.
And taking from a woman who in good faith received what she was told was an “egg donation,” and on that basis conceived and gave birth, and now we demand that she give up the fruit of her womb—that is not “distorted and frightening”? What hurts more: losing a microscopic egg or losing a child whom the woman carried for nine months and gave birth to in a difficult labor, and in the end—nothing at all? What is she guilty of in the hospital’s mistake? A drop of humanity would not hurt…
With blessings, Yfa"or
And parallel to the title—what is parenthood?—one can also ask: who is an offspring?
Perhaps in light of the second question things become clearer.
If one wants to avoid such unpleasant situations, in which an egg intended for “surrogacy” is mistakenly given as a “donation,” it is important to request supervision by an organization specializing in this, such as the Puah Institute and the like. Strict supervision prevents mishaps.
With blessings, Yfa"or
The question of what hurts more is not relevant at all. And perhaps the pregnancy was really enjoyable? And perhaps everything was pleasant and the delivery was easy? And perhaps next year she will be able to conceive again with her own egg? By what standard shall we judge the size of the pain?
But if you ask, in my opinion it hurts incomparably more to lose an offspring.
All the other disappointments in life are temporary and one can get over them.
And by the way, Shatz"l, it would be interesting whether your considerations would be the same if it were your own offspring and an Arab surrogate mother.
Every ruling must also take such situations into account, which certainly happen in hospitals abroad.
To Ima—greetings,
You raised an excellent question. According to the method among the decisors that the pregnant woman who gives birth is the halakhic mother, the son of a gentile woman is a complete gentile and is not considered the “offspring” of the Jewish sperm donor.
By contrast, according to the method that the genetic mother is the halakhic mother, the child is considered Jewish and must be raised in a home of Jews who observe the commandments. Here the sheikh will help us by explaining to the Arab birth-mother that a child whose father is Jewish is considered, according to Islam, Jewish 🙂
And again, in order not to enter into these embarrassing dilemmas, it is important to ensure that surrogacy or egg donation is done under the supervision of a qualified institute.
With a blessing for success at the Puah Institute, Shefatyahu Shahada Hafaroni
The first approach is unclear. Is a frozen embryo of a Jewish couple that needs to use a gentile surrogate a gentile? Does it require conversion?
And perhaps according to this approach a baby nursed by a gentile wet nurse also becomes a gentile. After all, he lives and grows thanks to her and receives quite a bit from her body.
What is unclear? A Jew is one who is born to a Jewish mother or who converted according to halakhah.
With blessings, Yfa"or
Born to…
and not born by…
On the question of attributing the child to the genetic mother or to the woman who gave birth, see also Wikipedia, entry “Surrogacy,” in the chapter on the halakhic aspects, and the sources cited in notes 6–8.
With blessings, Yfa"or
So in essence the title of the column is “What Is Parenthood,” but the central question is not what parenthood is?
With all due respect, your analysis is not convincing at all.
You did not produce some amazing analysis that had never been done before.
You simply explained what everyone understands: that there is genetics (which is something obvious that even the primitives in the Talmud knew…) and on the other hand there is the mother who actually gives birth.
And then you proved it with your intuition.
My intuition is completely different—even in sperm donation it is hard for me to see the genetic father as a father.
And certainly when we are talking here about some egg, mere excrement, that was floating around in a lab. The fact that it was extracted from some woman is not really interesting.
Just as in blood donation or kidney donation, the recipient does not in any way belong to the donor.
And now that we have come to this, that the owner of the fertilized egg is the mother, by virtue of her being a partner in the “genetic material”—we must ask what the law would be if the egg were cloned and chromosomes originating from a man were implanted in it. Would the man who contributed the genetic material to the egg be considered the mother?
With blessings, Gadiel Shepsel Dolitzki the Digger
With God’s help, 9 Cheshvan 5783
Inspired by the commenter “Ackerman” (= “plower”), it occurred to me to pursue an analogy between the “fruit of the earth” and the “fruit of the womb.” With respect to the fruit of the earth, it seems that ownership of the fruit belongs first and foremost to the owner of the land. If the sower acted with the owner’s permission, he receives a share of the produce as a sharecropper, and if he acted without permission, he is entitled only to reimbursement of expenses and no more than the enhancement by which the land improved.
