New York – Rabbis: Fertility Egg Donor Determines Child’s Religion

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    New York – What does a Jewish child need most from a mother? Forget about the chicken soup—it’s all about the eggs, say a growing number of prominent rabbis. Several recent rabbinic rulings on fertility treatment dictate that a child conceived in vitro is Jewish only if the egg came from a Jewish woman.

    The issue is most pressing in Israel, in part because tight restrictions on egg donation have long compelled infertile women to procure eggs abroad, where most donors are not Jewish. But decisions in Israel favoring the genetic mother over the gestational one are also likely to increase the already high demand for Jewish eggs in the U.S., and could call into question the religious status of thousands of children born to Jewish women around the world.

    Traditional denominations of Judaism believe that faith is passed down from mother to child. Until recently, Orthodox rabbinic authorities widely recognized the birth mother as the parent who confers religious status on her offspring. But at the January conference in Jerusalem of the Puah Institute, Rabbi Mordechai Halperin said that the pendulum of rabbinic opinion has swung toward conferring maternity on the egg donor. Puah provides services internationally to Jews who want to make sure that their fertility treatments are in line with religious law.

    In recent years, some well-known rabbinic decision makers—Yosef Shalom Elyashiv, Avraham Sherman and the late Meir Brandsdorfer, among them—have issued rulings that refer to the birth mother as an “incubator” or to her womb as an “external tool.” Though these decisions come from Israel, they hold sway with many ultra-Orthodox Jews elsewhere.

    “Judaism is not a genetic religion, for the obvious reason that it accepts converts,” says Edward Reichman, a physician and rabbi who teaches Jewish medical ethics at Yeshiva University. “At the same time, you need a legal definition of maternity, and it does make sense that the genetic contributor would be considered the mother of that child.”

    One of America’s most prominent Orthodox rabbinic arbiters, Rabbi Moshe Tendler disagrees. He believes recent rulings out of Israel are misguided: “Genetics provide only the blueprint, and for the next nine months the work is done by the gestational mother,” Rabbi Tendler says. “While the gestational mother is in labor, the egg donor could be on the beach in Miami.” Still, Rabbi Tendler says he performs a handful of conversions every year of babies born to Jewish women using non-Jewish eggs; just so there’s no doubt about the child’s religion.

    At the Puah conference, Rabbi Halperin—who is the chief officer of medical ethics for Israel’s health ministry—called on the Israeli parliament, the Knesset, to move swiftly to ease the restrictions on egg donation. Under current law, only women already undergoing fertility treatments can donate their eggs, but a new bill expected to pass the Knesset would allow many more young Israeli women to donate. In an effort to win support from the Knesset’s ultra-Orthodox factions, the bill also has a provision requiring a woman undergoing fertility treatments in Israel to do so only with eggs from a woman of the same faith.

    The debate has raised precarious ethical questions. “The notion that there is Jewish blood is offensive,” said Zev Chafets, a former government spokesman who also has written about reproductive medicine in Israel. When people make such a distinction, he says, “‘It’s not about science; it’s about race. It’s saying, ‘We don’t want outsiders, and our criterion is blood.'”

    An Orthodox Israeli woman in Jerusalem who gave birth to two children using eggs from a non-Jewish donor in Cyprus told me she feels betrayed by rabbinic rulings that favor genetics. “What’s a horror for us is that the rabbis told us one thing”—that the children born to her would be Jewish—”and now some rabbis are saying something else…. Either it’s kosher or it’s not.”

    The woman didn’t want to be identified because she has not yet told her young children how they were conceived, and because she fears that, with their religious status now in question, the youngsters could be expelled from their Orthodox school. She also worries that when it comes time for the children to marry, they could have trouble finding a mate or an Orthodox rabbi who would sanction the union.

    “I can’t say her fears aren’t justified,” Rabbi Dr. Reichman says. He can imagine a scenario in which a rabbi hired to officiate at a wedding would ask the engaged couple how they were conceived, to make sure that both parties are Jewish according to the strictest standards.

