The Establishment of Maternity & Paternity in Jewish and American Law
Michael J. Broyde
III. The Establishment of Maternity and Surrogate Motherhood
A. Jewish Law
According to Jewish law, maternity, like paternity, is irrevocably established as belonging to the natural parent. It is beyond the power of a court of law to rearrange the parent-child relationship to create a parental relationship which mirrors the custodial one. Although it is true, as shall be shown later, that certain rabbinically created institutions associated with parenthood are transferred when custody is transferred, all biblically mandated duties, rights, obligations, and prohibitions of motherhood are uniquely the natural mother's and cannot be diminished by the transfer of custody.108 The first type is that of the now famous Baby M109 case. This occurs when a woman provides the ovum and her uterus to carry the fetus to term. The father provides his sperm. The result is a child conceived through artificial insemination. The father and his wife agree to raise the child as their own, and the mother agrees to waive her custody rights in favor of the sperm provider and his wife.110 The "surrogate" mother is the genetic mother as well as the person in whom ovulation, conception, pregnancy, and birth occur.
A second type of case involves the donation of an ovary to a woman whose ovaries are not functioning. In this case, the child conceived from such a donation is genetically related to the donor, but is the product of ovulation, conception, pregnancy, and birth from the surrogate111 mother. A third case occurs when a single egg is removed from the genetic mother and implanted in the surrogate mother. Conception then occurs in the surrogate mother, or, more likely, in a test tube. Although ovulation occurs in the genetic mother, the surrogate mother again carries the child to term and gives birth to it. A fourth type of case is that of a fetal transplant. The genetic mother's ovum is naturally fertilized. The fetus is then transferred into the surrogate mother's uterus. The surrogate mother carries the child to term. The child is genetically identical to its genetic mother.
According to Jewish law there is no doubt that in a Baby M type case, where the mother is both the genetic and biological mother, she is also the legal mother. Furthermore the sperm provider is the legal father.112 This situation is no different from an artificial insemination case; it is mislabelled a "surrogate" case because of a later agreement to transfer custody, which Jewish law maintains does not affect the law's choice of who is the mother. Thus, while it is possible that the father would be granted custody in such a case, the mother, and not the wife would always have the legal duties of a parent; these duties, while delegable, are never totally alienable from a natural parent. They revert back to her if the delegatee does not fulfill them. The sperm donor's wife, if she was to raise the child, would have the status of adopted mother, with all of the attendant privileges and obligations.113
The remaining three cases are far more difficult than the first one. The question is relatively simple. What factors does Jewish law consider in deciding who is the "mother"? Is it the same for all aspects of motherhood - inheritance, incest and redemption of the first born; or different aspects of motherhood have different criteria?
Although somewhat counter-intuitive, Jewish law does not automatically employ genetics to answer all questions of lineage. This can be generally proven from three examples, each from a different area of law. The first example is from the laws of conversion. According to Jewish law, the rule is that one who converts to Judaism loses all legal ties based upon her genetic relationships, and it is as if she were born anew.114 Accepting this rule, the Talmud acknowledges that according to biblical law, one who converts can marry his mother or sister, or her father or brother, assuming they also convert.115 The rabbis in the time of the Talmud prohibited these marriages only because they feared that people would mock Judaism by saying that converts join Judaism in order to engage in these previously prohibited relationships.116 The rabbis did not prohibit these relationships on the grounds that they involved sexual relations between genetically close relatives.117
The second example of Jewish law's rejection of genetics as entirely determinative is the dispute over whether genetic fatherhood has any legal status in animal husbandry law. A large number of decisors maintain that the law does not recognize any link at all between a male animal and its progeny.118 This is true, according to these same commentators, even though the Bible, when dealing with the prohibition against killing an animal and its child on the same day, says: "a male animal (oto) and its male child (beno) should not be slaughtered on the same day."119 Furthermore, according to these commentators, the refusal to acknowledge the male lineage is true even if one knows with certainty the paternity of the animal.120 A number of decisors disagree and maintain that Jewish law does assign legal significance to fatherhood in animals.121 The Shulchan Aruch leaves this dispute unresolved,122 and mandates that we should conduct ourselves in accordance with whichever is the stricter opinion, depending on the factual scenario.
