Published November 16, 2009
In our continuing review of the case of Sean and Carolyn Savage and the child that she carried to term, we are discussing issues regarding halachic maternity. In the theoretical case that such a baby would be born to a Jewish couple, who would be considered his halachic mother?
Last week we discussed the reasoning of those who believe that the genetic mother is also the halachic mother, regardless of who actually carries and delivers the baby. In the case of the Savage family, she was accidently impregnated with another couple’s embryos during an IVF cycle. According to this reasoning, the genetic mother would be the actual mother of the child that Carolyn Savage recently delivered.
However, there are dissenting halachic opinions that posit that the birth mother is the halachic mother; they bring a number of proofs for this position.
One source is the Mishna regarding the case of a young Orla tree that is grafted to an older non Orla tree (we have previously discussed this mishna in our review of fertility preservation and ovarian grafting). Even though the young tree was less than three years old (pre-grafting), the fruit grown post-grafting is not considered to be orla, since it is considered to be part of the host tree. Specifically, the fruit has grown and been nourished solely by the host tree.
Similarly, once the woman receives the egg and becomes its sole source of nourishment and growth, the egg loses its independent identity and becomes part of her. Therefore, she should be considered the halachic mother.
Another fascinating source is the case of Rachel and Yosef. The Gemara (in B’rachot 60b) discusses whether one can pray that the gender of their unborn child be changed. The Gemara notes a precedent in the case of Dina, Leah’s daughter. Dina’s name means “to be judged”. The Gemara explains that Leah understood that Yaakov would have only 12 sons. She herself had already had 6 of them and each maidservant had 2 sons. She also knew through Ru’ach HaKodesh that her unborn child would be a boy.
Were Leah to give birth to another son, Rachel would be left with the opportunity to have only one son, less than either of the maidservents. Leah “judged herself” and determined that she would pray for the baby’s gender to be changed in order to spare her sister from embarrassment. So she prayed and the fetus was switched from male to female; Dina was born.
The Maharasha, adds that what actually happened was that both Rachel and Leah were pregnant at the same time. Leah with a boy and Rachel with a girl. Leah’s prayers resulted in the exchange of the unborn children. Leah gave birth to Rachel’s genetic child and Rachel gave birth to Leah’s.
It is clear from the Torah that Yosef was Rachel’s son, even though he was the genetic child of Leah. According to this opinion, it is clear that the determining factor in motherhood is giving birth.
Next week we shall see one other opinion.
The Puah Institute for Fertility and Gynecology in Accordance with Halacha is based in Jerusalem and helps couples from all over the world who are experiencing fertility problems. Puah offers free counseling in five languages, halachic supervision, and educational programs. Puah has offices in New York, Los Angeles and Paris. To contact the Puah Institute please call 1-800-071111 in Israel or in the US 718-336-0603. website: http://www.puahonline.org
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