Selected Reform Responsa

SURROGATE MOTHER 1981

QUESTION: What is the status of a child born to a surrogate mother who has been impregnated through artificial insemination with the sperm of a man married to another woman? The child will eventually be raised by the husband and his wife.(O.Z., New York City )

ANSWER: We must inquire about the Halacha and the use of surrogate mothers, as well as the status of the child. The Talmud and later rabbinic literature seem to have dealt with a subject akin to the question of a surrogate mother when they discussed pregnancies which were not caused by intercourse. The rabbis felt that a girl could conceive by taking a bath in water into which male semen has been discharged(Hag. 14b); in other words, without intercourse or penetration. This line of thought has been continued by some later commentators and respondists(Eibeschutz, Commentary to Yad, Hil. Ishut 15.6; Ettlinger, 4rukh Laner to Yev. 12b). The medieval author of Hagahot Semak, Perez ben Elijah of Corbeil, felt that a woman should be careful and not lie upon linen on which a man had slept so that she might not become impregnated by his sperm(Joel Sirkes to Tur, Yoreh De-a 195).

Here we have instances of conception, through an unknown outside source, and this was not considered to cause any halachic problem for the woman or the child, who was legitimate. Yet there is a striking difference between these situations and ours, as the child in question there was raised by its natural mother while ours will be raised by other parents. Furthermore, there is a commercial aspect in our situation, as the surrogate mother presumably has been paid for her efforts.

A biblical parallel seems to exist in the tales of the Patriarchs (birkayim, Gen. 30:3, 50:23) as Hagar was given to Abraham by Sarah so that there would be a child. Similarly, Rachel gave Bilhah to Jacob. In both instances the primary wife reckoned the child as her own and was able to accept it(as Rachel) or reject it(as did Sarah). The differences here, however, are as follows:.

1. The child and biological mother were part of the same household and family; and