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


  1. Assistant Professor, Emory University, Atlanta, GA, 30322; J.D., New York University School of Law, 1988; Ordination, Yeshiva University, 1989. A prior version of this article was published by the National Jewish Law Review; See 3 Nat'l Jewish L.Rev. 117 (1988).

  2. See, e.g., Babylonian Talmud, Yevamot 22a-b; Sanhedrin 53a-54b, 75a.

  3. Babylonian Talmud, Yevamot 21a.

  4. J. Caro, Shulchan Aruch, Even Haezer 15:11.

  5. Jacob ben Asher, Tur, Even Haezer ch. 15 (two boys raised together may marry each other's wife [after one brother dies] without concern about the appearance of impropriety); J. Caro, Beit Yosef, commenting on id.

  6. There are, obviously, cases in which the identity of the father or mother is factually unknown; see J. Caro, Shulchan Aruch, Even Haezer 71:4 and commentaries ad locum, on how Jewish law deals with these circumstances.

  7. The term "rabbinic law" is used in Jewish law to indicate rules of law which were created by the rabbis in a legislative rather than a hermeneutic manner. They are, at least theoretically, changeable. Menachem Ben Meir (Meiri), Beit Ha'bechera, commenting on Avodah Zarah 35a.

  8. The term "biblical law" is used in Jewish law to indicate rules of law, either explicit in the Bible or derived from Biblical sources. There is some dispute as to which forms of derivation create biblical law. Compare Maimonides, Sefer Ha'Mitzvot, Shoresh 2 with Commentary of Nachmanides on id. See generally M. Elon, Ha'Mishpat Ha'Ivri 194-208 (1978).

  9. See infra Part IV.

  10. J. Caro, Shulchan Aruch, Even Haezer 15:2-11.

  11. See M. Feinstein, Igrot Moshe, 1 Even Haezer 10, 71; 2 Even Haezer 11; 3 Even Haezer 11. For another vigorous defense of his position, see M. Feinstein, Dibrot Moshe, Ketubot 233-48.

  12. There are situations in Jewish law where, even in the course of a sexual relationship, no paternity is established. According to Jewish law, the child of a relationship between a Jew and a Gentile always assumes the legal status of its mother. The child bears no legal relationship to its father. See Babylonian Talmud, Yevamot 22a-b; Jacob ben Asher, Tur, Even Haezer ch. 16. This is equally true in cases of artificial insemination.

  13. M. Feinstein, Igrot Moshe, 2 Even Haezer 11.

  14. Which in normal circumstances would lead to the classification of the child as illegitimate, see J. Caro, Shulchan Aruch, Even Haezer 4:13, and if done intentionally, would mandate the separation of the couple.

  15. Y. Teitelbaum, 2 Divrei Yoel 110, 140.

  16. Id.

  17. See E. Waldenberg, 9 Tzitz Eliezer 51:4.

  18. Id. Rabbi Waldenberg maintains that this conduct violates the laws of marital modesty (dat yehudit). See Babylonian Talmud, Ketubot 72a.

  19. Rabbi Waldenberg, in a recent responsum, prohibited surrogate motherhood on these same grounds. See E. Waldenberg, Test Tube Infertilization, 5 Sefer Asya 84-92 (1986).

  20. Y. Breish, 3 Chelkat Yakov 45-48. Similarly, see Y. Weinberg, 3 Sredai Eish 5.

  21. Y. Breish, 3 Chelkat Yakov 45-51.

  22. Babylonian Talmud, Hagigah 14b-15a.

  23. According to Jewish law, the High Priest may only marry a woman who has never had intercourse before her marriage to him. Leviticus 21:13. See also Maimonides, Mishneh Torah, Sefer Kedusha, Hilchot Issurai Biah 17:13.

  24. This is the near unanimous opinion of the decisors: See O. Yosef, 2 Yabiah Omer, Even Haezer 1:6; Y. Weinberg, 3 Sredai Eish 5; Samuel ben Uri, Chelkat Mechoket, commenting on J. Caro, Shulchan Aruch, Even Haezer 1:6; M. Feinstein, Igrot Moshe 1 Even Haezer 10, 71; M. Klein, 4 Mishnah Halachot 160; E. Waldenberg, 3 Tzitz Eliezer 27:3; Y. Teitelbaum, 2 Divrei Yoel 110, 140; S. Duran (Tashbetz), 3 Responsa 263; Shmuel Purda, Bet Shmuel, commenting on J. Caro, Shulchan Aruch Even Haezer 1:10; J. Ettlinger, Aruch LeNeir, commenting on Yevamot 10; J. Emden 2 Shelat Yavetz 96. It is sometimes claimed that the Turai Zahav (Taz) disagrees with this ; see D. Halevi, Turai Zahav, commenting on J. Caro, Shulchan Aruch, Even Haezer 1:8. This is not necessarily true that the Taz is only referring to the question of the fulfillment of the commandment to have children, and not the establishment of paternity. See generally, Rosner, Artificial Insemination in Jewish Law, in F. Rosner & J.D. Bleich, Jewish Bioethics 105, 111 (1979).

  25. 24 M. Feinstein, Igrot Moshe 1 Even Haezer 10. See D. Halevi, Turai Zahav, commenting on J. Caro, Shulchan Aruch, Yoreh Deah 195 n.7. The original work by Rabbi Peretz has been lost. The authenticity, however, is not in doubt, as this position has been frequently cited in his name. See J. Sirkes, Bayit Chadash (Bach), commenting on Jacob ben Asher, Tur, Yoreh Deah 195; Shmuel Purda, Bet Shmuel, commenting on J. Caro, Shulchan Aruch, Even Haezer 1:10; I. Rozanz, Mishnah Le'Melech, commenting on Maimonides, Mishneh Torah, Sefer Nashim, Hilchot Ishut 15:4.

