The establishment of maternity and surrogate motherhood in jewish and american law
| Author | Henter Leda-Andrea |
| Position | Master Student At "International and European Community Law " Faculty of law,"Nicolae Titulescu " University, Bucharest |
According to Jewish Law, maternity, like paternity, is irrevocable established as belonging to the natural parent . It is beyond the power of a court of law to rearrange the parent-child relationship to create a parental relationship which mirrors the custodial one . Although it is true, that certain rabbinically created institutions associated with parenthood are transferred when custody is transferred, all biblically mandated duties, rights, obligations, and prohibitions of motherhood are uniquely the natural mother's and cannot diminished by the transfer of custody. The first type is that of the now famous Baby M. case . This occurs when a woman provides the ovum and her uterus to carry the fetus to term . The father provides his sperm .The result is a child conceived through artificial insemination . The father and his wife agree to raise the child as their own, and the mother agrees to waive her custody rights in favor of the sperm provider and his wife . The "surrogate" mother is the genetic mother as well as the person in whom ovulation, conception, pregnancy, and birth occur .
A second type of case involves the donation of an ovary to a woman whose ovaries are not functioning . In this case, the child conceived from such a donation is genetically related to the donor, but is the product of ovulation, conception, pregnancy, and birth from the surrogate mother . A third case occurs when a single egg is removed from the genetic mother and implanted in the surrogate mother . Conception then occurs in the surrogate mother, or more likely, in a test tube . Although ovulation occurs in the genetic mother, the surrogate mother again carries the child to term and gives birth to it . A fourth type of case is that of a fetal transplant . The genetic mother's ovum is naturally fertilized . The fetus then transferred into the surrogate mother's uterus . The surrogate mother carries the child to term . The child is genetically identical to its genetic mother . According the Jewish law there is no doubt that in the first type case, where the mother is both the genetic and biological mother, she is also the legal mother and the sperm provider is the legal father . This situation is no different from an artificial insemination case; it is wrongly called "surrogate "case .The sperm donor's wife, if she was to raise the child, would have the status of adopted mother, with all of the attendant privileges and obligations . The remaining three cases are far more difficult than the first one because the different aspects of motherhood have different criteria .
Although Jewish law does not automatically employ genetics to answer all question of lineage. This can be proven from three examples, each from different area of law .
The first example is from the laws of conversion . According to Jewish law, the role is that one who converts to Judaism loses all legal ties based upon her genetic relationships, and it is as if she were born anew . Accepting this rule, the Talmud acknowledges that according to biblical law, one who converts can marry his mother or sister, or her father or brother, assuming they also convert . The rabbis in the time of the Talmud prohibited these marriages only because they feared that people would mock Judaism by saying that converts join Judaism in order to engage in these previously prohibited relationships . The rabbis did not prohibit these relationships on the grounds that they involved sexual relations between genetically close relatives .
The second example of Jewish law's rejection of genetics is the dispute over whether genetic fatherhood has any legal status in animal husbandry law . A large number of decisions maintain that the law does not recognize any link, any connection at all between a male and its progeny . Even though the bible, when dealing with the prohibition against killing an animal and its child on the same day, says :"a male animal ( oto) and its male child (beno) should not be slaughtered on the same day . Furthermore, the refusal to acknowledge the male lineage is true even if one knows with certain the paternity of the animal . A number of decisors disagree and maintain that Jewish law does not assign legal significance to fatherhood in animals .
The third example comes from the laws of orla . According to Jewish, it is not permissible to use the fruit growing on a newly planted fruit tree during the first three years of the tree's life . Although there is a considerable talmudic debate on the topic, all decisors agree that a graft from a tree which is six years old and not obligated in orla, onto another tree two years old and obligated in orla, legally makes the grafted branch part of the two year old tree .This is true even though the branches are still growing fruit of the old tree and genetically unrelated to the host . Discussions of the last three types of host motherhood have generated a considerable amount of literature among the current periodidal of Jewish law . When the topic was first raised, one of the primary sources discussed was a Midrash . The Midrash was quoted by a biblical commentary Targum Yonatan ben Uziel on "Genesis 29:22", where Dina, Jacob's eleventh child, was born, Targum Yonatan states that originally Dina was conceived in Rachel's womb, but God transferred her after conception to Leah's, so that Rachel could give birth to Joseph . Yet the Bible still unquestionably refers to Leah as Dina's mother and Rachel as Joseph's mother . This Midrash states that who gives birth to the child is the mother .
Although two other problems exist in reference to this particular Midrash : first it is written in the Talmud in a form which does not mention surrogate motherhood, which seems to indicate that the Targum Yonatan's version is not accurate . Furthermore, this text appears for the first time in the Targum Yonatan, whose authorship is unknown . As more scholarship is generated on the topic of surrogate motherhood, it is unlikely that this Midrash will be dispositive, or even significant, in the ultimate decision on the law .
A number of talmudic sources have been cited as relevant to the issue of surrogate motherhood . The first such piece is located in Yevamot 97b . Twin brothers who were converts, or similarly, emancipated slaves, may neither participate in chalitza or a levirate marriage ; nor are they...
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