    “When we avail ourselves of this technology, that is one of the consequences—that there will be some people who don’t accept a rabbinic decision, and that could impact the choice of a spouse,” he said. “I hope it won’t be a concern, but realistically, I believe it could be.”

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    51 COMMENTS

    1. Agree 100% with these Rabbis, as it just makes plain common sense. The biological mother is the one who donates the eggs and as this is the child’s true biological mother, then, of course, she is the one to determine whether the child is Jewish or not. The carrier is just that, not the real mother. A woman who adopts a child (and the child should always have the right to know from where he/she came) and raises the child with love is considered a true mother. But in this type of case, only the biological mother is the real mother. Also, why should a Jewish woman who needs these donated eggs accept it from anyone else other than another Jewish woman – wouldn’t that be her first consideration?

      • While I would tend to agree with you in principle, the halacha is not that way, since the Gemara says explicitly that if a cow is pregnant with it’s second pregnancy and it stands back to back with another cow which has not yet become pregnant, and the fetus goes directly from the first cow to the second cow’s uterus, when the second cow gives birth to it, you have to be “podeh” it, you need to redeem it, since it is born from a cow that hasn’t yet given birth and it is like the first born.
        The Gemara also says very clearly that the soul of a person goes into it’s body at the time of its birth and not from the time of it’s conception, so it is clear from Talmudic law that the baby’s identity would take that of the woman who gave birth to it, and not the donor.

        • Do you think of yourself so highly that you can pasken against the psak of Reb Elyashiv?! I”m sure he also knows of this gemara.Have you thought when you issued your “psak” that maybe there’s a difference between the gemara with the cow because it says “peter rechem”? And the second gemara you bring is not any proof to your position.So what if the soul goes in at the time of birth that doesn’t mean that the child goes according to “who” gives birth.

          • You know, many frum people always tell me about the flaws of the scientific system. They say “the scientists can’t be believed because they’re not about the emes”, but the truth is that in the scientific world, if someone writes a new theory or idea, he publishes a peer reviewed paper, which is then reviewed by people who try to shoot it down with proofs. It doesn’t matter who writes the proof, it’s based on the evidence and the ideas, not the person.
            For some reason in the world of halacha, people do the exact opposite, they will refuse to listen to the opinion of anyone else once something has been said. This takes the entire process of finding the truth out of it! Why would I listen to the opinions of people who won’t listen to conflicting ideas of an issue based not on the merit of the idea, but based on the stature of the one who said it? It is impossible for that type of system to come up with the Emes.

            • Rav Yosef Dov Soleveitchik ztzl, Rosh Yeshiva of Rav Yitzchol Elchonon Seminary once said that toothpaste is not roie l’achilas kelev and is therefore not assur in anyway. A student asked him the next day, I put toothpaste in front of a dog and he ate it. Rav Yosef Dov ztzl countered, who do you believe, me or the dog? Daas Torah of our kadmonim and poskim is holy. Science is materialistic and generally does not take G-d into account. Like the Rosh Yeshiva said, who will you believe, Rav Moshe ztzl, Rav Eliashiv shlita, or the research doctors who condone killing a fetus because it isn’t alive yet?

            • What the Rosh Yeshiva Z’L meant was that the ingredients in toothpaste that have a sheila on them are not r’oi l’achilas kelev, not the final product. If that were the case, then the talmid would have been correct, but he was wrong not because of “Daas Torah”, he was wrong because something that isn’t r’oi l’achilas kelev or adam that is put into a meichul, the meichul is now muttar, and this is the din in Yoreh De’ah.
              As for his answer, I don’t believe you, since it’s M’Furesh a din in Choshen Mishpat, hilchos dayanim not that way! If his rebbe is the dayan and is ruling mistakenly, or if the talmid has a better s’fora l’hepach, the talmid has the obligation to correct his rebbe, the dayan.
              In the times of the kadmonim, there wasn’t a concept of “daas torah” at all, this is a later invention, and in the times of Chazal, anyone with a s’fora or a reya could disagree even with the nassi. Daas torah comes about during a time in which we were influenced by catholic ideology, in Europe.
              As for killing the fetus, science wouldn’t help in this din, because it’s not based on scientific evidence at all, it’s based on the gemara. Science is taken into account on many things, & is neeman