The third proof comes from the laws of orla. According to Jewish law, it is not permissible to use the fruit growing on a newly planted fruit tree during the first three years of the tree's life.123 Although there is considerable talmudic debate on the topic, all decisors agree that a graft from a tree which is six years old and not obligated in orla, onto another tree two years old and obligated in orla, legally makes the grafted branch part of the two year old tree.124 This is true even though the branches are still growing fruit of the old tree and genetically unrelated to the host.125
Discussions of the last three types of host motherhood have generated a considerable amount of literature among the current periodicals of Jewish law.126 When the topic was first raised, one of the primary sources discussed was a Midrash.127 The Midrash was quoted by the biblical commentary Targum Yonatan ben Uziel on Genesis 29:22, where Dina, Jacob's eleventh child, was born. While commenting on this verse, Targum Yonatan states that originally Dina was conceived in Rachel's womb, but that God transferred her after conception to Leah's, so that Rachel could give birth to Joseph.128 Yet, the Bible still unquestionably refers to Leah as Dina's mother and Rachel as Joseph's mother. This Midrash is directly on point and appears to state authoritatively that she who gives birth to the child is the mother. Many of the early discussions of this subject focus on this Midrash and its other variant readings.129
Although initially this Midrash appears to be dispositive on the issue, it actually suffers from a fatal flaw - it is a midrash. Many commentators object to the deciding of practical legal questions from Aggadic non-talmudic sources.130 These objections are particularly forceful when the Aggadic material is of a non-talmudic origin.131 This is especially true on a topic such as this one where the Talmud is replete with discussions of similar topics.132 Two other problems exist in reference to this particular Midrash: first, it is quoted in the Talmud in a form which does not mention surrogate motherhood,133 which seems to indicate that the Targum Yonatan's version is not accurate. Furthermore, this text appears for the first time in the Targum Yonatan, whose authorship is unknown.134 As more scholarship is generated on the topic of surrogate motherhood, it is unlikely that this Midrash will be dispositive, or even significant, in the ultimate decision of the law.
A number of talmudic sources have been cited as relevant to the issue of surrogate motherhood. The first such piece is located in Yevamot 97b:
Rashi, commenting on the final words of this talmudic passage, states that the two brothers are prohibited from marrying each other's wives since they were born to the same Jewish mother and thus, are related to each other as half brothers, i.e., they have a legally recognized mother in common.137 It is critically important to realize that the law only recognizes the mother as such because she gave birth to these children; her genetic relationship with the children has been legally severed by her conversion - as is the case of any convert who, upon conversion, loses all previously established genetic relationships.138 Thus, it appears, that the Talmud legally recognizes "motherhood" as being established solely because of parturition and birth. Rashi sharpens this point by explaining that these children are Jewish because "this woman is like any other Jewish woman who gives birth."139 The analogy between the talmudic passages dealing with conversion and those dealing with surrogate motherhood indicates that Jewish law determines motherhood based upon birth, at least when conception is legally insignificant, which in a surrogate motherhood case would be when conception occurs in a test tube.
An equally significant proof that birth dispositively determines motherhood can be deduced from a number of other texts dealing with converts and conversion. The Talmud states:140 "Ravah says: If a pregnant gentile converts, when her child is born it does not need a conversion [literally immersion]." The Talmud also states:141 "A pregnant gentile who converts . . . [and has a first born son] this child has the status of a first born vis-a-vis the laws of the first-born [literally the priest]142 but not vis-a-vis any inheritance." There is a significant dispute among the commentators as to the reasons why such a child is born Jewish and does not require conversion. Most commentators adopt the intuitive explanation that the child is Jewish because it is born from a Jewish mother.143 Furthermore, they claim that this statement of Ravah is accepted by both sides of the dispute over whether or not a fetus is part of the mother.144 Thus, they claim the child is Jewish because at the time of birth its mother was Jewish, and not because it itself underwent a separate conversion. This is in harmony with the previous text quoted which also argues for birth as the key time in establishing motherhood when conception is not legally significant.
