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Assisted Reproduction

Jewish Law & Egg Donation

We have previously written on the conundrum facing Jewish parents who need the assistance of an egg donor to have a child. Today, the Wall Street Journal looks at this perplexing issue:

Several recent rabbinic rulings on fertility treatment dictate that a child conceived in vitro is Jewish only if the egg came from a Jewish woman.

The issue is most pressing in Israel, in part because tight restrictions on egg donation have long compelled infertile women to procure eggs abroad, where most donors are not Jewish. But decisions in Israel favoring the genetic mother over the gestational one are also likely to increase the already high demand for Jewish eggs in the U.S., and could call into question the religious status of thousands of children born to Jewish women around the world.

Traditional denominations of Judaism believe that faith is passed down from mother to child. Until recently, Orthodox rabbinic authorities widely recognized the birth mother as the parent who confers religious status on her offspring. But at the January conference in Jerusalem of the Puah Institute, Rabbi Mordechai Halperin said that the pendulum of rabbinic opinion has swung toward conferring maternity on the egg donor. Puah provides services internationally to Jews who want to make sure that their fertility treatments are in line with religious law.

In recent years, some well-known rabbinic decision makers—Yosef Shalom Elyashiv, Avraham Sherman and the late Meir Brandsdorfer, among them—have issued rulings that refer to the birth mother as an “incubator” or to her womb as an “external tool.” Though these decisions come from Israel, they hold sway with many ultra-Orthodox Jews elsewhere.

“Judaism is not a genetic religion, for the obvious reason that it accepts converts,” says Edward Reichman, a physician and rabbi who teaches Jewish medical ethics at Yeshiva University. “At the same time, you need a legal definition of maternity, and it does make sense that the genetic contributor would be considered the mother of that child.”

One of America’s most prominent Orthodox rabbinic arbiters, Rabbi Moshe Tendler disagrees. He believes recent rulings out of Israel are misguided: “Genetics provide only the blueprint, and for the next nine months the work is done by the gestational mother,” Rabbi Tendler says. “While the gestational mother is in labor, the egg donor could be on the beach in Miami.” Still, Rabbi Tendler says he performs a handful of conversions every year of babies born to Jewish women using non-Jewish eggs; just so there’s no doubt about the child’s religion.

At the Puah conference, Rabbi Halperin—who is the chief officer of medical ethics for Israel’s health ministry—called on the Israeli parliament, the Knesset, to move swiftly to ease the restrictions on egg donation. Under current law, only women already undergoing fertility treatments can donate their eggs, but a new bill expected to pass the Knesset would allow many more young Israeli women to donate. In an effort to win support from the Knesset’s ultra-Orthodox factions, the bill also has a provision requiring a woman undergoing fertility treatments in Israel to do so only with eggs from a woman of the same faith.

The debate has raised precarious ethical questions. “The notion that there is Jewish blood is offensive,” said Zev Chafets, a former government spokesman who also has written about reproductive medicine in Israel. When people make such a distinction, he says, “‘It’s not about science; it’s about race. It’s saying, ‘We don’t want outsiders, and our criterion is blood.'”

An Orthodox Israeli woman in Jerusalem who gave birth to two children using eggs from a non-Jewish donor in Cyprus told me she feels betrayed by rabbinic rulings that favor genetics. “What’s a horror for us is that the rabbis told us one thing”—that the children born to her would be Jewish—”and now some rabbis are saying something else…. Either it’s kosher or it’s not.”

The woman didn’t want to be identified because she has not yet told her young children how they were conceived, and because she fears that, with their religious status now in question, the youngsters could be expelled from their Orthodox school. She also worries that when it comes time for the children to marry, they could have trouble finding a mate or an Orthodox rabbi who would sanction the union.

“I can’t say her fears aren’t justified,” Rabbi Dr. Reichman says. He can imagine a scenario in which a rabbi hired to officiate at a wedding would ask the engaged couple how they were conceived, to make sure that both parties are Jewish according to the strictest standards.

“When we avail ourselves of this technology, that is one of the consequences—that there will be some people who don’t accept a rabbinic decision, and that could impact the choice of a spouse,” he said. “I hope it won’t be a concern, but realistically, I believe it could be.”

As we have previously written, this ruling will not be welcome news to those in the Jewish community struggling with infertility. There is already a dearth of Jewish donors available. Culturally, Jewish women are more reluctant to donate than many of their counterparts of other faiths. This ruling will only increase the demand for eggs from already hard-to-find Jewish egg donors.

The free market system does not work every well in this field, largely because of the financial caps that are imposed on how much an egg donor can receive (though given recent news accounts, many in the industry are clearly disregarding these limits). As a result, unless some of the cultural obstacles that discourage Jewish women from being donors are eliminated, this ruling will only make it more difficult for Jewish parents suffering from infertility as the demand for Jewish donors will increase while the supply remains constant. Moreover, there are thousands of children already born to Jewish parents from donor eggs whose religious heritage is now in question.


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