  26. M. Feinstein, Igrot Moshe, 1 Even Haezer 10; 2 Even Haezer 11; 3 Even Haezer 11.

  27. Id. at 1 Even Haezer 10.

  28. M. Feinstein, Dibrot Moshe, Ketubot 239-43.

  29. M. Feinstein, Igrot Moshe, 1 Even Haezer 10. In this response he advances an alternative explanation of why the child is permitted to marry a priest.

  30. Leviticus 18:20.

  31. Commentary of Nachmanides, Leviticus 18:20.

  32. Y. Teitelbaum, 2 Divrei Yoel 110, 140.

  33. Id.

  34. Id. For Rabbi Feinstein's reply, see M. Feinstein, Dibrot Moshe, Ketubot 238-39.

  35. Id; See supra notes 24-29 and accompanying text.

  36. Id.

  37. 9 Tzitz Eliezer, E. Waldenberg, at 51:4; 3 Tzitz Eliezer 27:1.

  38. See M. Isserless, J. Caro, Shulchan Aruch, Even Haezer 20:1.

  39. E. Waldenberg, 3 Tzitz Eliezer, supra note 15, at 27:1.

  40. Id.

  41. Shapiro, Artificial Insemination, 1 Noam 138-42 (1957).

  42. See Kasher, Artificial Insemination, 1 Noam 125-28, and Y. Breish, Chelkat Yakov 19, at 47.

  43. Y. Breish, at 45-46.

  44. Id. at 48-51. For an earlier articulation of this concept, see Judah ben Samuel of Regensburg Ha'Chasid, Sefer Ha'Chasidim ch. 829 (R. Margolies ed. 1956).

  45. Rabbis Feinstein and Breish kept a quite vigorous written correspondence on these various topics; see M. Feinstein, Dibrot Moshe, Ketubot 232-48.

  46. This Note uses three terms to refer to the theoretically different types of parent:

    1. Custodial Parent: This is the person who is currently functioning as the loco parentis.
    2. Genetic Parent: This is the person whose genetic material is used to initiate life. Currently there must be two genetic parents.
    3. Biological Parent: This is the person with whom the procreative activity that led to the starting of life occurred.

    This last category currently typically overlaps with the genetic parent. It need not. In the case of ovarian or testicular transplant, they would not. In the case of artificial insemination there is no biological father.

  47. See supra text accompanying notes 11-28 for further details.

  48. The reasons that this would be so are beyond the scope of this Note. See generally J. Caro, Shulchan Aruch, Even Haezer 115:1-6 and commentaries ad locum.

  49. 2 Am. Jur. 2d, Adoption 1-2; J. McCahey, M. Kaufman, C. Kraut, D. Gaffner, M. Silverman & J. Zett, 2 Child Custody & Visitation Law and Practice 10.01-03, 11.0(1) (1987); H. Gamble, The Law Relating to Parents and Children 169 (1981).

  50. J. McCahey at 11.02.

  51. S. Tiffin, In Whose Best Interest: Child Welfare Reform in the Progressive Era 141 (1982).

  52. Babylonian Talmud, Hagigah 14b-15a. The Talmud deals with the possibility of birth without sexual intercourse, and mentions artificial insemination as a possibility. See supra text accompanying notes 21-28.

  53. See Carey v. Population Servs. Int'l., 431 U.S. 678, 685-87 (1977); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). It is likely that the Supreme Court would extend the protections of Carey and Eisenstadt to procreative actions by married couples outside of intercourse. New York State has, however, explicitly extended the protection granted to include all consensual heterosexual sexual activity between adults. See People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980).

  54. 68 Cal. 2d 280, 437 P.2d 495, 66 Cal. Rptr. 7 (1968).

  55. Id. at 283, 437 P.2d at 497, 66 Cal. Rptr at 9.

  56. Id. at 285, 437 P.2d at 499, 66 Cal. Rptr. at 11.

  57. Id. at 288, 437 P.2d at 501, 66 Cal. Rptr. at 13.

  58. Id. at 283, 289, 437 P.2d at 497, 501-02, 66 Cal. Rptr. at 9, 13. Delaware, relying on an opinion by Lord Mansfield, has ruled that this presumption is almost irrebuttable. See F. v. R., 430 A.2d 1075, 1077 n.2 (1981), quoting Goodnight v. Moss, 98 Eng. Rep. 1257 (1777) ("The law of England is clear that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage".) Many years earlier, Jewish law adopted a similar position. See M. Isserless, glosses on J. Caro Shulchan Aruch, Even Haezer 4:29.

  59. 68 Cal. 2d at 289, 437 P.2d at 501-02, 66 Cal. Rptr. at 13-14.

  60. 182 N.J. Super. 102, 440 A.2d 64 (1981).

  61. Id. at 109, 440 A.2d at 68.

  62. 74 Misc. 2d 99, 345 N.Y.S.2d 430 (1973).

  63. Normally, consent of both parents is needed for adoption in New York. id. at 101, 345 N.Y.S.2d at 431 (citing N.Y. Dom. Rel. Law 111 (McKinney 1972)).

  64. Id. at 105, 345 N.Y.S.2d at 434-35.

  65. See, e.g., Noggle v. Arnold, 338 S.E.2d 763, 177 Ga. App. 119 (1985); R.S. v. R.S., 670 P.2d 923, 9 Kan. App. 2d 39 (1983); Mace v. Webb, 614 P.2d 647 (Utah 1980); In re Custody of D.M.M., 404 N.W.2d 530, 137 Wis. 2d 375 (1987); L.M.S. v. S.L.S., 312 N.W. 2d 853, 105 Wis.2d 118 (1981).

  66. 291 S.C. 389, 353 S.E.2d 877 (1987).

  67. 182 N.J. Super. 102, 440 A.2d 64 (1981); see supra notes 59-60 and accompanying text.

  68. 15 Misc. 2d 260, 184 N.Y.S.2d 178 (Sup. Ct. 1958).

