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Thought for the Day: Ova or Uterus -- Who's the Mother?

This question -- consciously expressed or not -- is at the basis of a many discussions of Torah observance in the modern world:
What if the Torah were given now?  I mean, we have all this cool, gee-whiz technology and stuff that the ancients didn't, so the Torah would be different, right?
That question is something like asking, "If the engineers who built this drop on the Matterhorn Bobsleds ride at Disneyland had known that we would be on this cart carrying our cell phones, would they have built it differently?  I mean, wouldn't they have taken into account that I might have something in my pocket that could fall out?"  Actually then engineers who built that ride most certainly knew that people might have something expensive in their pockets that might fall out.  They engineered for it, the made provisions for it.  You won't see a mention of cell phones in the original plans, but you certainly will see provisions for people with pockets and stuff in those pockets.

As an example, let us consider very modern medical issue: surrogate motherhood.  You might think, "Well!  This issue was certainly never imagined in the received tradition!"  You might think that; and you would certainly be wrong.

Before proceeding, though, it is important to understand the halachic significance of the question.  That is important, because in cases where there is no halachic significance, you are very likely not going to find any references in our sources.  This world is for no reason other than as an environment in which to realize the concepts of the Torah as concrete mitzvos.  There are actually five possibilities:

  1. The child is related to his genetic mother, but not his birth mother.  In this case he can marry relatives of his birth mother, but only inherits from his genetic mother.
  2. The opposite: the child is related to his birth mother, but not his genetic mother.  Basically same as above, just roles reversed.
  3. The child has two mothers.  Now he has a big family; he can't marry relatives from either side, but he is a full heir to both sides.
  4. The child has no (halachic) mother.  Itty bitty family; marry whomever he wants, no inheritance.
  5. The matter remains in doubt.  On the marriage issue one will need to say ספק דאורייתא לחומרא and he can't marry anyone related to either side.  On the inheritance issue, though, we'll say המוציא מחברו עליו הראיה (possession is 9/10s of the law) and he'll be heir to none.
So we have an absolutely modern issue with both moral and financial implications.  There are actually three sources (of which I am aware, anyway; there are likely more).  Each one is worth discussing on its own right, so I'll just give the headlines here.
  1. There is a medrash that says the child who became Yosef HaTzadik was conceived in Leah (so she's the genetic mother) and then transplanted to Rochel (who is now the birth mother).  Leads one to conclude that the genetic mother is the halachic mother (case [1], above).
  2. Masechta Y'vamos (97b) discusses the case of twins born to a woman who converted during her pregnancy; hence the twins were conceived by a goya and birthed by a Jewess.  Leads one to conclude the birth mother is the halachic mother (case [2], above).
  3. Wheat that took root and grew at least 1/3 of its growth before the omer is known as חדש before bringing the korban omer, and ישן afterward.  Suppose a ישן stalk of wheat is uprooted and replanted; is the additional growth also ישן (going by genetic source) or חדש (going by birth source; ie, the ground in which it is planted)?  Chazal leave that issue as unsreolvable and therefore we are lead to case [5], above.
I'll just leave you with one little mind-bender.  Since HaShem is outside of time, all of this that is happening -- including all our modern technology -- was not only known, but was actually already in front of HaShem when the Torah was give.  Just another way to understand the the Torah we have today is just as fresh and relevant today as it was the day we received and accepted it at Har Sinai.

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