According to this analogy (which of course can be disputed), there is an inherent advantage to the mother who conceived and gave birth, since she is not only the owner of the “soil” in which the seed sprouted and became “orchard fruit,” but also the “farmer” who guards and tends the seed throughout the nine months during which she requires nutrition, care, and special caution lest the precious embryo in her womb be harmed.
With blessings, Gadiel Shd"h
Especially in our day, when people speak so much “about a woman’s right over her body” on the assumption that the embryo is “the thigh of its mother”—could it enter the mind that the mother who carried the pregnancy and gave birth would become an “involuntary surrogate” because of a mistake by a hospital employee?
If there could be a second part to this post, an analysis of the halakhic dispute—where does it stem from? What is at the root of the comparison to a pregnant woman who converted?
And also, what is the significance of genetic lineage in the Torah? (Why, for example, was Isaac also necessary if Abraham and Sarah are raising Hagar’s egg? What is the significance of “your seed,” “those who came forth from Jacob’s loins,” “our offspring and the offspring of our offspring,” priesthood, the Davidic dynasty, etc.)
And if the seeds are precious, rare, unique seeds, the result of the development of a special expert who labored for many years to develop them, and their produce will be one of a kind—no one else in the world has produce exactly like this.
Those seeds arrived by mistake to the owner of the land. They were switched with others. Or they were stolen or kidnapped.
Does the produce still belong to the landowner?
(And by the way, the process of producing embryos is a difficult process, full of suffering, which can last many years. And many times it does not even succeed. A situation may arise in which that same surrogate can conceive again, but that couple will not succeed in producing embryos again. What will you say then?)
To Ima—greetings,
In the analogy (fruit of the earth), it is clear that the fruits belong in principle only to the owner of the land, while the one who sows with permission receives a share as a sharecropper, and the one who sows without permission receives only reimbursement of expenses.
In the analogue (fruit of the womb), there is status not only for the owner of the field (called “mother”), but also for the owner of the seed, called “father,” and he is obligated to circumcise the son and teach him Torah, and by rabbinic enactment also to feed and support him.
One may say, therefore, that the couple whose seed was fertilized and became a fertilized egg are considered as the “father,” and upon them rests the pleasant duty of caring for the child’s support and education; and as is accepted today with a “father” and “mother” who do not live together, the child grows up with his mother, who gave birth to him, but maintains a parental bond with his father.
And here I suggest that the “father” is the man and his wife who gave him the “seed” in which there is the “genetic material”; in other words: the genetic mother is considered part of the “father.”
With blessings, Gadiel Shepsel Dolitzki the Digger
And see above as well in my first comment, “Parental Ownership or Custody?”
The basis for my proposal is in biblical language, where the newborn is defined as the father’s “seed” and the mother’s “fruit of the womb.”
Since according to science the genetic material is given by the man and the woman, both of whom together create the fertilized egg in which the “plan” is inscribed—it may be said that the “seed” is what we call a “fertilized egg,” and the father’s partner in creating it is “half a father.”
Thus in a normal situation the mother constitutes “a mother and half a father,” whereas in a situation of “egg donation,” the pregnant woman who gives birth is the “mother,” while the genetic mother is “half the father.”
With blessings, Dg"sh
Haha, you went far with that.
The woman’s seed is certainly not deprived in Scripture. See God’s words to Eve about the serpent; see the blessing of Rebecca’s brothers to Rebecca…
The woman’s part in the seeds planted in the ground is not a discovery of science. The term “fruit of the womb” in Scripture describes the additional privilege. The woman has both the ready seeds and the soil.
Presumably all the laws attributing offspring to the birth-mother are not because she is merely soil, but chiefly because of the certainty regarding her half of the seed that is found there.
With God’s help, 10 Cheshvan 5783
To Ima—greetings,
There is also “If a woman conceives seed and bears a male,” but in most appearances the “seed” is attributed to the father and the “fruit” to the mother.
This is the mother’s greatness. The father brings the “raw material,” and the mother develops it into a finished product. She receives something microscopic and produces a living human being.