Nachmanides understands this talmudic section in a different way. He claims that the child is only Jewish because it, itself, underwent an immersion when its mother was immersed.145 This immersion converted both the fetus and its mother. Furthermore, Nachmanides claims that this whole talmudic piece only follows the opinion that a fetus is never legally part of the mother.146 Finally, Nachmanides advances one other novel idea: normally conversion requires first circumcision and then immersion in a mikva (ritual bath); Nachmanides claims that if the order is inverted, the conversion is still valid.147 This final point of Nachmanides is the focal point upon which he is attacked. Many commentators disagree with this point and try to prove that an immersion before circumcision is not valid.148 Thus, they disagree by implication with his whole analysis of this talmudic piece.
This author believes that this dispute is significant in establishing whether Jewish law considers birth as critical for motherhood. If one accepts the position of Nachmanides' opponents, then it follows that birth is definitive in establishing motherhood when conception is legally insignificant. According to these authorities, the birth mother is one's true parent. If one accepts the Nachmanides position, then birth is less significant than conception or even genetic relationships -- they are Jewish because they converted. On the contrary, according to Nachmanides, either conception or genetics fixes motherhood.149 Rabbi Chaim Ozer Grodzinski, in his responsa, also understands the dispute in this manner.150 He states that Nachmanides seems to be of the opinion that conception is the critical time -- and birth only relates back to conception.
Although in the Beit Yosef, Rabbi Caro quotes Nachmanides as being authoritative,151 he does not quote Nachmanides in his work intended to codify the law, the Shulchan Aruch. Rabbi Isserless (Rema), however, does so, and says that "an immersion done before a circumcision is valid but should not initially be done that way; others, however, claim it is invalid."152 The Shach maintains that one should conduct oneself according to the stricter opinion,153 and Rabbi Elijah of Vilna (Gra) holds that the law is actually in accordance with those authorities who disagree with Nachmanides.154 Among the modern day commentators there is considerable disagreement over whether or not the law is actually in accordance with Nachmanides.155
This author believes that the law is, in fact, codified contrary to the position of Nachmanides on the issue of establishing maternity, even if one part of his argument, on inverted order in conversion, is possibly accepted. Nachmanides' stance on maternity can only be accepted by those authorities who also maintain that a fetus is never legally part of its mother (ubar lav yerech imo), which excludes many decisors. Furthermore, many decisors disagree with his position on inverting the order of conversion. Thus, the following commentators clearly disagree with Nachmanides' bottom line position on the establishment of maternity: Maimonides,156 Menachem ben Meir (Meiri),157 Rabbi Asher Ben Yechiel (Rosh),158 Rabbi Shlomo ben Adret (Rashba),159 Tosaphot,160 Rabbi Yom Tov Alashveli (Ritva),161 Rabbi Yosef Habib (Nemukei Yosef),162 and Rabbi Aharon Halevi (Ra'ah).163 Accepting that the law is codified against Nachmanides, it appears that Jewish law focuses on birth, rather than genetic relationship.164
One other source supports the position that conception, rather than birth, fixes motherhood. The Talmud, when discussing the law of first-born asks what the law is if one takes a fetus from one womb and places it in the womb of another. Which womb is excused from the laws of first born?165 The Talmud answers that it does not know the answer to this question (teku). Maimonides explains the question as follows: if one removes a fetus from its mother's womb and places it in the womb of another, it is understood that the conception-mother is excused from having another first born; the question is, is the mother that received that fetus also excused?166 Thus, according to the Maimonides (and none dispute his understanding of this talmudic passage), the person in whom conception occurred is clearly the mother - at least when the fetus is removed within 40 days after conception,167 when its removal would excuse its mother according to the laws of first born.