      • The key difference between father and mother is that the father is only a genetic donor, and the mother is the one who’s blood is connected to the childs blood. In her womb, the malach learns with the child. That child lives the life of that Jewish mother. In your common sense analogy, a donor egg is only like sperm a DNA blueprint, and should have no input on the childs religion (before you respond think about it. BTW I am pretty sure that when there is a non jewish egg every rov would agree to giyur lechumra.

      • I agree , a woman that carries the baby is a carrier , not the bio mother. Her genes are not involved in the creating of this child. Watching this child grow it will be a contant reminder that some unnamed woman dna and her husbands dna were mixed to make this child she calls her own. It doesn’t sound right. She is a very giving person offering to house another person’s child and going thrue the birth process, but it still isn’t her child. And the fact is that if that child ends up marrying the offspring of the bio mother – they are half siblings and carry the same dna.
        Its a not normal situation to put innocent children into because someone wants to carry and give birth. And it will end up complicating that same childs life later on. Don’t kids have enough to deal with in this world? What happens if the couple spilt?
        He could claim she isn’t the real mother and the birth mother could end up resenting the child who looks nothing like her or is not related to her.
        I can feel compassion for those who are seemingly forced into choosing this situation , but, I can’t help thinking that there is going to be alot of stressfull issues to deal with – the child being the main reciepien.

    2. Whats the difference if a child is adopted? As far as I know, if a Jewish couple adopt a non-Jewish child, at bar/bas mitzva they have the choice if they wish to continue being Jewish like they were brought up & officially “convert”, or they can choose not to take on the ‘Ol Malchus Shomayim”. I know numerous cases where this is what happened (most continues along the Jewish path, some did not). I dont see why invitro fertilization from non-Jewish eggs should be any different if Rabbonim say that the kids are not halachikly Jewish from birth.

      • I think 2 is right. A ger is a kosher jew. Even if there was a mamzer problem generations ago it all clears up -a ger is brand new jew with no baggage-he might not be a yoresh etc. But no problem marrying a jew.

      • There is actually a teshuva of R’ Moshe zt”l who held that way as well, that the birth mother is the one who determines and not the genetic mother. However, although there were few if any poskim who disagreed then, things have changed and what was once a rarity has become routine. I think it is the changing situation on the ground which has caused the current shift of opinion amongst the poskim more than 20 years after R’ Moshe’s teshuva.

      • It’s not so pushut…..Reb Moshe paskened years ago the same way. When you talk about Jewish blood its the blood that comes from the gestational mother not the donor. there is no blood in an egg, so blood as well as specific DNA come from the birth mother.

      • you sound more like a SMALL JEW. mr. obvious. what a ba’al Gaivah (and probably a liar, you probably formed yuor opion after reading this article and want to sound “smart”)

      • Not obvious at all. The egg becomes attached to the gestational mother-it becomes a part of her and she “raises it for nine months. So it’s not pashut.
        On needs to be careful before jumping to conclusions as to a pesak of a posek of the stature of Rav Tendler just as one should be cautious before doubting Rav Elyashiv.
        Also, as Rabbi Reichman pointed out Judaism is not genetic. The issue needs further discussion by our gedolim.

      • Whether the normative halacha is as Rav Tendler Shlita says or not, one should be very, very careful before writing such words. First Rav Tendler is an outstanding Talmid Chacham, one who knows kol ha-Torah Kula. Secondly, and perhaps more to the point, one wonders whether the writer ever considered the implications of Yevamos 78a and the dispute among the Rishonim as to its ramifications,the tremendous import of Menachos 69b or the fascinating comment of Yonasan ben Uziel to Beraishis 29:22. The very fact that the writer wrote such is proof that ignorance of these sources prevail and that respect is lacking for a great Rav.