And so the greatness of the woman is explained in the Gemara (Yevamot 62b–63a): the man brings home kernels of grain and the woman makes from the raw material a complete loaf; the man brings home tufts of wool and flax fibers, and the woman creates from them a complete garment.
Wisdom and understanding too are compared to “father” and “mother.” Wisdom lays down the principles, while “understanding” leads to “understanding one thing from another,” developing the principles into details and sub-details, and charting practical ways of implementing the principles.
Therefore the Written Torah is also called “the instruction of your father,” as it is the direct word of our Father in Heaven, while the Oral Torah is called “the teaching of your mother”—that is, the community of Israel, which develops, details, and applies God’s word in life.
Therefore there should not be competition and strife between the genetic mother and the birth-mother. There is a halakhic discussion regarding lineage and inheritance and the like, but it does not pertain to the mutual gratitude that ought to exist between the two mothers. The genetic mother should be grateful to the birth-mother for nurturing her “seed” into a real child, and the birth-mother should be grateful to the genetic mother for the raw material she gave her.
My initial logic would say that there should be joint custody by the two families. But in determining custody the primary consideration is the child’s best interest, and in my opinion that requires that a child not grow up from age 0 in the confusing reality of two families. Is a small child ready to contain such complexity? I doubt it…
And in the case before us, where the birth-mother too is challenged by fertility issues, and presumably she too underwent complicated treatments, after which she became pregnant in good faith and without knowing that she had received an egg not intended for her—it is preferable to leave in her possession the “fruit of her womb,” and to leave the creation of a relationship with the genetic mother for a later stage, when the birth-mother and her daughter are more ready to contain the complexity. Perhaps the bat mitzvah celebration would be a better opportunity for revealing the reality of the two families.
With blessings, Kaila’s Odelson
Sorry, I cannot agree with you.
If the surrogate mother had stolen the fertilized egg from the hospital, would you then return the baby to the parents? It is exactly the same if it was implanted in her body by mistake. There is no difference whatsoever.
The only question is the essential and halakhic one: who owns the embryo?
Gratitude and all the other background noise are not relevant at all.
With God’s help, 10 Cheshvan 5783
To Ima—greetings,
A child is not the “property” of his parents. Clearly the child is biologically connected to both mothers, and clearly he is obligated in gratitude toward both of them.
Even if we decide that he will grow up with one of them, it is important that at a stage when he is ready, he preserve a parental bond also with his second mother.
The child has two mothers, and he cannot be detached from either one. We only need to decide who will receive the primary custody and for whom a less intensive bond will be preserved.
Motherhood is first and foremost the ability to understand and love. To relate to another soul with love and patience. That is the teaching of motherhood.
With blessings, Kaila’s Odelson
Into the system of legal considerations one should also introduce the consideration of “market regulation,” which protects purchasers in good faith.
A person who in good faith purchased land from an authorized body that confirmed to him that this was “state land,” and built a house on it, and it later turned out to be private land—he will not be required to demolish his house, but rather to compensate the owner financially, so that an atmosphere of fear will not be created for good-faith buyers.
According to the same principle, even if we decide that the “ownership” of the fertilized egg belongs to the couple from whom it was taken, there should still be “market regulation” protection for one who in good faith received an “egg donation” from a hospital, and only once she was already pregnant, or all the more so after she gave birth, was the mistake discovered. The hospital will compensate the owners of the egg, but we will not obligate the mother, after she has already given birth, to hand over the child to whom she has become attached with a maternal bond.
With blessings, Yfa"or
It should also be noted that when the issue is custody, the legal-formal discussion is not the exclusive consideration. Considerable weight also belongs to the emotional aspect, and to the question where the child will receive better parenting.
In the Judgment of Solomon, had the discussion been purely legal-formal, the law would have dictated that the burden of proof rests on the one seeking to remove from the possessor. And yet Solomon gave the child to the one who showed self-sacrifice toward him.
With blessings, Yfa"or
From Solomon’s judgment one can learn that the surrogate’s refusal to return the child to the parents from whom he was created, to whom he resembles, whose other children are his siblings, whose parents are his grandparents, whose family members are his relatives—they are his most natural environment—and only by mistake was he taken from them, proves that the child’s absolute good is not what stands before her eyes and that she is not his mother.