Rabbi Ezra Bick, in a recent article in Techumin, 168 adds a most important rule to the host motherhood equation. He states, based upon Chulin 70a, a general rule: a fertilized egg, once removed from the womb of its mother, is born and no reimplantation in another womb can change who its mother is - since motherhood is fixed at the time of birth and the baby was born upon removal from the womb. According to this analysis, when ovulation, conception, and birth (removal from the womb) all occur in one person, that one person is the mother and reimplantation or rebirth in another does not create a new mother. Thus, according to Rabbi Bick's analysis, a woman who after conception transfers her fetus to another to carry the fetus to term remains the mother of the resulting child, notwithstanding the fact that the child was carried in another womb.
One important limitation must be placed on this theory's application. The fetus, in order to be considered "born" must be removed from its human mother after at least forty days following conception. Before day forty it is considered "mere water" and is not even considered a fetus.169 Even if one did not accept the forty day rule as applying in this context,170 Rabbi Bick's rule would still not apply until implantation (day 7)171 at the very earliest.
Thus, three rules can be deduced to determine the mother in surrogate or host motherhood cases:
l) If conception occurs in a woman's body, remova1 of the fetus after implantation (and, according to most authorities, after 40 days) does not change the identity of the mother according to Jewish law. The mother would be fixed at the time of removal from the womb and would be the woman in whom conception occurred.
2) Children conceived in a test tube and implanted in a host carrier are the legal children of the woman who gave birth to them since parturition and birth occurred in that woman, and conception is not legally significant since it occurred in no woman's body.
3) Children conceived in a woman who had an ovarian transplant are the legal children of the woman who bore them.172
B. American Law
Although surrogate motherhood is a topic which has generated much interest in the legal, as well as non-legal literature,173 only five174 court opinions have been issued evaluating the appropriate legal response to the institution of surrogate motherhood. Besides the now famous Baby M case in New Jersey, three other courts have issued published opinions concerning surrogate motherhood. These five opinions contain widely divergent views on the legal issues relating to surrogate motherhood in the United States.
The first opinion, Doe v. Kelley,175 issued in 1981, discusses a state's right to regulate monetary payments in surrogate motherhood contracts. In this case, a married couple contracted with an unmarried woman to conceive through artificial insemination of the man's sperm. The woman contractually promised that she would consent to the child's adoption by the father's wife, and that she would waive all custody rights in return for the payment of $5,000 and expenses.176 The issue was whether this type of contract violated the Michigan statute prohibiting the payment of money in connection with adoption or related procedures.177
The court initially acknowledged that the decision to bear or beget children has been held to be a fundamental right, protected under the United States Constitution and cited Maher v. Roe178 in support. However, the court stated: we do not view this right [to have children] as a valid prohibition to state interference in the plaintiff's contractual arrangement. The statute in question, does not directly prohibit [plaintiffs] from having the child as planned. It acts instead to preclude plaintiffs from paying consideration in conjunction with their use of the state's adoption procedures.179
Thus, the court ruled that while it was constitutionally permissible for a woman to be a surrogate mother and artificially inseminated by the sperm of a person she is not married to, it is nonetheless, well within a state's powers to prohibit any of the parties from receiving financial benefit from such conduct.180 The court further stated that the adoption laws of Michigan explicitly prohibit deriving an economic benefit from the transfer or waiver of custody rights.181 Thus, Michigan law prohibits payment as an inducement to waive custody rights in a surrogate motherhood contract.
