Published: June 3, 2013
I was 42 when my husband and I began trying to have a child. Three years later, I finally accepted it wasn’t going to happen naturally. We narrowed our options to two: use eggs donated by another woman, or adopt.
We visited a couple who had adopted two children to learn more. As we talked about the lawyer they used, the cost, the probability that the birth mother would change her mind, all I could think about was something the mother told me when we arrived. She said her son, now 9, had reached a rebellious stage, and sometimes when they argued he would yell, “You’re not even my real mother!”
“I wouldn’t be able to handle that,” I told my husband on the way home. We decided to go the donor egg route.
A year and a half later, using eggs anonymously donated by a 22-year-old woman, I gave birth to our son, Eddie. Weighing 7 pounds, 7 ounces, he was the spit and image of my husband. Some said he had my eyes, but I knew that couldn’t be true. He has none of my genetic material.
It bothered me, but I told myself nature is only half the equation. I would contribute greatly on the nurture front. And of course our baby would be Jewish, given that I am. Under Jewish law, a baby’s religious identity is determined by his mother.
Or so I thought.
Since the 1990s, the consensus among Jewish authorities has been that the bearing mother, not the woman who provided the gametes, is the child’s mother. But recently the pendulum has begun to swing the other way. Some rabbis in Israel now say if the donor is not Jewish, then the child is not Jewish. Opinions coming out of Israel carry a lot of weight.
“If the egg is from a non-Jew, then the DNA is from the other person,” said Rabbi Shaul Rosen, who founded A TIME, a support network for infertile Jewish couples. “In order for that child to be Jewish, it would have to go through a conversion ceremony like any other non-Jew.”
After hearing that, I was in tears. It’s not a question of whether authorities like Rabbi Rosen find egg donation acceptable. It’s that they don’t think I’m the mother of my own child.
“In the last year or two, there are some in the Orthodox world in Israel who have begun to take the issue in another direction,” said Rabbi Elliot Dorff, a former chairman of the law and standards committee of the Rabbinical Assembly, which governs Conservative Judaism. Jewish authorities are finding evidence in the Scriptures to support both arguments: that the egg donor is the mother and that the birth mother is the mother.
So Rabbi Kenneth Brander, the dean of the Center for the Jewish Future at Yeshiva University in New York, has suggested a pragmatic solution for children of in vitro fertilization: If any of the participants in the equation are not Jewish, the child should go through a conversion ceremony anyway. For infants, that requires immersion in a mikvah, a religious bath, and boys must be circumcised.
“I don’t think there’s final closure on the opinions yet, and I think it’s important for one to be cautious,” Rabbi Brander said. “I would hate to give someone advice that left them outside the pale of everyone’s definition of who’s a Jew.”
For some, that’s hardly a solution. Rabbi Dorff once counseled a man whose child was conceived by using a non-Jewish surrogate. He told him to have his child go through a conversion ceremony. The man refused, saying a conversion ceremony would confirm there were questions about the child’s parentage, and they needed to feel the child was truly theirs.
J. David Bleich, an Orthodox rabbi who teaches Jewish law ethics at the Benjamin N. Cardozo School of Law at Yeshiva, believes the problem is even more complex. If motherhood involves giving a child your DNA and giving birth to him, and if science has allowed us to bifurcate those two roles, perhaps we have created two mothers, he said. If so, then for the child to be Jewish, both mothers must be Jews.
Moreover, there’s a prohibition in Jewish law against suppressing parental identity, for fear that people may marry family members and unwittingly commit incest. Yet women who donate eggs often do so anonymously. In theory, such a procedure would be prohibited under Jewish law, just as closed adoptions are. Rabbi Bleich finds the issues so complicated, he discourages in vitro fertilization altogether.
There’s been no clear decision on IVF motherhood based on Halakhic law, which governs Jewish life. And Jewish parents have been obtaining opinions about this issue case by case. Given these factors, the most important thing we can do is not to cast aspersions on the children born of surrogates and donated eggs, said Rabbi Gideon Weitzman of the PUAH Institute, which provides infertility counseling.
“We don’t want people to say, ‘My child is more or less Jewish than your child,’ ” Rabbi Weitzman said.
It would be easier if Jewish law followed the secular American model. Rabbi Michael J. Broyde, a law professor at Emory University, said California and many other states loosely determine motherhood by motive or intent: Which woman wants the baby — the donor or the birth mother?
“When a woman is pregnant and walks into a hospital and goes into labor and gives birth to a baby, you know what we call her? Mommy,” said Rabbi Broyde, who is a judge with the Beth Din of America, an American Orthodox rabbinical court.
The other night, I was making dinner and my husband had taken our son for a walk. After about half an hour, I heard our screen door opening and the patter of toddler feet running toward the kitchen.
“Muh-MAH!” Eddie said as he ran into my arms. I should have just asked my son who his mother is. He’s known all along.