    3. As I understand embryology, the 9 months the child spends in the womb also has significant effects on the child’s development. Identical fertilized eggs that gestate in different women are less ‘identical’ than other identical twins.

      In any event. I assume the real issue is under what circumstances does Hashem assign a Jewish soul to the developing baby vs. a non-Jewish soul. I’m completely ignorant in this area, but I had heard that a fetus less than 40 days old is ‘like water.’ Does that mean that where the fetus is at 40 days development is the deciding factor? I have no idea.

    4. Unfortunately, regardless of what Rabbi Tendler says, he is considered by most Orthodox jewry as an outcast and someone who clearly subverted his great father in laws words. Sure all the YU crowd swear by him. However, mainstream orthodox Rabbonim, Dayonim, and those involved in Halachah both in the USA and abroad especially in Israel, shy away from anything that Tendler says.

      He is a talmid chachum. Unfortunately he went in his own direction, very far from his shver ZT”L. He quotes things from his father in law that evryone of his talidim, students, clearly say that it wasn’t so. I am only writing this coment to refute the statement that he is “one of the most prominent orthodox arbiters” . Ain’t so.

    5. Ultimately, the Halacha is whatever your Rabbi says it is. We’ve endured Machlokes in Psak before, and this isn’t much different.

      What’s the status of a fetus that was conceived before its mother converted but was born after? Why would the Halacha be different in this case?

      • This is a big problem. It is getting more and more difficult for our kids and future generations to marry without huge concerns. My Mother remarried. Her Husband is Jewish but his 1st wife was not. Therefore his children are not Jewish, Simple. But one of his daughters, who totally looks and appears to be Jewish, married a Jew even, Has 2 daughters named Shayna and Ariella who are NOT Jewish but think they are! And they are only dating Jewish boys. What a big mess. Now this egg thing, Oiy!

      • I discussed this question with R. David Feinstein once and he said there is no issue of Mamzerus, because Mamzerus comes about through a Beah Shel Issur, which you don’t have here. His words to me were that the child would be treated as having two mothers and should treat both mother’s families as related with respect to the Issur of marrying a close relative. Since the egg donor was Jewish, I did not get his psak as to whether the baby would need to undergo Giyur.

    6. Its not like this isn’t touched upom in the gemora so its not surprising that certain people would be on the WRONG side.

      As far as Zev Chafetz id concerned, he’s a self hating jew anyway so its not surprising that he finds yidishe blit offesive. Personally I find people like Chafetz offensive to Yiddishkeit. Oh they are, I forgot.

    7. To 10-11, bechoros has to do with “Peter Rechem”, and since in that case the cow was a peter rechem for that mother, its considerd a bechor to be. Podeh. But its not evidence about who the real mother is.

      And I don’t know where the gemure says that, but if it says so, it doesn’t say which neshume its given. Cud be the same religious neshume as the egg donor! HaShem gives the neshume!!

      And tendler says its only a bluprint, ha?! Like whom will the child look like? Whoms traits will it have? I think from the bluprint! HaShem made this system for a reason!

      And about mamzeiros, I think if it is as these rabunim r saying, that its the donors child, it cud be a shaale.

    8. you can say svoros based on halacha , but to say “it makes sense…” the toira is nidrash on the 13 midos even if they “dont” ” make sense.?neither is the toira nidrash on “emotion” as the maskil Tendler puts it “while carrier mother is in labor, the biological mother is at the beach” .this issue is way way above our heads & we should let the “poiskey hador” deal with it. not scientists, doctors & pompous “Rabbis”

    9. Just so people know the gestation mother is not like an adoptive mother being in the womb for 9 months effects the child’s development in many ways not the lewast are influences of mothers hormones immune status infections etc and at the embryo stage it has an even greater effect on the basic development hence test tube embryos do not survive or grow properly beyond a certain stage

