Ovum donation, homograft of an ovary and gestational surrogacy:
Who is the legal mother in Jewish law?
Ovum donation, ovarian transplantation and gestational surrogacy are part of Assisted Reproductive Technology (ART), as well as part of the process of third party reproduction.
1. Ovum donation[1] [2] is the process by which a woman provides one or several eggs for purposes of assisted reproduction to another woman. It involves the process of in-vitro fertilization (IVF) as the eggs are fertilized in the laboratory. Ovum donation and embryo transfer has given many infertile women a mechanism to become pregnant and give birth to a child that will be their biological child, but not their genetic child. Some of the medical indications for ovum donation are:
o Congenital absence of eggs: Turner syndrome; Swyer syndrome; gonadal dysgenesis.
o Acquired reduced egg quantity or quality: S/P oophorectomy; premature menopause; S/P chemotherapy or radiation therapy; advanced maternal age; and compromised ovarian reserve.
The first ovum-donation-produced human birth was reported on February 1984.[3]
2. Homograft[4] of an ovary is a transplant of an ovary between two women.[5]
Birth after ovary transplants between monozygotic twin siblings was reported several times in the last decade.[6]
A birth after complete surgical removal of both ovaries and a subsequent ovary transplants between women with different genotype, was reported in the medical literature once, a century ago, in the beginning of the 20th century.[7] Nevertheless, most physicians doubted the veracity of that case.[8]
3. Gestational surrogacy is an arrangement in which a woman carries and delivers a child for another couple, where she has no genetic relationship to the embryo transferred to her uterus. Treatment follows routine IVF procedures for the commissioning mother, with the transfer of fresh or frozen (thawed) embryos to the surrogate host.
The indications for treatment include absent or defected uterus, recurrent miscarriage, repeated failure of IVF and medical conditions where pregnancy is contraindicated.
The first gestational surrogate pregnancy took place in 1985.[9]
General
considerations
Familial relationships, legal vs. biological[10]
The view of the ancient Roman law is that familial relationships are legal relationships. Being a biological parent does not necessarily legally endow the rights usually associated with parenthood, and conversely, one may not necessarily be biologically related to a child and still be considered in the law as the parent of this child.
The view of the Jewish Law is that familial relationships are biological relationships. Every child has biological parents. Therefore an entity of “illegal child” does not exist. In general, being a biological parent does endow the rights usually associated with parenthood, and conversely, only biologically related to a child will be considered by the Jewish law as the legal parent of this child.
Fundamental distinction between paternity and maternity
There is a fundamental distinction between biologic paternity and biologic maternity. While paternity is based on the genetic and only on the genetic function, maternity normally includes two functions:
I. A genetic function - production of oocytes and ovulation.
II. A physiologic function - nine months of pregnancy and parturition.
The technology of IVF with ovum donation or surrogacy, made it possible to break up and divide these two functions between two women. If the 1906 Morris report is reliable, such a break occurred a century ago.
The donation of an oocyte raises two halachic questions: the legal determination of motherhood, and the religious attitude towards the procedure. The discussion here will be limited to the first.
Maternity determination - four alternatives
The fundamental question is who, according to halacha, is the mother when the two biological functions had been broken up and divided between two women. Four alternatives should be considered: o The halachic mother is only the genetic mother. o The halachic mother is only the physiological (surrogate) mother.
o No one is the legal mother.
o Both are legal mothers.
[The possibility of two legal mothers for one child need not be related only to the halachic rules of ovum donation, surrogacy or ovary transplant. There can be two genetic mothers where two fertilized oocytes from two different women were joined, and the resulting chimera combines genetic components of both genetic mothers.]
In 1908, R. Binyamin Arye Weiss wrote a very interesting responsum regarding ovary
transplantation.[12] He described the case as “a cluster of eggs” (“shalal shel beitzim”) removed from a fertile woman that had been grafted into the body of an infertile woman. Even though R. Weiss doubts if this procedure has really occurred, nevertheless he deals with the halachic status of such offspring. He
concluded that the halachic mother of that offspring would be the organ recipient. R. Weiss brings proof for his position from the Babylonian Talmud, Sotah 43b: A branch of an orlah tree, which is less than three years old and its fruit are forbidden to use, was grafted onto an older tree, whose fruits are permitted. The Talmud concludes that according to the halacha, the branch becomes an integral part of the receiving tree and loses its original identity. R. Weiss concluded that in the Morris case too, the transplanted ovary would lose its identity and become an integral part of the recipient’s body. The recipient would therefore be considered the sole halachic mother.