So too all your other arguments can be made in reverse, including the emotion and empathy that you have appropriated here as though they do not also exist on the other side.
Good night.
You wrote in the post that the halakhic question is less interesting because it will in any case be derived from the philosophical discussion. The problem is that in the meantime what has been ruled confuses the issue. People cling to a certain halakhic ruling without really knowing what underlies it or whether it holds water. And that is a shame.
Even from what I have seen in the comments here, it seems there may be some thought that the embryo’s stay in another woman’s womb, Jewish or non-Jewish, “contaminates” it—to such an extent that perhaps they would not even ask for it back if it involved theft, fraud, and the like. Or perhaps they think that after 40 days a soul was given to it that is fit for that surrogate… the devil knows what goes through people’s heads.
With God’s help, 13 Cheshvan 5783
Regarding the emotional bond of the owners of the fertilized egg: that is true with regard to an egg clearly designated for implantation in the womb of a surrogate who would conceive and give birth for them.
However, in the process, surplus fertilized eggs are often created, and their providers must decide whether they will be destroyed, given to whoever wants them, or kept in reserve for future need. In such cases it is difficult to speak of a “parental bond” to the egg.
Therefore, even if in the future an embryo or child is found whose genetic material matches that of the lost egg, it will still be difficult to determine whether this was an egg intended for surrogacy or eggs belonging to the surplus of that same “production line.”
With blessings, Yfa"or
Additional information on the halakhic and legal treatment of the subject may be found in Prof. Avishalom Westreich’s article, “The Assuta Fertility Mix-Up Floats the Halakhic Discussion on Surrogate Parenthood,” on the Makor Rishon website.
With God’s help, 13 Cheshvan 5783
As I mentioned, Scripture generally speaks of the father’s seed and the mother’s fruit of the womb.
In the statements said regarding Eve (“and I will put enmity between your seed and her seed”), Hagar (“I will greatly multiply your seed”), and Rebecca (“and your seed shall possess the gate of his enemies”)—they are a promise for generations, not only for direct children, and therefore it is not appropriate to call them “the fruit of your womb” but rather “your seed.”
With blessings, Dg"sh
What insistence on neutralizing the genetic mother, to the point of distorting the Torah. Is this chauvinism? Or objectification of women?
It is interesting what things you did not raise here, because this time I am not buying any of the strange arguments you did raise.
And further on this issue: Rabbi Mordechai Halperin, “Biological Parenthood and Genetic Parenthood,” on the Da’at website, especially notes 28–29; Rabbi Yehoshua ben Meir, “Legal Parenthood and Genetic Parenthood,” on the Schlesinger Institute website.
With blessings, Yfa"or
What, in your view, makes a person a “father” to a day-old baby? Intercourse? Supporting the mother during pregnancy? Desire? Expectation? Or in your view does the baby have no father at all?
None of these. Genetics.
With God’s help, 11 Cheshvan 5783
To Rabbi Abraham—greetings,
And when it says “a father of a multitude of nations,” is that genetics? And when Elisha says “My father, my father, the chariot of Israel and its horsemen,” is that genetics? And when the Sages expounded “and you shall teach them diligently to your children”—these are the students—is that genetics?
With blessings, Accusativus Genitivus Dativus
The question was addressed to “Shimon ben Yosef,” who said that in his opinion a sperm donor is not a father.
I of course agree that genetics is the basis for determining father and mother.
Indeed, in Eve (“For God has appointed me another seed”) and in Hannah (“and You will give Your handmaid seed of men”), and there it is speaking of a direct son. Perhaps the offspring is called both “fruit,” as a complete person, and “seed,” because of his capacity to produce continuing fruit for generations.
With blessings, Dg"sh
And even regarding the mother there is complexity: a physiological “parental,” “birth-giving” role, and an educational role—“to my mother’s house you shall teach me.” Likewise, in tannaitic language from Temple times, a sage was called “Abba” (for example, “Abba Shaul”) and wisdom “Imma” (for example, “Imma Shalom”).