  69. 15 Misc. 2d at 265, 184 N.Y.S.2d at 182.

  70. Id.

  71. 41 Misc. 2d 886, 246 N.Y.S.2d 835 (Sup. Ct. 1964).

  72. Id.

  73. 90 A.D.2d 434, 457 N.Y.S.2d 488 (App. Div. 1982).

  74. Id. at 441, 457 N.Y.S.2d at 493.

  75. Id. at 440-41, 457 N.Y.S.2d at 492.

  76. Id.

  77. Id. at 439, 457 N.Y.S.2d at 491.

  78. 39 Misc. 2d 1083, 242 N.Y.S.2d 406 (Sup. Ct. 1963).

  79. 190 Misc. 786, 78 N.Y.S.2d 390 (Sup. Ct. 1948).

  80. Adoption, unlike many other areas of family law is totally of statutory origins; no common law adoption exists. See infra text accompanying notes 244-52.

  81. 39 Misc. 2d at 1087, 242 N.Y.S.2d at 411.

  82. Id.

  83. T. v. T., 484 N.Y.S.2d 780, 782, 127 Misc. 2d 14, 16 (Fam. Ct. 1985); R.S. v. R.S., 670 P.2d 923, 925, 9 Kan. App. 2d 39 (Ct. App. 1983); L.M.S. v. S.L.S., 312 N.W.2d 853, 855, 105 Wis. 2d 118 (Ct. App. 1981); see also supra note 57.

  84. 83 See Note, The Need For Statutes Regulating Artificial Insemination by Donors, 46 Ohio St. L.J. 1055, 1062 n.79 (1985) [hereinafter Statutes].

  85. Id. at 1063-64; only Oregon explicitly allows the artificial insemination of unmarried women. See Or. Rev. Stat. 677.365(1) (1983).

  86. Statutes, supra note 83, at 1063 nn. 94-100.

  87. Id. at 1063-64; Unif. Parentage Act 5, 9B U.L.A. 579 (1979) [hereinafter UPA].

  88. Statutes, supra note 83, at 1062-64; UPA at 5.

  89. Ga. Code Ann. 19-7-21 (1982). It appears likely that criminal sanctions would not be constitutional. See supra text accompanying notes 50-51.

  90. UPA, supra note 86, at 5; Statutes, supra note 83, at 1061-65.

  91. UPA, supra note 86, at 5. For a list of the state by state modifications of 5, see UPA at nn. 1-12.

  92. Cal. Civ. Code 7005 (West 1983); Colo. Rev. Stat. 19-6-106 (1986); Minn. Stat. 257.56 (1982); Mont. Code Ann. 40-6 106 (1987); (12) Nev. Rev. Stat. 126.061 (1985); Wash. Rev. Code 26.26.050 (1986); Wis. Stat. Code. 767.47, 891.40 (1981); Wyo. Stat. 14-2-103 (1986).

  93. La. Civ. Code. Ann. art. 188 (West 1985).

  94. 152 N.J. Super. 160, 377 A.2d 821 (Juv. & Dom. Rel. Ct. 1977).

  95. Id. at 167, 377 A.2d at 825.

  96. 95 Others have commented that the court fundamentally misunderstood the facts of this case and that this case involved a lesbian woman who asked a homosexual man if he would donate sperm to her so she could inseminate herself. They attribute the result in this case to a fundamental lack of understanding of the lesbian sub-culture. Lesbians and homosexuals are forced to use artificial insemination since they cannot adopt. Wadlington, Artificial Conception; The Challenge for Family Law, 69 Virg. L. Rev. 465 n. 111 (1983.)

  97. 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (App. Div. 1986).

  98. Id. at 392, 224 Cal. Rptr. at 534.

  99. Id.

  100. Id.

  101. Annas, Fathers Anonymous: Beyond the Best Interests of the Sperm Donor, 14 Fam. L.Q. 1 (1980).

  102. Id. at 1-3.

  103. Lehr v. Robertson, 463 U.S. 248 (1983); Santosky v. Kramer, 455 U.S. 745 (1982); Zablocki v. Redhail, 434 U.S. 374 (1978); Quilloin v. Walcott, 434 U.S. 246 (1978); Roe v. Wade, 410 U.S. 113 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942); Meyer v. Nebraska, 262 U.S. 390 (1923).

  104. Moore v. City of East Cleveland, 431 U.S. 494 (1977); See Wilkinson & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L. Rev. 563, 591-95 (1977).

  105. 152 N.J. Super. 160, 377 A.2d 821 (1977).

  106. One final artificial insemination type case exists. In the case of In Re Adoption of McFadyen, 108 Ill. App. 3d 329, 438 N.E.2d 1362 (1982), the court dealt with a unique type of artificial insemination. In that case the court was confronted by what appeared to be an agreement by the husband that the wife could engage in extramarital intercourse for the purposes of conception, since he, the husband, was infertile. The wife did engage in extramarital intercourse, and bore a child, whom she later placed for adoption without consulting the husband. When the husband realized that this had occurred, he immediately attempted to have the adoption voided, arguing that his consent as the father was necessary. One of his arguments equates his agreement that his wife could engage in sexual relations outside of marriage for the purposes of bearing a child to a husband's consent to the artificial insemination of his wife. The husband specifically stated that his wife's extramarital affairs were "their type of artificial insemination" as well as "artificial insemination by means of a surrogate donor's penis." The husband relied on the New York case of In Re Adoption of Anonymous, 74 Misc. 2d 99, 345 N.Y.S.2d 430 (Sup. Ct. 1973), where the New York court ruled that the consent of the custodial father is needed. The court in McFadyen did not resolve the legal issue in this case, but concluded that the husband and wife had not demonstrated to the satisfaction of the court the existence of a surrogate insemination agreement.

