Jewish Values Online - Does Judaism allow couples struggling with infertility to hire a surrogate mother? What do Jewish ethics say about paying someone to carry another's child to gestation? Are there any limitations on who can act for this purpose?

Judaism’s first concern is always compassion, both for the family and the unborn child. Many questions are raised by surrogacy. What will the DNA make-up of the child be (is the surrogate also providing the egg or is the infertile couple’s DNA being used entirely)? Will the child be considered Jewish within the community? What protections are in place for the family, surrogate and unborn child? These questions are not simple and I believe that Jewish values of kedushah and dereh eretz require that these questions be answered before engaging in surrogacy.

If answers to these questions can be provided in a way that is protective and acceptable to all parties involved, I believe that surrogacy can be a good option for couples who would like to conceive but are unable. Rabbi Elliot Dorff, one of the great ethicists of the contemporary Jewish community, notes that although early objections were raised within the Jewish community these questions have been resolved. Women have not been degraded by surrogacy, but empowered. Legal issues of uncertainty of the parents and protections for the surrogate’s privacy have also been addressed.

The concern that remains is the status of the child. Would a child be considered Jewish if s/he were carried by a non-Jewish woman? Although it goes beyond the scope of your particular question, it remains an open question.

I would argue that Judaism does allow for payment of a surrogate mother. To restrict payment would be to unduly deny loving couples from the opportunity to raise a family. The values of compassion and the mitzvah of raising a family, which are paramount in Jewish tradition, override any other concern I have.

Answered by: Rabbi James Greene

Yes, Judaism allows couples struggling with infertility to hire a surrogate mother. There is a complex of rabbinic literature in the last few decades years that flesh out the complicated moral and legal issues surrounding the use of surrogates. For a clear and thorough portrait of such literature and the relevant Jewish issues, I recommend Elliot Dorff’s Matters of Life and Death (chapters 3 and 4). You’ll discover that scholars and rabbinic authorities are divided about the use of a surrogate mother, but, yes, it is permissible.

Some ethical concerns about the use of surrogate mothers include: 1) the dehumanization of a woman. That is to say, a surrogate functions as an incubator and some go so far as to liken it to slavery of women. 2) The social effects of surrogacy accentuate the gap between rich and poor, as the cost is prohibitive to the poor. 3) The fact that only the rich – or mostly the rich – will be able to reproduce through surrogacy because of its cost, it seems to implicitly the idea that the rich have more of a right to reproduce than the poor. 4) This socioeconomic gap that surrogacy implicitly underscores has negative effects upon all of society, including gaps between class and race, wherein a “womb/pregnancy market” is created, wherein white women’s genetic material and surrogacy will command higher fees. And 5) Surrogacy is dangerously close to adultery where the boundaries of the relationship between husband and wife is blurred both figuratively and literally (genetic material of ovum surrogates is not the mother’s).

In 1997, Rabbi Elie Spitz of the Committee of Jewish Laws and Standards (CJLS) convincingly responded to each of these concerns, maintaining through research studies that there is no evidence that degradation of women has been a real problem in surrogacy: that surrogates are generally not poor and that they are free choosing volunteers. He further argues that paying surrogates is acceptable, as taking away payment would unnecessarily remove an important incentive to surrogates that makes it easier for infertile to have the child they so desperately seek.

Couples seeking surrogacy should consider the following guidelines (as derived from the CJLS):
1) Consider the religious and personal concerns involved, receive thorough counseling, and seriously investigate alternatives including adoption.

2) The surrogate herself should be protected from pressure to continue the pregnancy when she judges an abortion to be required to avoid serious threat to her health, and conversely protected from the pressure to abort.

3) The greatest concern must be given to the well-being and rights of the child to be born, and to avoid exploitation of any parties involved.

4) Payment of the surrogate’s expenses is appropriate. There is a debate as to whether there should be payment beyond that: some say she deserves payment beyond expenses to account for intangible risks and burdens, while others say payment beyond incurred expenses is akin to baby-selling.

5) There is a debate as to whether the surrogate mother has a right to challenge custody. Some say she has the right to claim custody of the child and withdraw from the agreement at anytime, whereas others say that the right to custody claim ends after birth. All parties defer to civil law on this matter.

6) The Jewish status of the child follows that of the birthing mother. If the surrogate-birthing mother is not Jewish, the child will require a halakhic (Jewish legal) conversion to be recognized as Jewish.

Answered by: Rabbi Paul Steinberg

While Jewish families have sought solutions to the problems of infertility since ancient times, the contemporary technology raises new questions. While Abraham and Sarah (Genesis 16) opted to bear a child through Hagar, their example does not suffice for understanding the ethical issues of our day. Since the technology raises new issues in terms of parentage, legitimacy, transmission of Jewishness, there is not yet a firm consensus about all of the related issues across the Jewish spectrum.

The first command of Torah is to be fruitful and multiply. As a result the Jewish world inclines favorably toward finding ways to help couples conceive. All the movements in Jewish life support surrogacy though they may impose certain restrictions on the process.

In 1996 Israel became the first country to enact a bill allowing surrogacy. The law was enacted following a long period of study and successful efforts to gain the approval of the Orthodox parties. “The most important aspects are: (i) a public committee authorizes and supervises every single case; (ii) only full surrogacy is permitted; (iii) the agreement is not commercial, reasonable expenses can be paid to the surrogate mother under the supervision of the Approving Committee; (iv) the surrogate mother must be single or divorced; (v) under certain conditions the surrogate mother can withdraw from the agreement; (vi) the child is under the tutelage of a social worker, representing the state, from birth until the completion of the adoption procedure.” ( Human Reproduction vol.12 no.8 pp.1832–1834, 1997 - Legitimizing surrogacy in Israel)

While that decision generally accords with Jewish law, the individual movements have raised moral concerns that may not be addressed by Israel's decision. Some of those are raised in the article by Eliot Dorff cited in Rabbi Paul Steinberg's response to this question. In general the Reform movement permits a surrogate pregnancy as a last resort, but “may insist that the eggs and sperm used are those of the couple concerned rather than donated material from an anonymous source” (http://www.mazornet.com/infertility/surrogacy.htm).

A 1982 Responsa issued by the CCAR (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=159&year=arr) addresses some of the issues of who may serve as the surrogate. The surrogate mother is viewed as a medical aid to relieve the childlessness of the couple and to enable them to fulfill the mitzvah of procreation. It is clear to the authors of this Responsum that there is no problem if the surrogate mother is unmarried. They go on to consider whether a married surrogate mother could be accused of adultery as a result of this pregnancy and conclude that it does “not differ materially from circumstances under which artificial insemination with sperm from an unknown donor takes place.” Since that would be permitted without question, they “permit the use of a married surrogate mother in order to enable a couple to have children.” While this responsum does not address the issue, I suspect they may have the same reservations as do the Israeli authorities and would not endorse using a relative as a surrogate mother.

Most of the sources I found did not address the question of payments to the gestational mother. Rabbi Eliot Dorff addresses a variety of economic concerns in this article : http://www.myjewishlearning.com/beliefs/Issues/Bioethics/Fertility_Technology/Surrogacy.shtml He concludes “outlawing payments to surrogates would be an unnecessary and unwarranted ban that would unjustly prevent infertile couples from having the child they so desperately seek.” I believe the Reform position would agree.

Answered by: Rabbi Louis Rieser