194 Selected Reform Responsa
Guttmann was cautious(see#158 above).
We would agree that there is no question about the legitimacy of such children, as long as the surrogate mother is not married. However, we realize that problems still exist in civil law in various states.
It is more difficult when we consider a married surrogate mother. Different factors are involved. On the positive side, we have the mitzvah of procreation to fulfill. Certainly, that mitzvah ought to be encouraged in every way possible. It is for this reason that both adoption and artificial insemination have been encouraged by traditional Judaism and Reform Judaism. In a period when the number of Jewish children has declined rather rapidly, we should do everything possible to make children available to families who wish to raise them.
Problems are raised by the marital status of both couples in civil law and halakhah. Is this to be considered adulterous or not? Certainly, under normal circumstances sexual relations between a man and a married woman would be adulterous. The fact that the woman with whom the relationship is carried on has a husband who is willing to permit it makes no difference. In this instance however, insemination would be conducted artificially and no sexual penetration would occur. It would, therefore, not differ materially from circumstances under which artificial insemination with sperm from an unknown donor takes place. In that case, too, the donor may very well be married and certainly the woman recipient is married. This form of artificial insemination has been accepted by us(see #157-158 above), by Freehof, and with some reservations by Guttmann. At least two of three Orthodox authorities(Baumol , Emek Halakhah,#68, Schwadron Maharsham, vol. 3,#268) have permitted this, too, however with reservations. We would therefore not consider the use of a married surrogate mother as adulterous, as the beginning of the process is akin to artificial insemination. We would therefore hesitantly permit the use of a married surrogate mother in order to enable a couple to have children and await further clarification of medical and civil legal issues.