    It appears to this author that the husband in this type of agreement is legally estopped from relitigating the issue of support which he has equitably conceded by consenting to his wife's adulterous relationships. It is unclear whether or not the logic of the New York case of In Re Adoption of Anonymous should extend to the case of surrogate intercourse, rather than artificial insemination. It appears likely that in a state with a public policy against adultery, as New York such (N.Y. Penal Law 255.17), a court would rule that consent to intercourse outside of marriage does not increase the legal rights of either party.

  107. Without intending to voice a personal opinion in an area of law upon which the leaders of our generation have commented on, it appears that Rabbi Feinstein's position is the one most widely accepted among those who observe Jewish law in the United States; see I. Jakobovits, Jewish Medical Ethics 248 (1959).

  108. J. Caro,

  109. In re Baby M, A.2d , Slip Op. No. A-39 (N.J.S.Ct. Feb. 3, 1988) (Westlaw, WL 6251). See also infra text accompanying notes 204-17.

  110. This relationship is analogous to, but not identical with, the relationship Jacob had with Bilhah and Zilphah. Genesis 30:3-13.

  111. Purely for the sake of convenience, throughout this section the term "surrogate" will be used in reference to the "mother" who is not the genetic mother.

  112. This assumes that both parents are Jewish. If the mother was not Jewish, the father would not have any of the legal rights or obligations of a father, since, according to Jewish law only a Jewish father assumes the privilege of fatherhood if the child is Jewish. See supra note 11.

  113. See Part IV for a discussion of various aspects of adoption.

  114. See J. Caro, Shulchan Aruch, Yoreh Deah 269:1.

  115. Babylonian Talmud, Yevamot 22a, Maimonides, Mishneh Torah, Sefer Kedusha, Hilchot Issurei Biah 14:1.

  116. Id.

  117. In fact, certain genetically incestuous relationships are still permitted to converts. See Jacob ben Asher, Tur, Yoreh Deah 369.

  118. See Rabbi Alfasi (Rif) on Chulin 27a-b;, Bechorot 17a; Nachmanides, commenting on Chulin 27-a-b; Chulin 78b (in Melchamot); Tosafot, commenting on Chulin 79a (starting with the word ayeel). See also the following commentaries on Leviticus 22:28: Rashi, Onkolus and Nachmanides (all endorse the position of Rabbi Alfasi).

  119. Leviticus 22:28; Hebrew, like all semitic languages, uses different constructions to distinguish between masculine and feminine. See 8 Encyclopedia Judaica 117-24 (1972).

  120. See J. Caro, Shulchan Aruch, Yoreh Deah 16:2.

  121. For a complete list of those who decide this way, see 13 Encyclopedia Talmudit 410 n.20 (1980). Among those who ascribe to this position are: Maimonides, Rabbenu Tam, Rabbi Shlomo Ben Adret (Rashba), and the Mordechai.

  122. J. Caro, Shulchan Aruch, Yoreh Deah 16:2.

  123. Id. at 294:1.

  124. 123 Id. at 294:16; Y. Epstein, Aruch Ha'shulchan Yoreh Deah 294:3, 7-39. The analogy between orla and other transplants was first noted by Rabbi Y. Leibes. See Leibes, Organ Transplants, 14 Noam 28, 90-100 (1970). Leibes quotes a large number of commentators who maintain that a grafted branch assumes the legal status of the plant it is living on even to the point of what blessing to make on it before eating it.

  125. A fourth example where genetics is rejected can be found in the position, taken by a minority of authorities, that the child resulting from artificial insemination does not relate to the genetic father. A few authorities appear to go as far as to maintain that he who injects the sperm is the "father" according to the law. However, almost all authorities reject this position. See supra text accompanying notes 36-41.

  126. See, e.g., Bick, Maternity in Fetal Implants, 7 Techumin 266 (1987); Drori, Genetic Engineering: Preliminary Discussion of its Legal and Halachic Aspects, 1 Techumin 280 (1980); Goldberg, Fetal Implant 5 Techumin 248 (1985); Kilav, Test Tube Babies, 5 Techumin 260 (1985); Warhaftig & Goldberg, Test Tube Babies - Addendum, 5 Techumin 268 (1985); Herschler, Test Tube Babies According to Halakha, 1 Halakha U'Refuah 307-320 (1980); see also infra notes 128 and 131.

  127. The Midrash is a commentary on the Bible written in the tannaitic (first - second century C.E.) period.

  128. See Targum Yonatan, commenting on Genesis 30:21.

  129. See, e.g., J. D. Bleich, Judaism and Healing 92 (1981); but see Letter from Dov Frimer, 20 Tradition 174 (1982).

  130. Aggadic material is material which addresses various issues in a non-legal manner. See also Rackman, The Case of Sotah in Jewish Law: Ordeal or Psychodrama?, 3 Nat'l Jewish L. Rev.49 (1988).

  131. For a very recent statement of this position, see M. Feinstein, Dibrot Moshe, Ketubot 242-43.

  132. See Soloveitchik, Test Tube Babies, 29 Ohr Ha'Mizrach 128 (1980).

  133. See Babylonian Talmud, Berachot 60a. See also M. Kasher, Encyclopedia of Biblical Interpretation, Genesis 30:21-22.

  134. The one thing that is known about this biblical commentary is that it positively was not written by Yonatan ben Uziel, since he wrote only on the Prophets. See Babylonian Talmud, Megillah 3a; See also 4 Jewish Encyclopedia 846-47 (1906).

  135. Which is prohibited in all situations except those permitted by levirate marriages.

  136. I.e., they were conceived before conversion, but born after conversion.

  137. They also have a father in common, but the law does not recognize the genetic father as the legal father since at the time of conception the mother was not Jewish. See supra note 11.

  138. See supra text accompanying notes 113-16 on this topic.

  139. Rashi, commenting on Babylonian Talmud, Yevamot 97b (starting with the words Aval chayavin).

  140. Babylonian Talmud, Yevamot 78a.

  141. Babylonian Talmud, Bechorot 46a.

  142. He must be redeemed for five shekalim (100 gm.) of silver. See Numbers 18:15-16.

  143. See supra text accompanying notes 113-16. It follows from this that if having a Jewish mother at the time of birth makes the child Jewish, then the mother who makes the child Jewish is also its mother with respect to all the other significant aspects of motherhood.

