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The Establishment of Maternity & Paternity in Jewish and American Law
Michael J. Broyde

V. Conclusion

When surveying the establishment of parenthood and parental status in both American and Jewish law, a number of methodological conclusions can be drawn. The most significant feature in Jewish law is its methodological consistency for dealing with questions of maternity, paternity, and parental status. Jewish law focuses on immutable relationships, easily ascertainable and without any subjective elements of court judgment. Paternity is irrevocably established by being the biological and genetic father. Even in the relatively difficult case of artificial insemination, Jewish law looks to objective criteria, even if there is a dispute over which objective criteria should control. Jewish law does not accept the American approach of looking at various fact-specific equities, such as estoppel between the litigants, or consent to various actions, or the presence of an adopted child whose custodial situation is apparently not in harmony with the legal parental situation. Jewish law fixes on unchangeable paternity established at birth.

The same can be noted about maternal relationships. Jewish law immutably establishes that the natural parent is the mother. In the case of surrogate motherhood, motherhood is fixed by determining when conception occurred, and where that is not legally dispositive, as in test tube conception, where birth occurs, nonetheless Jewish law bases its establishment of motherhood on objective, rather than subjective, criteria. American law has historically rejected these criteria and maintains that parenthood can be totally transferred by the courts, and that the equities of each and every situation require a different result. This is true in the establishment of both maternal and paternal relationships. Courts do not hesitate to rule in light of the equities and have even stated that transfer of custody is the appropriate remedy for a breach of contract.

The differences between American and Jewish law are highlighted when contrasting attitudes towards adoption. Jewish law, while encouraging the raising of parentless children, denies that adoption can transfer parental rights and duties from the natural parent to another person. On the other hand, American law focuses on a wider range of subjective criteria such as consent or abuse, and uses a "best interest" of the child form of analysis.263

Thus, when surveying the establishment of parenthood and sexual status a concrete difference in methodology between Jewish and American law appears. Jewish law is objective and unchangeable. It emphasizes broad systemic concerns, and is willing to have apparently anomalous situations, such as children being raised by people who are not their legal parents, in return for theoretical consistency and ease in the applications of its rules. On the other hand, American family law focuses on the equities of the parties before the court. If any particular result on those facts is unjust, the court will transfer parental rights or create a more equitable situation for the litigants. The systemic uniformity, which is sacrificed through the application of different standards to analytically identical problems, is apparently not a significant force in American law.

The approach of Jewish law to these topics is instructive in various ways. While justice to the litigants and the promotion of equity to the parties is a valuable goal, consistency on a more global basis has many virtues. Inconsistency of methodology in similar cases, and rules too complicated to be applied, do not promote the interests of justice on a societal scale. Jewish law has clearly opted for simplicity of its fundamental rules in the belief that this will promote justice on a broader societal scale. That approach is perhaps one that American law should contemplate.

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