Jewish Single Woman Considering Embryo Adoption: Halakhic Clarification on Child’s Jewish Status

QUESTION


Washington, DC

A Jewish single woman considering embryo adoption wants to know if she needs to look for Jewish embryos, or if it will be sufficient for her to be the gestational mother to have the child be considered Jewish. My understanding is that there are differing opinions, and because so much is at stake I would like to be crystal clear on the halakha. Thank you so much.

ANSWER

This is such a major debate in the poskim with opinions moving back and forth over the recent decades that this has been being discussed. My personal strong inclination is to think that it should go by the gestational mother, because halakha looks at what is visible/real world perception and there is no question that the woman carrying and birthing the baby is the one whose identity as the mother is visible and who is societally identified as the mother.

Another way of saying this is that the Gemara only talks about being pregnant and birthing in its discussions of motherhood. The most you get in terms of conception as identity is הורתו שלא בקדושה ולידתו בקדושה when a woman converts after conception (Yevamot 97b, Bava Batra 149a, Sanhedrin 58a). However, the Gemara there is dealing with the question of the status of the fetus; there is no question about who the mother is.

As to the fact that some might find it hard to assign motherhood without biological connection – it is worth noting that the environment of the womb does affect the expression of the genes (see here – https://www.santamonicafertility.com/premium-surrogacy/blog/surrogacy-epigenetics-does-a-surrogate-share-dna-with-the-baby/).

It is also quite important to note that, as distinct from other areas of halakha, there is no psak here that is “the best.” In cases of surrogacy, the “desired” psak would be that the one contributing the egg is the mother. In cases of an egg donor, the “desired” psak would be that the one carrying the baby is the mother.

The bottom line in this is an area of major debate, and seems likely it will remain unresolved. Thus, despite what I wrote above regarding my strong inclination, I feel that in cases as consequential as this – מי אני להכניס ראשי בן ההרים – who am I to involve myself in the discussion of great gedolim . And regardless, it is unwise to adopt one position, as others may question the child’s Jewishness. Therefore, I would advise doing a giyur li’chumra in either case.

The downside, of course, is that if the child is a girl, this could create problems if she wants to marry a kohen later in life. At such a time, a rabbi could rule that the giyur was not necessary, and she is not a giyoret, but once a giyur was done, things might be more complicated.

If someone who received the egg from an egg donor were to come to me, and if her having been given the egg was not known and thus there would be no concern that others might question the Jewishness of their child then I would probably advise them to do a giyur li’chumra and not tell anyone. This way, she is definitely Jewish – to play it safe for the other position – and as far as giyoret/kohen is concerned – I would feel comfortable having them rely on the psak that it goes by the gestational mother.

One final note – if it is a boy, then due to the safek gerut, the brit would not be on Shabbat, even if he was born on Shabbat. (See Nishmat Avraham EH 5, pg. 162)

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