The second case analyzing surrogate motherhood is a 1986 Kentucky case. This case, Surrogate Parenting Associates, Inc. v. Kentucky,182 was brought to the Kentucky Supreme Court in a procedurally interesting way. The Attorney General of Kentucky challenged the corporate charter of Surrogate Parenting Associates Inc., arguing that the organization was incorporated for illegal purposes - the promotion of surrogate motherhood for pay. He requested that the court revoke the corporate charter of the organization. In response, the court evaluated surrogate motherhood from a number of different perspectives. The court primarily focused on whether surrogate motherhood violated the Kentucky adoption statutes, prohibiting the payment of money as an inducement to a transfer of custody.183
The court stated that it believed that the Kentucky legislature had not intended to prohibit commercial payment in surrogate motherhood contracts in the same manner that they prohibited commercial transactions in adoption.184 The court did note that various protections of the adoption law do apply to surrogate motherhood; for example, the surrogate mother is free to change her mind after she signs the contract and refuses to surrender the baby.185 Nonetheless, the legislature did not intend to totally prohibit the payment of money as an inducement to the waiver of custody in surrogate motherhood cases, as it did in adoption cases.186 This is because in surrogate motherhood cases, the undisputed legal father is the one petitioning the court, rather than a third party who has no apparent interest in the child.187 However, the Kentucky Supreme Court did note that the legislature had the power to regulate surrogate motherhood if it so wished.188
Two judges dissented from this opinion. The first dissent, by Justice Vance, focused on the technical statutory interpretation of the Kentucky adoption statutes. It attempted to demonstrate that the Kentucky legislature intended to regulate surrogate motherhood when it regulated adoption.189 The second, by Justice Wintersheimer, was more policy oriented, claiming that it was repugnant to the morals of the state to allow payment to a woman in return for the waiver of her custody rights. He stated:
He further stated that although he is sympathetic to the plight of infertile couples, it seems no worse than that of couples who wish to adopt.191 The policy against allowing payment for adoption of children should also prohibit payment to a surrogate mother in return for her transfer of custody rights.192
The third case to consider the issue of surrogate motherhood is the 1986 New York case, In The Matter of the Adoption of Baby Girl L.J.193 This case involved a child born to a woman artificially inseminated by a donor who wished to have custody of the child and have his spouse adopt the child. The court discussed two distinct issues. The first concerned the appropriateness of granting custody to the biological father and his wife, rather than the surrogate mother. The second concerned the payment of fees in such a situation.194 The court stated that , when deciding issues of custody, it should be based solely on the best interests of the child.195 The court concluded that on the facts of the case, which were not described, it was appropriate to grant complete custody to the biological father and his wife rather than the surrogate mother.196 It granted this adoption without any visitation rights to the surrogate mother.197 The court noted that it would be improper to decide the custody issue here in any manner other than the "best interest of the child,"198 in order to discourage future surrogate motherhood transactions. Such an action penalizes the one child in front of the court for the benefit of society as a whole. The surrogate court thought the issue was beyond its jurisdiction and that it was statutorily limited to a best interest of the child analysis.199
The court then discussed whether it should permit payment to the surrogate mother.200 It noted that in New York it is a misdemeanor to violate any of New York's adoption statutes,201 and that it is also illegal to transfer or accept compensation in connection with the placing of a child for adoption or to assist, for a fee, a parent, relative or guardian of a child arranging for adoption.202 After reviewing the Michigan and Kentucky cases discussed above, the court stated that the New York statute most closely resembled the Kentucky statute.203 The court agreed with the Kentucky Supreme Court that the legislature did not intend to regulate surrogate motherhood in the same manner that it regulated adoption. It stated:
Thus, the New York court ruled that surrogate motherhood contracts are enforceable in New York to the extent that they provide for monetary payment to one of the parties.
