Q&A: Following the Assuta IVF Affair
Following the Assuta IVF Affair
Question
The Assuta IVF mix-up raises questions on the social, ethical, and medical levels. But a no less central question that the courts will soon have to address is: who are the parents of the baby expected to be born? Is the woman carrying the fetus, even though she does not possess its genetic material, its mother, and would her partner be its father? Or is the baby the child of the woman and her partner who possess its genetic material—in other words, the ones who created the embryo?
What is your view on this question from the ethical and halakhic perspective?
Answer
I do not know exactly what happened there. If we are talking about an egg and sperm from another couple that were grown in this woman’s womb, then this is no different from any sperm or egg donation. Halakhic decisors have discussed this at length. I do not see any special situation here. Of course, the woman’s husband cannot be the father in such a case, but as for the mother, this is like sperm or egg donation.
See an overview here: https://www.tzohar.org.il/?p=511
Discussion on Answer
That is not connected to the question of who ought to be the mother, but who the mother is. If it is clear who the biological mother is, then she is the mother.
“Biological mother.” The gestational mother is also “biological.” That is part of the biology of the fetus.
The main question in my view, morally speaking, is דווקא who ought to be his mother, since that decision carries the greatest weight regarding what should actually be done with the baby who will be born. I tend to think it should be framed in terms of one wrong versus another wrong, and it seems to me that if the baby is taken from the birth mother, the wrong will be greater. Therefore I would “vote” to leave him with her (that is, admittedly before I’ve dived into the small but important details).
Not true. The gestational mother is not part of the biology of the fetus. She is a womb or an incubator.
Technically, you are right. My claim was that the technical aspect here is less significant. Perhaps you are arguing this on the basis of a formalist rationale—that first we should define in the abstract what a “mother” is, and then derive from that what ought to be done (because “mother” takes precedence over someone who technically is not such). I do not think that is the right way to look at this case. Of course, one has to take into account what future legal consequences such a ruling or the opposite one would have. Maybe I will change my mind if I am convinced that a precedent in the direction I support would cause great harm in other cases.
Morally, this really is not a simple question. Seemingly, the one who labored is the gestational mother. But halakhically and legally, it seems clear to me that the biological mother should raise her. Also in property law, the egg and sperm belong to the biological parents. Practically as well, I think there is no choice but to hand her over to the biological mother, also because of problems that could arise (for example, that she might one day marry one of her relatives).
Beyond that, once the biological mother raises her, she too will labor over her enough, and in any case will be entitled to be her mother.
And for a moment, leaving Jewish law aside, what do you think about it? Who ought to be the mother? And according to Jewish law, what do you think?