Rabbi Judah the Patriarch also says (in the Mekhilta on the verse “Honor your father and your mother”) that a son tends to honor his mother, who “coaxes him with words,” and fear his father, who “teaches him Torah”; therefore Scripture put the father first regarding honor and the mother first regarding fear, to teach us that they are equal.
With blessings, Dg"sh
It is worth noting that the simple meaning of “horati” is from the language of pregnancy—“the one who conceived me.” Likewise “rechem” (womb) is connected to “rachamim” (compassion): the self-sacrifice of the pregnant woman and the birth-mother, who envelops her embryo and later her baby with love and warmth, instilling in the child, consciously and unconsciously, the qualities of love and devotion. Perhaps for that reason the state of Jewishness passes through the “Yiddishe mama.”
With God’s help, 14 Cheshvan 5783 (the day of remembrance of Grandpa Eliezer son of Rabbi Meir Wrocławski)
The “intellectual helplessness” in deciding between the “genetic mother,” who contributed (with the father) the genetic material, and the “physiological mother,” who conceived and gave birth, is inherent. Therefore, in every legal system that is called upon to decide between the two, there will be opinions this way and that—so it is in Jewish law and so it is in Israeli law, as described in the articles to which I referred.
And here the son asks: why decide at all? The mother’s traditional role—genetic contribution, pregnancy, and childbirth—was here performed by two women, each of whose contribution to the process is critical and cannot be ignored.
I will give an example. My mother-in-law, Chaya Yaakovovitz (daughter of Moshe and Penina Volkovitz), of blessed memory, was left in the Holocaust at age four orphaned of both her parents. A young woman named Chana Devora Volbrom (later: Wrocławski) adopted her in the labor camp (at personal risk), and by miracles of miracles managed to keep the girl alive. So from the perspective of Chaya, of blessed memory, and of her descendants, may they live long, are Grandma Chana and Grandpa Eliezer any less “grandparents” than the biological grandparents?
If there are three partners in a person—can there not be four and five?
With blessings, Sh. Tz. Levinger
On the contrary, let the girl be raised by her biological parents, who will surely maintain a warm and good relationship over time with the surrogate mother, who also wants what is absolutely best for her and will fully cooperate with such a considered decision.
And redemption will come to Zion.
To Ima—greetings,
But here both of them—the genetic mother and the physiological mother—are “biological.” For a “biological mother” in the original sense both gives the genetic material, conceives, and gives birth. Here the “biological mother” split into two women who complement one another in the biological role.
The term “surrogate mother” has no connection to the situation we are speaking about. A “surrogate” is a physiological mother who undertook in advance to hand over the “fruit of her womb” after birth. Here the physiological mother entered pregnancy in absolute certainty that she was conceiving and giving birth for herself, and we are asking to turn her retroactively and against her will into a “surrogate.”
For discussions in Jewish law, I referred to quite a few articles. Regarding Israeli law, I found the article by Adi Niv-Yagoda and Roy Zilber, “The Embryo-Switch Affair—Should the Law Prefer Genetic or Physiological Parenthood?”, in the online journal Iyunei Mishpat, and “Give to the wise and he will become wiser still.”
With blessings, Yaron Fischl Ordner
As for the biblical discussion, I thank you for drawing my attention to the fact that the offspring is not only the “fruit of her womb” but also her “seed.” The two aspects of motherhood are perhaps hinted at in the expression in Proverbs, “Let your father and your mother be glad, and let her who bore you rejoice,” and in Song of Songs: “To my mother’s house and to the chamber of her who conceived me.” Perhaps Solomon in his wisdom and holy spirit already foresaw the possibility of splitting the maternal roles between “your mother” and “her who bore you,” and between “my mother” and “her who conceived me.”
Again: in your assumptions and fantasies you are distorting biblical verses that refer only to one mother—the one within whom the genetic material is found. And you are doing so dishonestly. It is not fitting for someone as knowledgeable as you.
The very fact that today a womb can also be lent or rented teaches that one should not attribute excessive importance to that organ. If we are comparing to organ donation, it is more reasonable to see the surrogate’s womb as an organ donation to the genetic mother, not the reverse. The surrogate’s pregnancy is like any other medical procedure. And as with any medical error (I know a person who came out paralyzed and disabled from a simple operation), here too one can compensate the surrogate for the mistake.
