Surrogacy is an arrangement in which a woman agrees to carry a baby to term on behalf of another couple, either by incubating a fetus that has no genetic relationship with the surrogate, namely by using both donor eggs and sperm (gestational surrogacy), or by using the surrogate’s own egg with a donor sperm, also known as traditional surrogacy. Typically surrogacy is pursued because a couple is struggling with infertility or because it would be dangerous for the woman to carry the baby herself. According to the U.S. Centers for Disease Control, between 1999 and 2013, 18,400 infants were born using gestational carriers.
Judaism is emphatically pro-natalist, regarding procreation as a biblical commandment. Many Jewish authorities are therefore in favor of surrogacy as an option for couples that would otherwise be unable to conceive children on their own. However, the practice poses several complex challenges in Jewish law.
Is Surrogacy Allowed?
Given the importance of child bearing in Jewish tradition, Jewish authorities are generally inclined to permit assisted reproduction technologies, including in-vitro fertilization (IVF) and artificial insemination. Having children with another woman when a wife is having trouble conceiving is firmly established in the biblical tradition: See the examples of Abraham fathering Ishmael through his wife’s servant Hagar, and Jacob having children with his wives’ handmaids, Bilhah and Zilpah. Gestational surgery, however, has only been technically feasible for a few decades, the first successful one occurring in 1985.
Some of the objections lodged against surrogacy have been moral rather than strictly legal. Critics of the practice, particularly in its early years, believed it degraded motherhood and reproductive labor, and reduced children to a commodity. “To use another person as an incubator and then take from her the child she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity,” Immanuel Jakobovits, the former chief rabbi of the United Kingdom, wrote in 1975 with respect to gestational surrogacy.
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Other concerns are more grounded in Jewish law. One possible issue with surrogacy is the biblical prohibition known as oshek, or exploitation. This is commonly understood as a prohibition on the withholding of wages, but some extend it to any business arrangement that takes advantage of the powerless. Given that gestational surrogacy is expensive — some estimates top $200,000 in the United States — and that surrogate mothers in many parts of the world tend to be of lower income, some see the practice as an act of exploitation of the poor by the rich.
Another concern is risk. Judaism requires the protection of human health and the avoidance of undue risk, and pregnancy is a risky endeavor. Though maternal mortality rates are low in advanced countries, they are greater than zero, and other complications of pregnancy are far more prevalent, some of which have long-term health consequences. It’s one thing for a woman to assume such risks to bring her own child into the world and help fulfill the commandment of procreation, but some Jewish critics of surrogacy believe it to be religiously problematic for other women to assume those same risks.
Other potentially problematic issues concern the enforceability of surrogate contracts, the challenge of artificial insemination without running afoul of the prohibition on wasting seed, whether the child could be considered a mamzer if the surrogate is married to another man, and more. For all these reasons, rabbinic authorities from across the denominational spectrum have been deeply uncomfortable with surrogacy, and sometimes fiercely opposed it.
Nonetheless, as surrogacy has grown more common, rabbinic opinion has broadly come to endorse it, though the technical particulars continue to be a matter of dispute. Rabbi Zalman Nechemia Goldberg, a leading Israeli authority, permitted gestational surrogacy provided the surrogate is both Jewish and single, ensuring the child was Jewish and no issues of illegitimacy would surface. Rabbi Mordechai Tendler, a leading American authority, came to the opposite conclusion. His ruling that the carrier should ideally be unmarried and not Jewish is rooted in several concerns, including that if the Jewish surrogate is married, carrying another man’s child may run afoul of the prohibition on forbidden sexual unions; the fear of a Jewish woman gestating several children who might be deemed halachic relatives and may unwittingly marry each other in the future; and the prohibition on self-injury (which pregnancy arguably is and which applies only to Jews).
In 1997, the question came before the Conservative movement’s legal authorities, who endorsed two papers on the subject. One paper determined that while the legal concerns about surrogacy are real, both gestational and ovum surrogacy are religiously permissible. The other paper concluded that surrogacy is not recommended and should be allowed only in exceptional circumstances.
Determining Motherhood
Assuming gestational surrogacy is permissible, another question arises: Who is the child’s mother? This matters because a child is only born Jewish if their mother is Jewish. If the woman who donates the egg is Jewish but the woman who carries the baby to term is not (or vice versa), it’s not clear whether the child is automatically Jewish or should convert to become Jewish. The motherhood question also has bearing on who the child could marry (not other children of the same mother), whether the child is considered illegitimate if the surrogate is married to another man, and the transmission of priestly status if the surrogate mother is not-Jewish. For these reasons, determining halachic (Jewish legal) maternity is of paramount importance.
Separating gestation and conception has only recently been possible, so there are no clear precedents in ancient Jewish sources, and indeed there are prooftexts that can be read to support both sides of this question. The Talmud (Yevamot 42a) states that if a couple converted to Judaism, they are required to separate for three months to ensure the woman is not pregnant. One reason offered for this is that there’s a difference between a child conceived by non-Jewish parents (pre-conversion) and Jewish parents (post-conversion), which would suggest that a child’s maternity is determined at conception. However, another talmudic teaching suggests precisely the opposite: Yevamot 78a states that if a woman converts during pregnancy, her child does not require immersion in a mikveh to be considered Jewish, which suggests that perhaps gestation, not conception, determines maternity.
Rabbinic authorities have come down on both sides of this question. But given the uncertainty and the conflicting signals from Jewish sources, a third option has been proposed — that both women be considered the mother. Practically speaking, this means that if either the egg donor or the carrier are not Jewish, the child would not be considered Jewish either and would have to convert to become Jewish. Similarly, the child would be barred from marrying the other children of both women.
