"From Machon Puah"

Who is his Mother?

In the past couple of weeks we have discussed the troubling story of the Savage family. Having been impregnated with the wrong embryo, they decided to carry the baby to term and have since delivered and given the baby to his genetic parents.
Although Sean and Carolyn Savage are non-Jews, the story has renewed interest in the hypothetical discussion of parentage in halacha. If this was a Jewish couple, what would the status of the child be and who are his halachic parents?
First off, without knowing the specifics of the case, it should be noted that it is possible (although certainly not guaranteed) that a couple could find a heter to permit them to terminate such a pregnancy. However, that is not within the scope of our discussion, which will be limited to the issues raised if such a pregnancy were brought to term.
There is a halachic principle that is used when discussing the relationship between a father and his son that states, “most of the relations are from the husband” (Sotah 27a). In other words, when discussing parentage, we assume that the husband is the father of his wife’s child. Therefore, there is no need to verify paternity through DNA testing or other similar tests. This holds true even when there is some question or doubt regarding paternity.
However, our case does not contain any question or doubt; there is not only a clear third party involved, there is outright evidence demonstrating that the husband is not the father. This evidence extends to the mother as well, raising clear questions as to halachic maternity.
When one woman carries a child of another woman there are four possibilities as to who is the halachic mother of the child. Either a) the genetic mother is the mother, b) the birth mother is the mother, c) neither woman is the mother or alternatively d) both women are the mother. The case for either woman is intuitive. Either as the bearer of the child or the provider of its genetic materials, each woman has an understandable claim to maternity of the child.
Furthermore, it is possible that in order to be considered the halachic mother a woman must contribute the genetic material as well as give birth to it. Since neither woman satisfies this requirement, it is possible that the child in halachically motherless. Or, it may be possible that the satisfaction of either requirement leads to halachic status as the mother. In our case, each woman satisfies one of the requirements and thus the child has two halachic mothers.
Ordinarily, when faced with a situation for which there is no clear halachic determination, the vast annals of Talmudic literature are searched for precedents upon which to build a logical decision. This question has in recent years been debated among the poskim, but there is no real definitive answer.
Many believe that the woman who contributes the genetic material is considered the halachic mother. They base their reasoning on various Talmudic sources, including the Gemara that states that there are three partners in the formation of a child. God provides the soul, and the mother and father each provide their genetic materials. One posek recently told me that in his opinion this argument makes the most sense and therefore there is no need for a more direct talmudic source.
However, many poskim disagree and claim that the woman who gives birth to the child is the mother. We will discuss some of their sources next week.

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