Halakhah, if it sees fit, can take precautionary measures and safety margins regarding the halakhic status of the surrogate mother, mainly for the opposite case of mistaken identification. But that does not weaken by a hairsbreadth the status of the genetic mother and her absolute right to raise her child.
And now it occurs to me—presumably someone has already thought of this—that according to your view, what would happen if in the future it becomes possible to transplant a womb, and the donor’s womb is transplanted into the body of the genetic mother? Who then would be the mother? Or—if the surrogate had a transplanted womb from another woman? Perhaps there would be three mothers?
To your question: in a biological mother there are two aspects—genetic, that the offspring is “her seed”; and physiological, that the offspring is “the fruit of her womb.”
A womb donor, like a kidney donor or a heart donor—the moment the transplanted organ is absorbed into the recipient’s body, it becomes an inseparable part of it.
With blessings, Yfa"or
And I ask you, according to your approach: the owner of a fertilized egg in which “cloning” was done and chromosomes or parts of chromosomes of a third person were injected—who would be considered the “mother”?
With blessings, Noach Gamliel Aryeh from Motzkin, Shibotovsky
In my humble opinion, even a fertilized egg of a mother into which foreign genetic information was implanted remains the mother’s “seed.” The question is according to your approach, where everything depends on the genetic contribution, and here there is no genetic identity between the egg and the mother.
With blessings, Nagm"sh
The womb is an organ like any other organ. Therefore there is no room for the romantic depictions and emotional metaphors that you keep quoting and attaching to it and to the woman who bears it with regard to the question of ownership of the fertilized egg. A fertilized egg is an element that needs that organ in order to grow in it and emerge from it.
I do not know what will become of a cloned egg, but certainly one should not infer from that that the genetic mother is not the owner of her uncloned egg.
That was an answer to your question, Shibotovsky. For some reason it jumped downward.
To Shibotovsky, there is nowhere to reply above. In my humble opinion, if theoretically a mother were to provide only an “egg shell,” in order for a complete genetic payload of another mother to be implanted into it, the offspring would belong to the mother who owns the genetic material.
So too in the present case, the womb is only a vessel.
And since there is no longer any place to respond—we have almost cloned this post—I will stop here.
And if chromosomes from a man’s cell are implanted into a woman’s egg, would he, according to your view, be considered the “mother”?
With blessings, Ng"a from Motzkin-Shibotovsky
And another question: if a fertilized egg taken from a mother was not used and was intended for destruction, and by mistake was implanted in the womb of a woman who conceived and gave birth—would the owner of the egg claim motherhood even in that case?
With blessings, Nagm"sh
And a third question (for dessert): what is the law regarding an egg that contained the mother’s genetic material, but before or after implantation in the pregnant woman’s womb, a mutation occurred such that the embryo/fetus is no longer genetically identical to the mother?
With blessings, Nagm"sh
I suggested that “hora” means the mother who carries the pregnancy, but one can also say that the “hora” is the mother who inseminates, who creates the fertilized egg, just as “hora gever” means “he inseminated,” he caused pregnancy.
With blessings, Dg"sh
Hello Rabbi,
Questions and thoughts.
If we set aside (for purposes of discussion) the obligation of the pregnant mother (I prefer this term over “the surrogate,” since the term itself already carries a note of decision, unlike the factual description) not to abort the baby/embryo voluntarily, then according to your approach, as an involuntary surrogate, does she have the right to refuse in a situation where a complex operation that endangers her life would have to be performed? Had she known in advance that she would have to hand over the baby once it came into the world, would there have been any justification to take the risk? It may be that the possible answer is “up to the limit of risk to her own life,” but the reason I mention this is that if things had been “by the book,” the genetic mother might have been willing to endanger her own life or would have set a different threshold of risk with respect to her future child—a matter not under her control when the pregnancy takes place in another body.
Likewise, in the absence of a contractual relationship between the genetic mother and the pregnant mother (which does exist between a genetic mother and a surrogate)—is the pregnant mother obligated to fulfill the wishes of the genetic parents? For example, if the genetic mother herself were pregnant, she would feed the fruit of her womb only vegan food because that is her ideology. By contrast, the pregnant mother is not subject to such ideals. Is there room for the genetic mother to intervene in the pregnant mother’s life and demand this, or is this a kind of proprietary right that is formed only after the baby comes out?
