(Spikebrennan via Wikimedia Commons)
The subject of surrogacy has been examined by Jewish scholars, mainly rabbis, for thousands of years. The Jewish belief system of ethical values incorporates two independent and seemingly disparate thoughts. The first is the obligation to be fruitful and multiply and to fill the earth, and the second is the obligation to free the captives, to actively engage in the redemption of those who are enslaved. In modern context, to free the captives is the fight to end human trafficking, and surrogacy has been identified as a form of human trafficking. An examination of how these two elements of Jewish core beliefs, once given ethical attributes, interface can hopefully open discussion in the Jewish community.
Genesis 1:28 commands us be fertile and increase. Jewish tradition considers it to be the first of the 613 commandments of the Torah. Again, after the flood, Noah is enjoined, in Genesis 9:1, to be fruitful and multiply. In this context, it stands for regeneration of life after death-dealing disasters.
In biblical times, infertility or barrenness in women spoke to, among other things, the values and concerns of an agrarian society requiring manpower to work the land and tend to the flocks. The need to people the land and have heirs to inherit property was of great importance. Adoption and polygamy were acceptable practices. The Jewish matriarchs, Sarah, Rebekah and Rachel, all were infertile prior to God’s intercession. The significance of having a child was so valued that the Divine presence saw to the continuation of the lineage. Handmaids bore children, fathered by the patriarchs, when their wives suffered from infertility. The surrogates for the biblical matriarchs bore the children; however, as the Bible stories tell us, relational conflicts ensued.
Jewish tradition finds connection from one mitzvah to another, from one transgression to the next. How does this fit with the subject of surrogacy and how it is perceived today? Surrogacy can certainly be a dimension of human trafficking, a form of modern-day slavery where people profit from the control and exploitation of others. As defined by Canadian federal laws, victims of human trafficking include children involved in the sex trade, adults aged 18 or over who are coerced or deceived into commercial sex acts, and anyone forced into different forms of “labour or services,” such as domestic workers held in a home or farm workers forced to labour against their will. In many countries, the practice of commercial surrogacy can be indistinguishable from the buying and selling of children, and meets the criteria of human trafficking.
Altruistic or compassionate surrogacy is legal in Canada, but it is definitely illegal to pay a surrogate mother for her services. The Assisted Human Reproduction Act prohibits the provision or acceptance of financial consideration to a woman for acting as a surrogate. However, it is legal to reimburse a surrogate mother for her reasonable expenses incurred as a result of surrogacy. In the province of Quebec, the Quebec Civil Code has not allowed for surrogacy agreements. Recent case law has changed the rights for couples to engage in surrogacy agreements, paving the way for legislative change in the future.
Jewish law has been forced to evolve as reproductive technologies have impacted family, parent(s) and child(ren). Rabbinical authorities have had to apply halachic analysis and interpretation to modern technologies including reproductive technology. Since the 1970s, there has been discussion, starting with the subject of artificial insemination. Sperm donation, ovum donation and surrogacy are the three ways for an infertile couple to become parents. Legal contractual obligations are undertaken.
Opposition to surrogacy was raised by Rabbi Immanuel Jacovits, chief rabbi of the United Hebrew Congregations of the Commonwealth from 1976 to 1991. In his 1975 publication Jewish Medical Ethics, he argued that to use another person as an incubator and then take from her the child that she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity. It is not the technology that concerned him; rather, the social and ethical implications of the act of medical reproductive intervention.
In 1977, Rabbi Elie Kaplan Spitz acknowledged that ethical problems can arise with surrogacy when the offspring has no relationship with its birth mother. The status and rights of a surrogate vary among geographical localities based on the laws of the land which, increasingly, form the basis of rabbinical discourse.
The Committee on Jewish Laws and Standards of the Rabbinical Assembly provides guidance to the Conservative Jewish movement in matters of halachah. In 1984, Rabbi David Lincoln’s guidance was accepted, citing surrogacy as a “mitzvah-blessing so great that we should not deny couples of this opportunity.” By 1988, the committee concluded that the mitzvah of parenthood is so great that ovum surrogacy was permissible.