  144. See Tosafot, commenting on Babylonian Talmud, Yevamot 78a (starting with the words ela ha'da'amar).

  145. Nachmanides is quoted in Y. Habib, Nimukei Yosef, commenting on Rabbi Alfasi, Yevamot 16a; he is also quoted in Shlomo Ben Adret (Rashba), commenting on Yevamot 47b-48a.

  146. Nachmanides can only be correct if the fetus is a legally independent entity. See Ellinson, The Fetus in Jewish Law, 66 Sinai 20, 28 (1970).

  147. See Nachmanides, supra note 143.

  148. See Y. Habib, supra note 144 in the name of the Rabbi Aharon HaLevi (Ra'ah). See also S. Meir Ha'Cohen, Siftei Cohen (Shach), commenting on J. Caro, Shulchan Aruch, Yoreh Deah 268:2.

  149. Not surprisingly, this is in harmony with the position of Nachmanides advanced in his commentary on the Bible, see supra text accompanying notes 31-41.

  150. See C.O. Grodzinski, 2 Shealot U'teshuvot Achiezer 29:6; See also 4 Shealot U'teshuvot Achiezer 44.

  151. J. Caro, Beit Yosef, commenting on Jacob ben Asher, Tur, Yoreh Deah 268; see also M. Isserless, Darkei Moshe, commenting on id.

  152. See M. Isserles (Rema), commenting on J. Caro, Shulchan Aruch, Yoreh Deah 268:1.

  153. Siftei Cohen (Shach), supra note 147, commenting on id.

  154. Eliyahu of Vilna, Beurei Ha'Gra, commenting on id. at note 5.

  155. Compare Y. Epstein, Aruch Hashulchan Yoreh Deah 268:11 with Y.A. Landau, Dagul Merevava, commenting on J. Caro, Shulchan Aruch, Yoreh Deah 268.

  156. Maimonides, Mishneh Torah, Sefer Kedusha, Hilchot Shechita 12:10.

  157. M. Ha'Meiri, Beit Ha'Bechera, commenting on Babylonian Talmud, Yevamot 78a.

  158. Asher Ben Yechiel (Rosh), commenting on Babylonian Talmud, Bava Kamma 5:2.

  159. Shlomo ben Adret (Rashba), 1 Responsa 1240; see also E. Wasserman, Collected Comments on Yevamot & Responsas of Rashba 39, Responsa n.4.

  160. Tosafot, commenting on Yevamot 78a (starting with the word Ela); Sanhedrin 80b (starting with the word Ubar).

  161. Y.T. Alashevi (Ritva), commenting on Babylonian Talmud, Yevamot 78a.

  162. J. Habib, Nemukei Yosef, commenting on Rabbi Alfasi (Rif) Yevamot 16a.

  163. Quoted in id.

  164. Another source supporting the position that Jewish law recognizes the host mother as the legal mother is the statement by the Talmud and Rashi in Megillah 13a. The Talmud states, in an aggadic (non-legal) discussion, that Esther lacked both a mother and a father and, hence, was raised by her uncle. The Talmud states that Esther's mother died at birth, according to Rashi, the earliest time that motherhood could be fixed. This added proof indicates that in Jewish law, birth is at least as important as genetics. Arguably this source is not dispositive for two reasons. First, the Talmud is analyzing the issues in a non-legal manner, but rather in a midrashic one. Second, even if the Talmud is referring to parenthood in a legal sense, it might be referring to it in the sense of the obligation to care for the child and not in terms of technical "motherhood".

  165. Babylonian Talmud, Chulin 70a. According to the law of first born this kind of discharge normally excuses the next child born from the rules of first born. J. Caro, Shulchan Aruch, Yoreh Deah 305:22-23.

  166. Maimonides, Mishneh Torah, Sefer Karbanot, Hilchot Bechorot 4:18.

  167. Or the 40 day equivalent for animals. See J. Caro, Shulchan Aruch, Yoreh Deah 315:7.

  168. Bick, Fetal Implants, 7 Techumin 259 (1987).

  169. Babylonian Talmud, Nidah 30a.

  170. A number of authorities understood the forty day rule differently; See generally, J.D. Bleich, 1 Contemp. Halachic Problems 339-47 (1977).

  171. See D. Danforth, Obstetrics and Gynecology 297 (4th ed. 1982).

  172. Additionally, since the Talmud leaves the question undecided (teku), the host mother would not have to pay the 5 shekalim for the redemption of the first born, although this issue is not beyond dispute. See J. Caro, Shulchan Aruch, Yoreh Deah 305:13. According to the position of Rav Hai Gaon, in cases of doubt, half payment is to be made. See Tosafot, commenting on Babylonian Talmud, Bava Kamma 62a (starting with the words ato takanat nigzal): Tosafot, in the name of Rav Yitzchak disagrees, id., as does Maimonides, Mishneh Torah, Sefer Nezikin, Hilchot Chovel U'mazik 8:7. See also J. Caro, Shulchan Aruch, Choshen Mishpat 388:7 and especially, glosses of M. Isserles (Rema), on id.

    The laws of inheritance for the first born do not change, however, since they are dependent on the first born of the father and not the mother. See id. at 277:11-13.