The genetic similarity between the Morris case of ovary transplant and the Talmudic case of orlah graft is amazing. In both cases, even though the fruits are genetically related to the donor, legally they are related to the recipient. The only difference is that the Morris case deals with human creatures while the Talmudic orlah case deals with plants.
R. Waldenberg12 accepted R. Weiss proof that the halachic maternal identity is the physiologic one in all three cases of third party reproduction. On the other hand, R. Sh. Z. Auerbach13 did not agree with the comparison of human to plants.
Among present day halachists, there is a long debate. Twenty years ago, most Jewish scholars tended to accept the physiologic-birth-mother as the only legal mother,14 and only the minority did not reach a definite conclusion15 or tended to regard the genetic mother as the only legal mother for all intents and purposes.16
Nevertheless, nowadays the halachic trend was changed, as most great halachists accept or tend to accept the genetic mother as the legal mother.17
Rabbi Avigdor Nebentzhal expressed himself as follows:
My opinion is that the egg donor is the only legal mother, and the surrogate is not more than incubator. Just imagine: if a dog’s embryo will be born after being implanted into a Jewish female, should we circumcise him on the 8th day and pray: “.. and his mother should rejoice her fruit of the womb”?!18
The late Rabbi Meir Bransdorfer19 brings, as a proof, the known paragraph from Niddah, 31a, where it is clear that halachic maternity includes a genetic function:20
Our Rabbis taught: There are three partners in man, the Holy One, blessed be He, his father and his mother.
His father supplies the semen of the white substance out of which are formed the child's bones, sinews, nails, the brain in his head and the white in his eye;
His mother supplies the semen of the red substance out of which is formed his skin, flesh, hair, (blood) and the black of his eye;
And the Holy One, blessed be He, gives him the spirit and the breath, beauty of features, eyesight, the power of hearing and the ability to speak and to walk, understanding and discernment.
When his time to depart from the world approaches the Holy One, blessed be He, takes away his share and leaves the shares of his father and his mother with them.
Concluding remarks
I. The possibility for two women to share the mother's functions,
caused a real controversy among present halachists, as discussed above.
II.
The practical advice
therefore is to follow the ruling of the late R. Sh. Z. Auerbach and of R. Y.
Sh. Elyashiv. They both agreed that there is no certain proof in the matter, so
we must act strictly as in cases of doubt. The offspring therefore is
prohibited from marrying close relatives of either woman.
III. If one of these 'mothers' is a gentile, a procedure of child
conversion has to be followed because of the doubt.21
* This article is based on a lecture given at the Jewish Community of Copenhagen's 4th International Congress of Medicine, Ethics and Jewish Law (Jan. 8-10, 2011).
[3] Blakeslee, Sandra, "Infertile Woman Has Baby through Embryo Transfer". The New York Times online, Feb. 4, 1984: http://query.nytimes.com/gst/fullpage.html?sec=health&res=9404EE DC143BF937A35751C0A962948260
[4] Homograft: a tissue graft obtained from an organism of the same species as the recipient. Collins English Dictionary — Complete and Unabridged. HarperCollins Publishers, 2003.
[5] See: Randerson, James. Woman to give birth after first ovary transplant pregnancy. The Guardian, November 9, 2008. http://www.guardian.co.uk/science/2008/nov/09/health
[6] See: Silber S, Kagawa N, Kuwayama M, Gosden R, Duration of fertility after fresh and frozen ovary transplantation. Fertil Steril. (Nov 2010) 94(6):2191-6.
[7] Morris, RT, A Case of Heteroplastic Ovarian Grafting Followed by Pregnancy and the Birth of a Living Child, Medical Record 69:18 (May 5, 1906), 697. See also: Reichman, E, The Halakhic Chapter of Ovarian Transplantation, Tradition, 1998; 31(1):31-70.
[8] See: Reichman, E. ibid.
[10] See also: Steiner, Eva, The Tensions between Legal, Biological and Social Conceptions of Parenthood in English Law, Report to the XVIIth International Congress of Comparative Law, July 2006, Electronic Journal of Comparative Law, vol. 10.3 (December 2006), http://www.ejcl.org
[11] See: Reichman, E. ibid; Ryzman, Zvi, Ovary transplantation (Heb.) Yeshurun 21. pp. 565-582 (New York, 2009); M. Halperin, “Trumat Chomer Geneti biTipulay Poriyut,” in the 2nd International Colloquium: Refuah, Etika v’Halacha (Schlesinger Institue, Jerusalem, 1996), 321-327, (Heb.)
[12] Vayelaket Yosef, (Editor: Yosef Schwartz). Year 10, vol. 9, no. 77 (1908); Responsa Even Yekara, vol. III (1913), n. 29. See also Reichman, E. ibid.