And regarding the analogy to copyright, copyright law too recognizes changes made to an existing work. One example is a “derivative work,” which comes out of the original work (for example, a television series based on a book). The copyright owner is the original creator and has the right to permit another, but that other person, once he has created a derivative work, owns the rights to the addition.
Alongside that there is “transformative use,” which takes the original expression and makes use of it in a way that adds to / changes the nature of the original expression (as can be seen, for example, in parodies or subversive works of art). This could be the analogy to the state of affairs in the present story, and in the absence of a contractual regime (voluntarily relinquishing the fruit of the womb), the pregnant mother also shapes the embryo (as distinct from merely being a vessel, where she has no obligation toward the genetic parents).
Thank you!
I do not understand the connection to our discussion. The pregnant mother owes nothing to the genetic mother. She is obligated not to harm the life of the embryo, like with any other person. The right to refuse surgery under justified circumstances is reserved to any woman who enters danger because of the embryo, regardless of genetics. And if the circumstances are not justified, no one has that right.
With God’s help, on the eve of the holy Sabbath of Akudim, Nekudim, and Berudim, 5783
Yesterday we were informed on Arutz 7 that “for the first time in the world, researchers from Hadassah succeeded in developing male and female cells from one person.”
The question therefore arises: what would the law be in a case where both the sperm and the egg are taken from one man or from one woman? Would he/she be considered both “mother” and “father” together?
With blessings, Noach Gamliel Aryeh from Motzkin-Shibotovsky
And according to what researchers have found—that an intense emotional experience may affect genetic material and cause a mutation (as perhaps the setting up of the peeled rods affected the flock)—the question arises: would the one who caused the genetic change by creating the emotional stimulus have parental status?
With wishes for a peaceful Sabbath, Nagm"sh
More precisely, it is not a “mutation” that changes the DNA, but pathways that affect the regulation of the information in the DNA without changing it. See Wikipedia, entry “Epigenetics,” and the article by Yael (Freund) Abraham, “Did Worms Prove That Fears and Nightmares Pass Down Through Generations?” on the Makor Rishon website.
With blessings, Nagm"sh
The Supreme Court: parenthood may not be recognized in surrogacy with no genetic connection
The court ruled that a woman who asked to be recognized as the parent of her children, who were born from sperm and egg donation with the help of a surrogate, may petition through adoption proceedings—but in future cases this will not be possible. The justices called to regulate the matter by law
With God’s help, 11 Tevet 5783
A comprehensive survey of the various approaches in halakhah and Israeli law appears in Rabbi Prof. Yitzhak Cohen’s article, “The Embryo Mishap—the Central Dilemmas,” on the Arutz 7 website, 10 Tevet 5783.
With blessings, Yfa"or
The analysis is convincing. I only wonder whether, since there are no living parents before us who are justly claiming ownership of their child, one should act here beyond the letter of the law, and as an act of kindness toward the surrogate parents, not to go looking forcefully for the biological parents (perhaps they have already had children from other embryos. Perhaps they no longer want any, perhaps if they knew they would yield to the ‘adopting’ parents, that is, the surrogates). To be sure, beyond the reasons you mentioned, the hospital certainly deserves to have imposed on it the whole mess involved in a general clarification of all the children who were born and all the embryos. With all that this implies, including an obligation to compensate for the mistakes that were made. The other side of the matter is kindness toward people struggling with infertility, both among those who have already conceived and those who deposited embryos, and to forgo the matter beyond the letter of the law. In fact, the current baby at the center of the dispute is already less suited to her name, since at the moment there is no clear dispute. There are no parents here claiming their right to her. Unlike in the case of Caroline Bruna, for those who remember, an earlier child of contention who was taken from her biological mother and adopted without the adoptive parents knowing that the matter was improper. There the Supreme Court decided, entirely rightly, to tear the girl from the arms of her adoptive parents, the only parents she had known and become accustomed to, in order to return her to the arms of her biological mother. But here there is no dispute, not at the moment. The question is whether to make an effort to create one.