  173. See Generally Note , Embryo Transplant, Parental Conflict, and Reproductive Freedom, 15 Hofstra L. Rev. 609 (1987); Note, Litigation, Legislation and Limelight: Obstacles to Commercial Surrogate Mother Arrangements, 72 Iowa L. Rev. 415 (1987); Katz, Surrogate Motherhood and Baby-Selling Laws, 20 J.L. & Soc. Prob. 1 (1986); O'Brien, Commercial Conception: A Breeding Ground for Surrogacy, 65 N.C.L. Rev. 127 (1986); Note Redefining Mother: A Legal Matrix for New Reproductive Technologies, 96 Yale L.J. 187 (1986); Note, Rumpelstiltskin Revisited: The Inalienable Rights of Surrogate Mothers, 99 Harv. L. Rev 1936 (1986); Note, Developing a Concept of the Modern "Family": A Proposed Uniform Surrogate Parenthood Act, 73 Geo. L. J. 1283 (1985); Robertson, Procreative Liberty and the Control of Conception, Pregnancy and Birth, 69 Va. L. Rev. 405 (1983); For the current position of the Catholic Church, see Magisterium of the Catholic Church, Instruction on Respect for Human Life in Its Origin and Dignity of Procreation: Replies to Certain Questions of the Day. 25 (Feb.22, 1987) (Surrogacy is "contrary to the unity of Marriage and to the dignity of the procreation of the human person").

  174. Actually, there are six. The Idaho Supreme Court, in the case of Petition of Steve B.D., 723 P.2d 829, 111 Idaho 285 (1986), incidentally discussed the law of surrogate motherhood. While it could have been quite central to the case, as the facts of the case were almost identical to the Baby M case, the court was sidetracked into a dispute over the standard used to determine custody generally. The majority used this case as a vehicle for overruling the case of In re Anderson, 589 P.2d 957, 99 Idaho 805 (1978), which established the right of a parent generally to withdraw consent to giving up a child for adoption. The majority overruled Anderson, and established that consent to adoption is irrevocable. The court simply ignored the fact that this case involved surrogate motherhood, and decided it as it would any adoption case. Thus, at least in dicta, the court ruled in accordance with the Michigan case discussed above, see infra text accompanying notes 174-197, that adoption is the appropriate model in surrogate motherhood cases.

  175. 106 Mich. App. 169, 307 N.W.2d 438 (Ct. App. 1981), cert. denied, 459 U.S. 1183 (1983); see also Syrkowski v. Appleyard, 333 N.W.2d 90 (Ct. App. 1983), rev'd 420 Mich. 367, 362 N.W.2d 211 (1985).

  176. Id. at 172, 307 N.W.2d at 440.

  177. See Mich. Comp. Laws 710.54 & 710.69.

  178. 432 U.S. 464 (1977).

  179. 106 Mich. App. at 173-74, 307 N.W.2d at 441.

  180. Id.

  181. Id. The court noted that it is likely that the preclusion of economic gain functionally prevents such conduct from ever being done. See generally Posner, The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59 (1987).

  182. 704 S.W.2d 209 (Ky. 1986).

  183. 704 S.W.2d at 213 (construing Ky. Rev. Stat. Ann. 199.601(2) and 199.500(5) (1982) (Supp. 1986)).

  184. Id.

  185. Id. at 213.

  186. Id. at 211-12.

  187. Id. at 212.

  188. Id. at 214.

  189. Id.

  190. Id. at 214-15.

  191. Id. at 215.

  192. Id.

  193. 132 Misc. 2d 972, 505 N.Y.S.2d 813 (Sur. Ct. 1986).

  194. Id. at 973-74, 505 N.Y.S.2d at 814-15.

  195. Id. at 974-75, 505 N.Y.S.2d at 815.

  196. Id.

  197. Id.

  198. Id.

  199. Id. at 978, 505 N.Y.S.2d. at 818. This balancing of issues, it thought, belonged to the legislature.

  200. Id. at 974-79, 505 N.Y.S.2d at 815-18.

  201. Id. (construing N.Y. Soc. Serv. Law. 389 (McKinney 1983)).

  202. Id. (construing N.Y. Soc. Serv. Law 374(6)).

  203. See supra text accompanying notes 181-191.

  204. 132 Misc.2d at 978, 505 N.Y.S.2d at 817-18.

  205. In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987), rev'd. A.2d , Slip Op. No. A-39 (N.J.S. Ct. Feb 3, 1988) (Westlaw, 1988 WL 6251). .

  206. Id. at 372-73, 525 A.2d at 1157.

  207. The court then analyzed this contract in classical contract law terms. It stated that the contract was not a contract of adhesion, as it was negotiable in the full sense of the word, and it was willfully signed with consideration. Id. at 376, 525 A.2d at 1159. The court also disagreed with the defendant's contention that the contract was unconscionable. Id. at 376-77, 525 A.2d at 1159-60. It also disagreed with the surrogate mother's contention that the contract price of $10,000 was statutorily too low and would always be unconscionable. The court stated that inequity, unless it is of gross magnitude, does not make contracts unconscionable. Id. at 377-78, 525 A.2d at 1160. It further disagreed with the surrogate mother's position that the contract should not be enforced because she did not have an attorney at the time of contract. Id. at 378, 525 A.2d at 1160. The court noted that it has been widely accepted that "any person that possesses legal capacity may be bound by a contract even when it is entered without representation unless there is fraud, overreaching or undue influence which causes the party to enter the contract." Id. at 378, 525 A.2d at 1160. The court then noted that the surrogate mother had legal capacity to contract, and that there was no evidence of fraud on the part of the father. Id. at 378-83, 525 A.2d at 1160-63.

  208. Id. at 386, 525 A.2d at 1164.

  209. Id. at 387, 525 A.2d at 1165.

  210. Id. at 388-89, 525 A.2d at 1166. The court discussed the appropriate remedy for this breach of contract. After noting that monetary damages were inappropriate and discussing in detail every other possible compensation to the plaintiff, the court decided that the most equitable award to the plaintiff was custody of the child.

  211. In re Baby M, S. Ct. N.J. (Feb. 3, 1988) (Westlaw, 1988 WL 6251).

  212. Id.

  213. And perhaps criminal. Id. See N.J. Stat. Ann. 9:3-54 (West 1963). The court explicitly rejected the categorization of the payments in the contract as a payment for services by noting that payment was reduced to a tenth the agreed upon price if the child was stillborn.