    10. I can understand the giyur lechumrah. However let’s look at a giyoret who converts after conception, using the above logic the child should need a giyur after birth. Yet we pasken thet if the mother converts before dekivery the child does not need conversiom and is considered a jew/ess.
      Sceintifically we know that the nutrition of the gestational mother determines a lot of the childs health.
      Also there is one midrash that states that when leah and rochel were carrying a malach came and switched the eggs. Yet the posuk states dina bas leah.
      I am pretty sure that the only reason that the rabbonim state to go after the bio. mother is lechumrah.

      • I would think that in a case of a geyoiras the child is jewish maybe because it was part of the geyur process? Just a point to take into consideration.

        • Possibly, but when a tinok is megayer, the tinok at some point has to show that he wants the judiasm at bar/ bat mitzvah. These halochas are so complicated and that is why I can appreciate someone stating that the halachah is that the child needs giyur lechumrah. However to say so lekatchila, I take a lot of issue with it.

    11. The obvious next question is what part of the egg is responsible for a person being born a Jew? The mother and father both contribute DNA through the chromosomes contained in the nuclei of the sperm and egg. Only the mother contributes mitochondria and membrane proteins from the body of the egg. If the egg of a Jewish woman had the nucleus removed and replaced by one from a Gentile woman would the resulting child still be Jewish?

      Or suppose it were the other way around? Would Jewish DNA in the body of a Gentile woman’s egg make a child Jewish?

      And those are the simple questions. Some day we will be able to mix genes from several people in one egg or sperm cell. The egg itself could be made of components from more than one person. At that point parentage is very tricky to figure out.

      These questions will not be theoretical for long. They will require applying the accumulated wisdom of Jewish thinkers in ways which our ancestors never imagined. I hope the modern scholars are up to the task.

    12. The obvious and fairest solution is that the child is Jewish if either of those conditions exists. It does not need to be one at the expense of the other.

    13. RABBI Tendler may not be invited to youe shul because he doesn’t follow the directives you think are right. However, you can’t deny he knows more about medical issues than almost all of the mainstream rabbis. He was right about brain dead and he is a renowned expert in these issues. I don’t understand why he bothers you so much – especially here – where he is machmir like the others anyway. Just a quick question, the reverse case: Jewish egg and gentile mother, are you going to do the kiruv work?

    14. If the egg follows the donor then somewhere down the road the child could conceivably marry his/her sister w/o knowing it. Another issue is Yichud. The mother who gave birth should not be allowed to be alone in the same house when he grows up. This is very problematic.

    15. If you use eggs from jewish women and implant them in another woman – isn’t there a chance that a child from the donor could marry its sibling in the future – doesn’t this bother the rabbanim ?

    16. You know, I remember hearing one time a whole justification by a rabbi for Judaism being reckoned by matrilinear vs. patrilinear descent. The explanation was that it was inherently obvious and logical that the child takes its religious identify from its mother — that’s the person who nurtures and raises it from Day One. The child literally absorbs its religious and cultural identify along with its mother’s milk. Let’s say you have a Christian mother — she’s going to sing Christian lullabies, she’s going to have Christian traditions. How is this child going to identify as a Jew without serious confusion? So logically, a Jewish child needs a Jewish mother to raise it.

      But now…surprise!…it turns out that it ISN’T anything to do inherently with maternal behavior. It’s all genetics. Too bad Hitler isn’t alive to enjoy the irony that the rabbis finally agree with him.

    17. i am fascinated here and reading the posts.

      so am i to understand that a jewish egg donor who gives a gentile woman her egg and fertilized with a gentile husband and then carried for 9 months is jewish?

      i am not a rabbi but rav tendlers position resonates more with me as making halachic sense.. according to the rabbis who hold the egg origin is what counts. how could they allow jewish couples to knowingly breed gentiles that then need conversion.. that position doesnt smell kosher to me.

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