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Jewish DressBe Fruitful and Multiply
For most observant Jewish couples, that is one of the easiest mitzvot to fulfill. For those faced with infertility issues, or other health problems that interfere with pregnancy, it becomes unimaginably complicated.

Infertility alone is a mind-boggling challenge, a rollercoaster of hope and heartbreak through the twists and turns of complex fertility treatments, all expensive and disrupting, with absolutely no guarantee of success at the end.

But for Jewish couples who want to adhere to halakha, and who may need egg donation or a surrogate mother, yet another level of challenges exists. In a field that is changing as quickly as fertility, how do they ensure they are not violating halakha?

“It’s no longer Star Trek science, it’s everyday science,” said Rabbi Kenneth Brander, Dean of the Center for the Jewish Future at Yeshiva University.
Questions swiftly arise that no one ever imagines facing. Is using a surrogate mother, or a donated egg, a form of adultery? Who is the child’s mother? Is it better to use a Jew or a non-Jew? The answers might not be what you expect, yet it’s vital to get them right.

These are decisions most often agonized over in private by a very small number of parents, and most do not wish to discuss it publicly. Those in central Virginia who would talk about it requested anonymity.

Shana and Ari Lowell faced this dilemma three years ago, although not because of any infertility issue. After giving birth to their first child, Gavriel, Shana’s degenerative disc disease worsened, and doctors advised against another pregnancy.

“It’s all well and good for doctors to tell you that, but we want more children,” Shana said. Since there was no problem with her eggs or Ari’s sperm, the obvious answer was a surrogate mother. Obvious, but fraught with questions.

The Lowells, who are Modern Orthodox and now live in New Jersey, first began talking to rabbis. They quickly learned it would not be easy to find a consensus opinion derived from halakha.

“It’s hard,” Shana said. “I feel like surrogacy in some ways is like IVF [in vitro fertilization] was 20 years ago.”

As they began talking to rabbis, Shana became concerned there was more discussion of the fine points of halakha than of the human issues – until they spoke to Ari’s rabbi from his yeshiva. Like many people trying to find their way through a complex legal thicket, Shana found it easier to come to terms with the challenge once they found an advocate.

“Instead of approaching it like, ‘Let’s try and find a loophole,’ his approach was to deal with the issues straightforwardly,” she said. “It felt like he was approaching it from the perspective of trying to make it happen. If the other experts had said we couldn’t do it, I’m not sure I would have been comfortable in my own mind. But he felt like an advocate, and if the advocate said it was not doable, I would accept that.”

The Lowells, like all Jewish couples in similar situations, had two things going for them. First, Judaism is very comfortable with science. Second, since the point of the science in this case is to help couples “be fruitful and multiply,” the interests of fertility medicine and Judaism coincide perfectly.

(By way of contrast, the official Catholic position is that IVF and surrogate motherhood are “highly immoral.” And under Islamic law, using a surrogate mother is only permissible if the husband marries her, at least temporarily.)

Or, as some have put it, “Where there’s a rabbinic will, there’s a halakhic way.” The Talmudic stance and subsequent rabbinic thinking on this issue, like many other questions pertaining to science, is one of the hopeful explorer, perpetually seeking the clearest way to the truth, using Torah as the map.

As long ago as the 13th century, Rabbi Menachem Ha’Meiri wrote, “Any advances achieved through natural science are not to be considered magic, which is prohibited. There will come a time when science will know how to create human beings without the natural intimate act. This has been explained in the books of science and is not an impossibility. It is permitted to be involved in such procedures for they are considered within the order of nature and not in the category of magic.”

Brander, dean of the Center for the Jewish Future at Yeshiva University, who also has a special ordination in medical ethics, fertility and gynecology, has become well-versed in the intricacies of fertility medicine and its interaction with halakha.

“Judaism recognizes the fact that as partners with G-d in furthering the creations of the world, people have the capacity to harness the greatness of their intellects and to be able to use that greatness in challenging moments in their lives,” he said.

In the past 15 to 20 years, he said, rabbinic thinking on fertility methods has come a long way. As for surrogacy, Brander said, “I think in general we do embrace it. It’s not the first thing we do when someone has an infertility issue. We try other options. But if necessary we will embrace the notion of surrogacy.”
Much of the discussion about where surrogate moms fit into halakha revolves around the critical question of maternity, since Judaism is considered to descend through the mother. From this question flows many others surrounding this novel relationship, touching on how to choose a surrogate mother and making sure the child is considered Jewish.

As the Lowells and other families have discovered, there is a long-running debate among rabbis over whether the genetic mother or the host mother should be considered a child’s true mother in terms of the child’s standing as a Jew. This debate has proceeded through many, many intricate points and with countless references to the Torah and the Talmud, and cannot be considered entirely settled today, although consensus is leaning toward the host mother. Thus, the solution most rabbis now endorse, to resolve any potential differences of opinion, is conversion at birth “just in case.”

“We converted them just in case,” Shana Lowell said. “And it really was, just in case. It was very difficult emotionally. I’m clearly their mother, there’s no question of that. But if you live in a religious world, you follow the religious rules.”

Then there’s the other set of questions, about the surrogate mother. Should she be Jewish? Is it better that she be married or single? Can she be a relative? This has proven to be a thornier question in some ways than maternity.

“Some rabbinical authorities had suggested we needed a single Jewish woman,” Lowell said. “You’re transferring an embryo, technically, you’re taking the sperm of a married man and putting it into another woman. It could be called adultery. So, it’s bad enough to sleep with a single woman if you’re married. It’s worse to sleep with a married woman.”

Yet Lowell, as well as other parents from central Virginia, felt more comfortable going a different route. They chose to find a non-Jewish married woman instead. Since the children were converted at birth anyway, their Jewish identity was settled, and the Lowells preferred the stability of a married woman as the surrogate.

Most rabbis suggest not using a relative as a surrogate, despite the natural inclination to accept when a sister or cousin offers. The specter of incest raised by using a relative is reason enough, but Brander said he feels the practical considerations are just as powerful: “Imagine when the child is old enough to be disciplined, and does something the surrogate feels is wrong. Is she going to act as the child’s aunt, or as his mother? I see the potential for great family harm.”
Just to punctuate the 21st century nature of the situation, the Lowells found their surrogate mom online, through a website called, yes, Surromomsonline.com. They read the postings and discussion boards for several months, then used the website to find a woman in Cape Girardeau, Missouri. She was married, worked with her husband in his contracting business, and was not Jewish. Better yet, she had references!

“She had done it before and she wanted to do it again,” Shana said. “We just clicked.”

A recent Newsweek cover story documented the not-very-public but thriving culture of surrogacy, in which many women, especially some military wives, find both profit and personal satisfaction in providing their wombs for growing numbers of infertile couples. Sometimes wrenching dramas play out, particularly when the surrogate mother finds it difficult to give up the child. Most of the time, however, it appears that the stories end well, as did the Lowell’s.

Shana and Ari now have twins, Ilan and Nadav, and feel they have an obligation to help other couples as much as they can.

“For the rabbis it’s a technical question; for us it’s emotional,” Shana said. “We were very open about it in the community and with anyone who wanted to talk about it. If we can help anyone else, it will have been worth it.”

-Tony Wharton

Copyright 2007. Virginia Jewish Life Magazine.