  214. Id.

  215. Id.

  216. Id.

  217. The court in its final two sections focused on the factual issue of custody and visitation in the narrow case at bar. It granted Mr. Stern joint temporary custody and gave Mrs. Whitehead visitation rights. The case was remanded to determine permanent visitation rights and to work out a permanent custody arrangement. Id.

  218. 217 Id. However, even in such contracts, custody can not be involuntarily transferred.

  219. Annas & Elias, In Vitro Fertilization and Embryo Transfer: Medicolegal Aspects of a New Technique to Create a Family, 17 Fam. L.Q. 199, 203-206 (1983).

  220. 219 F.P. Walton, Historical Introduction to the Roman Law 72 (1920).

  221. See Babylonian Talmud, Sanhedrin 19b. This is viewed as a righteous deed, see Exodus Rabba ch. 4.

  222. Although it is true that there are four instances in the Bible in which adopted parents are called actual parents, see I Chronicles 4:18, Ruth 4:14, Psalms 77:16, II Samuel 21:8, these are assumed to be in a non-legal context. See Babylonian Talmud, Sanhedrin 9b.

  223. I.H. Levinthal, The Jewish Law of Agency 58-73 (1923).

  224. J. Caro, Shulchan Aruch, Even Haezer 15:11.

  225. Id. at 15:1.1 ("It is permitted to marry one's adopted sister.")

  226. Babylonian Talmud, 3 Sotah 43b.

  227. Sefer Ha'Chasidim, supra note 43, Comm. 29. See also Babylonian Talmud, Sotah 43b.

  228. See M. Sofer, Responsa 2 Yoreh Deah 125.

  229. Babylonian Talmud, Bava Metzia 12b.

  230. J. Caro, Shulchan Aruch, Choshen Mishpat 370:2.

  231. J. Falk, Meirat Einaim commenting on Id.

  232. J. Caro, Shulchan Aruch, Yoreh Deah 370:2.

  233. Id. at 370:2; Z. Mendal, Be'er Haytaiv on id at 4.

  234. J. Caro, Shulchan Aruch, Even Haezer 22:2. According to one commentator, this rabbinic prohibition even included the rooming together of a married woman with a man not her husband. See Maimonides, Mishneh Torah, Sefer Kedusha, Hilchot Isurai Biah 22:2.

  235. M.M. Shneerson, 4 Zichron Akedat Yitzchak 33-37. For a complete list of those authorities agreeing with this position, see Berzon, Contemporary Issues in the Laws of Yichud, 13 J. of Halacha & Contemp. Soc'y 77, 108 (1986).

  236. This, for example, occurs when a couple adopts a boy, and the boy's adopted father later dies, leaving the adopted child living alone with a woman not his natural mother.

  237. See E. Waldenberg, 6 Tzitz Eliezer 40:21; C.D. Halevi, Aseh Lecha Rav 194-201. Rabbi Joseph B. Soloveitchik has also been quoted as permitting this. See Schacter, Various Aspects of Adoption, 4 J. of Halacha & Contemp. Soc'y 93, 96 (1982). Rabbi Feinstein has also commented on this issue, see M. Feinstein, Igrot Moshe 4 Even Haezer 64:2.

  238. E. Waldenberg,6 Tzitz Eliezer 226-28.

  239. M. Sofer, Responsa, 1 Orach Chaim 174. Rabbi Sofer also notes the praise Jewish law gives to one who raises another's child.

  240. This issue is in dispute. Compare J. Caro, Shulchan Aruch, Yoreh Deah 398:1 with M. Isserles, commenting on J. Caro, Shulchan Aruch, Yoreh Deah 399:13.

  241. See generally J. Caro, Shulchan Aruch, Orach Chaim 139:3. See also A. Auli, Magen Avraham, commenting on id; M. Feinstein, Igrot Moshe, 1 Yoreh Deah 161. For a summary of various laws of adoption, see Schacter, supra note 236.

  242. See supra note 221.

  243. The Code of Hamurabi, King of Babylon 185-186 (R.F. Harper trans. 1904).

  244. See Brosnan, The Law of Adoption, 22 Colum. L. Rev. 332 (1922); Huard, The Law of Adoption: Ancient and Modern, 9 Vand. L. Rev. 743 (1956) (summarizing various ancient adoption laws).

  245. McLauliff, The First English Adoption Law and Its American Precursors, 16 Seton Hall L. Rev. 656, 659-60 (1986). It was not until the late 1920's that adoption became possible in England without a special act of Parliament.

  246. Id. at 666.

  247. See Katz, Re-writing the Adoption Story, 5 Fam. Advoc. 9 (1982).

  248. Id. at 9-10; McLauliff, supra note 244, at 666-67. Before this act and its comparable acts in other states, adoption was done by private petition in front of the state legislatures.

  249. "Roman law provided the ultimate source for all of the state statues permitting adoption." McLauliff, supra note 244, at 667.

  250. cite

  251. See Katz, supra note 246, at 9-10.

  252. Howe, Adoption Practice, Issues and Law, 1958-1983, 17 Fam. L.Q. 123-97 (1983).

  253. See Policy Statement Approved by ABA Board of Governors, 1 Fam. L.Q., 137, 139 (1967).

  254. Model Code of Professional Responsibility DR 5-105(A)-(C) (1980); ABA Model Rules of Professional Conduct Rule 1.7 (1)-(8) (1983).

  255. InFausto, Annual Review of Decisions and Statutory Revisions Affecting Adoptions (Dec. 1st, 1967-Sept. 31, 1968), 3 Fam. L.Q. 123 (1969).

  256. 405 U.S. 1645 (1972).