Rabbi Prof. Aaron Mackler offered his opinion that surrogacy could not be recommended, as he believed that maternal status is determined by gestation and birth, and that the danger of commodification of the child is real and present. His thoughts are echoed by Rabbi Prof. David Golinkin who, in a response published by the Schechter Institutes in 2012, redirected childless couples to adoption. He stated, “anyone who raises an orphan in his home, Scripture considers it as if he has given birth to that child.”
Many Jewish women in the latter part of the last century, in response to the Holocaust, felt an added incentive to be fruitful, like Noah’s kin in biblical times, in order to create a continuance of their ethnic identity. Therefore, Jewish women could be cast in the role of breeders whose purpose was the security of the Jewish ethnic identity. It is possible that the fear of annihilation created a psychological response that welcomed any safe method of family creation. It is also possible that this fear is now embedded in the Jewish community’s psyche as a modern response to fulfilling the biblical injunction. As such, there might be a greater willingness for women to look for alternative methods of family creation. Being fruitful so that your family will continue now speaks to procreation through natural family births, adoption and surrogacy.
It can seem problematic to apply the label of exploitation to any part of the surrogacy agreement. In commercial surrogacy, the birth mother receives a commission for her service, beyond her health-care, lodgings and clothing expenses and potential lost income. Is there any coercion for these mainly middle-class women to engage in surrogacy for financial rewards (not financial needs)? However, what needs recognition by Canadians is the state of surrogacy around the world. There is much cruelty and abuse resulting in significant pain and suffering of birth mothers. Baby-breeding farms do exist. International surrogacy agreements dissolve, leaving newborns stateless.
There is a body of literature that recognizes attachment issues for the gestational surrogate mother to her birth child. Developing an emotional bond with a baby during pregnancy, knowing that, after birth, all contact and rights will be relinquished can cause psychological distress. During the nine months of gestation, the birth mother bonds with and becomes emotionally attached to the baby growing inside her. This is a normative emotional response and it is in conflict with the rational understanding of the surrogacy process.
Jewish law recognizes the birth mother as the legal mother. Although this status can be waived and national laws allow for the transfer of newborn children through legal contractual vehicles, ethical and moral consideration should be given to the surrogate. It is fundamental, as a Jewish value, to care for those in need. If the surrogate has unresolved needs after giving birth, they should be acknowledged and resolved, as she is not only a production vessel. Is there a mechanism to ensure that the surrogate is not trapped or enslaved in a state of ongoing post-partum depression? Education for the new parents, as a component of the contract, on the surrogate’s needs beyond the physical could have value. Judaism recognizes women as equal to men in the eyes of God, according to the Torah. Valuing the birth mother will assure a fair process.
Addressing the subjects of infertility and parenthood in today’s context brings forward the changing demographics of families, their structure and roles. Indeed, the definitions of family, marriage, spouse, men’s and women’s rights and obligations within the family have made a paradigm shift. Now, same-sex Jewish couples and single people can choose surrogacy as a method of family development. Rabbis’ seeming silence on this issue is, to some, a problem, as they see the rabbis as having acquiesced to the law of the land in regards to the legitimacy of surrogacy.
Surrogacy in our North American context appears to be a mainly benign and favourable solution for those who want to create or enlarge their families. Still, caution must be taken when embarking on this process of family creation to ensure that there is no pressure from external interest bodies on any parties in the surrogacy relationship. Consideration of the potentially negative aspects of surrogacy needs to come into play in decision-making. Both those wanting a child and the surrogate need to be protected from undue influence and to be provided with appropriate supports.
Surrogacy has become an accepted form of reproductive technology in our modern Jewish life. Denial of its worth is not an option. The ethical values discussed by Maimonides, a great halachic scholar, philosopher and physician who lived in the 12th century, hold true today. He talks about behaviours that need modification, balance and examination for the individual to reach a virtuous state: “In truth, it is the middle way that should be praised.” His guidance is worthy of due consideration. Surrogacy, as a process for the creation of a Jewish family, must be undertaken with a full understanding that the path to be taken has ethical complexities that need to be considered before the journey starts.
Marni Besser is a consultant to National Council of Jewish Women of Canada, human trafficking file.