Most recently, there were the two New Jersey opinions of In re Baby M.205 In this case, a father and his wife brought suit to enforce the provisions of the surrogate parenting agreement between the parties which mandated that the surrogate mother transfer custody of the resulting child she bore -- an act which the mother refused to do. Plaintiffs sought to compel the surrender of the infant, to restrain any interference with their custody, and to terminate the surrogate mother's parental rights. The New Jersey Superior Court, in an extremely long, factually detailed opinion, decided the case on grounds radically different from the previous three opinions. It stated that the adoption laws have no bearing on the issue of surrogate motherhood, because the New Jersey legislature did not intend to regulate surrogate motherhood.206 The court maintained that the only legally significant item in the dispute was the contract signed between the two parties which it found to be a valid contract.207
The second section of the opinion dealt with a constitutional analysis of one's right to privacy as well as to have children. The court noted that while there was a constitutional right to conceive, both through coital and non-coital means, contracts between private parties limiting such rights are constitutional even absent a compelling state interest.208 However, within the scope of the constitutional protection are certain rights, beyond which the legislature cannot regulate, absent a compelling interest.209 The court concluded, however, that given the absence of any legislation in New Jersey:
On appeal, the New Jersey Supreme Court, in an opinion written by Chief Justice Wilentz, unanimously reversed almost all of the District Court's opinion.211 The court held that a surrogacy contract was void because it "conflicts with the law and public policy of this State."212 It grounded this statement in its belief that the principles of adoption and custody disputes generally, should be applied in surrogacy cases. The New Jersey Supreme Court accepted the reasoning of the Michigan appellate court case discussed above. The first step in the courts reasoning was that the contract to transfer custody was void. The use of money to facilitate the transfer of custody is illegal213 as is the forced transfer of custody upon birth -- both of these principles can be seen from New Jersey's adoption laws. Accepting that the termination of the natural mother's parental rights was improper, the court stated that Mrs. Stern's adoption of Baby M was a nullity. The court concluded this section stating:
The court then reinstated Mrs. Whitehead's parental rights.
The court then focused on the constitutional issues involved in the case. It extended the constitutional right to procreate to include artificial methods of procreation, including artificial insemination.215 However, as the Michigan case stated, the right to custody of those children is not simply a continuation of the right to procreate. "The custody, care, companionship, and nurturing that follow birth are not parts of the right to procreation; they are rights that may also be constitutionally protected, but that involve many considerations other than the right of procreation,"216 and these rights are adequately protected by the general rules of custody of the state of New Jersey.217 Thus, the New Jersey Supreme Court opted for the adoption/custody model of surrogate motherhood -- totally rejecting the model created by the lower court. In New Jersey, surrogacy contracts are not enforceable, and contracts for payment are arguably criminal. The Court specifically approved of voluntary surrogacy arrangements with no financial remuneration.218
Thus, three different types of analysis have been used in surrogate motherhood cases in the United States. The first type of analysis maintains that adoption legislation is the appropriate model for evaluating surrogacy agreements and that in the absence of specific legislation regulating surrogate motherhood, the courts should apply adoption law as needed. The second denies this; rather it maintains that only key concepts should be incorporated from adoption in order to prevent manifest injustice. Finally, the Superior Court opinion in the Baby M case decided surrogate motherhood issues based on contract law rules and denied that adoption law has any validity in the rules of surrogate motherhood.
C. Comparison and Summary
American law is still in its infancy in analyzing the multiple issues related to surrogate motherhood. Although medical technology has already advanced to the point of ovum transplants,219 American law is still confronting the "easy" case of the first type of surrogacy -- where the surrogate mother is also the genetic mother. The "hard" cases, where the identity of the natural mother is in doubt, have not even been considered. Presumably, as the legal issues are further fleshed out, various legislatures will more closely scrutinize surrogacy, and choose to directly regulate it; this will remove the major issue currently under debate, which is whether surrogacy is analogous to adoption. This author thinks it is likely that legislatures will choose to apply most of the abuse-protecting rules of adoption to surrogacy, perhaps even extending them to discouraging private surrogacy agreements.
Jewish law, on the other hand, is confronted with only a single issue -- who is the natural parent. The "hard" case of Baby "M" poses no difficulty. While very little has been written directly on the topic of what makes a "natural" parent in host motherhood situations, Jewish law is replete with cases of a similar type. It is very likely that Jewish law focuses on two discrete time periods: conception and birth. If conception occurs in a woman, even if the fetus is implanted in another, the place of conception establishes motherhood. If conception occurs in a test tube, Jewish law focuses on birth as establishing motherhood. As always, once parenthood is established, it cannot be changed by a court of law.
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