  257. See, e.g., Alaska Stat. 20.15.040 (1975); Colo. Rev. Stat. 19-6-125 (1973); Mich. Stat. Ann. 27.3178 (555.31) (1980); Minn. Stat. Ann. 259.26 (1971); See generally W. Meezan, S. Katz & E. Russo, Adoptions Without Agencies: A Study of Independent Adoption 133-152 (1978).

  258. See UPA, supra note 86, at 24.

  259. Howe, supra note 251 at 185.

  260. Id.

  261. See Va. Code Ann. 63.1-236 (1980); Ga. Code Ann. 81-1714(b); Mich. Stat. Ann. 27. 3178 (555.68(1)) (1980); Mont. Code Ann. 50-15-304(2) (1987); Tenn. Code Ann. 6-132 (1980); and D.C. Code Ann. 16-311 (1981).

  262. Amadio & Deutsch, Open Adoption: Allowing Adopted Children to `Stay in Touch' with Blood Relatives, 22 J. Fam. L. 59 (1983); Levin, Adoption Trilemma: The Adult Adoptee's Emerging Search for His Ancestral Identity, 8 U. Balt. L. Rev. 496 (1979).

  263. The identical bifurcation can be noted in sex reassignment surgery, where American law is willing to shift sexual identity based upon mutable criteria, while Jewish law is not. See infra, appendix A.

  264. While there are ancient accounts of sex change operations, see R. Green & J. Money, Transsexualism and Sex Reassignment 13-15 (1969), it is only in the last twenty-five years that they have become at all common.

  265. 355 A.2d 204, 140 N.J. Super. 77 (1976).

  266. Id. at 210, 140 N.J. Super. at 84.

  267. Richards v. United States Tennis Assoc., 93 Misc. 2d 713, 400 N.Y.S.2d 267 (Sup. Ct. 1977) (Richards sued the U.S.T.A. over its denial of permission for "her" to play professional tennis as a woman, after she underwent sex reassignment surgery.)

  268. 513 N.E.2d 828, 32 Ohio Misc. 2d 6 (P. Ct. 1987).

  269. Corbett v. Corbett, 2 W.L.R. 1306, 2 All E.R. 33 (P.D.A. 1970). This is also the law in New Zealand; See Re T, 2 N.Z.L.R. 449 (Sup. Ct. Auckland 1975).

  270. 513 N.E.2d 828, 32 Ohio Misc. 2d 6.

  271. See Anonymous v. Weiner, 270 N.Y.S.2d 319, 322, 50 Misc.2d 380 (Sup. Ct. 1966); Hartin v. Director, Bureau of Records, 347 N.Y.S.2d 515 75 Misc.2d 229 (Sup. Ct. 1973).

  272. Note, An Enlightened Perspective on Transsexualism, 6 Cap L. Rev. (1977) (More than twenty-five states permit change in the birth certificate of a transsexual); Comment, The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 Conn. L. Rev. 228 (1975).

  273. Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975).

  274. B. v. B., 355 N.Y.S.2d 712, 78 Misc. 2d 112 (Sup. Ct. 1975) ("New York neither specifically prohibits marriages between persons of the same sex nor authorizes issuance of marriage licenses to such persons. However, marriage is and always has been a contract between a man and a woman." ) See also Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) aff'd 673 F.2d 1038 (9th Cir. 1982); De Santo v. Barnsley, 476 A.2d 952, 328 Pa. Super. 181 (1984); Singer v. Hara, 522 P.2d 1187, 11 Wash. App. 247 (1974).

  275. See Leviticus 22, 24; See Babylonian Talmud, Shabbat 110b.

  276. Compare Tosafot, commenting on Babylonian Talmud, Shabbat 110b (starting with the word v'Hatanya) (rabbinic violation) with Maimonides, Mishneh Torah, Sefer Kedusha, Hilchot Isurei Biah 16:11 (biblical prohibition).

  277. Deuteronomy 22:5.

  278. Teitelbaum, Sex Change Operations, 208 HaMaor 10 (1973).

  279. Jacob Ben Asher, Tur, Yoreh Deah ch. 182.

  280. Ibn Ezra, commenting on Leviticus 18:22.

  281. Y. Palachi, Yosef Et Echav 3:5, as quoted in 1 Contemp. Halachic Problems, supra note 169, at 103-04.

  282. The first discussion on this topic among the latter commentaries is found in Teshuvot Besamim Rosh no. 340. This responsum is not dealt with in this article, since all scholars agree that the Besamim Rosh is a forged work and offers no valid precedential or intellectual support in Jewish law. For a complete review of the history of the Besamim Rosh, see A. Jacobs, Theology in the Responsa 347-52 (1975) where the exact details of the forged nature of the Besamim Rosh are discussed.

  283. E. Waldenberg, 10 Tzitz Eliezer 25:26,6.

  284. II Kings 2:1-12.

  285. It is unclear what, according to the Tzitz Eliezer, would be the parental status of a person after a sex change operation. Accepting the full force of his position, one could argue that parental rights and duties are also terminated, since it is as if the old person had died and a new one had been born.

  286. Y. Babad, Minchat Chinuch comm. 203.

  287. See F. Rosner & M. Tendler, Practical Medical Halacha 44 (1980).

  288. When discussing transsexual surgery, it is important to note that the law concerning children born with ambiguous sexual status, is different from that of sex reassignment surgery in an adult. When a child is born genetically of one sex but with the outward physiological signs of another sex, it is permitted to remove the outward sexual organs and to harmonize the physiological appearance of the sexual organs with the genetic sexual status. That is not considered a violation of Jewish law as the sexual organs are not in fact genuine sexual organs capable of reproduction. This would also be the case of a person whose general physiological appearance is not in harmony with his genetic status. However, it is not true of a person whose genetic and physical appearance is not in harmony with his perceived psychological status. See id. at 43-45; Steinberg, Change of Sex in Pseudo-hermaphroditism, 1 Assia 142 (1976).

  289. Such a position cannot be found in any of the classical decisors of law.

  290. See supra text accompanying notes 279-82.

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