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Thought for the Day: Surrogate Motherhood -- Argument That Genetic Mother is Halachic Mother

As I am sure you recall (since am quite certain you have nothing to do but to wait expectantly for your next installment of TftD; on the off chance I am wrong, however, you can review the salient issues here), there are three main schools of thought on the halachic mother in the case of surrogate motherhood.  Today we shall, בעזרת השם, explore the first alternative: the genetic mother is the halachic mother.  (Based on my understanding of shiur I hear from Rabbi Noach Oelbaum.)

Among the children of Shimon who came down to Egypt with Yaakov was: שָׁאוּל בֶּן הַכְּנַעֲנִית; literally: Shaul, son of the Canaanite woman.  Rashi finds it untenable that Yaakov would make such a shidduch and therefore prefers the explanation found in Gen. Rabbah (80:11):
The son of Dinah, who had been possessed by a Canaanite. When they killed Shechem, Dinah did not want to leave until Shimon swore to her that he would marry her.
A little background, also from the medrash: Dina felt horribly damaged and disgraced after she was raped.  So damaged and disgraced, in fact, that she could no longer see herself as a בת ישראל; she saw herself instead as a lowly Canaanite woman.  She felt herself excommunicated from the royal family.  Shimon, though, believed in her and built her up.  Even so, it was only when Shimon swore to marry Dina that she could again feel human.

Obvious problem #1: They are brother and sister.  More or less obvious solution: בני נח are allowed to marry a sibling from the father's side.  That is, nationality follows the mother (as usual), and they have no particular spiritual heritage, therefore a non-Jewish half-sister and half-brother who share a father can marry.  Obvious problem #2: That doesn't solve our problem, as both Shimon and Dina have Leah as a mother.

Back story for cool solution #1: (Rashi, Bereishis 30:21) When Leah was pregnant for the seventh time, she realized that she was carrying a boy.  Leah also knew that Yaakov was destined to have 12 boys; she already had 6, each maidservant/wife had two, and Rochel had only one.  If Leah would have another boy, it would leave Rochel with the fewest number of boys, so she davened that the child she we carrying should be a girl; which she bore and named Dina (since she made a fair judgement).  The medrash gives another detail: The fetus that was born Dina had actually been conceived by Rochel, and the fetuses were switched in answer to Leah's prayer.

Cool solution #1: Dina was conceived by Rochel, then borne and birthed by Leah.  In order for Shimon to be allowed to marry Dina, they must have (at least) different mothers.  That, together with the medrash proves that the biological, and not the birth, mother is the halachic mother.  Tada!  Problem solved.

Cool problems with even cooler solution: Wait!  That would make Yosef actually Leah's son.  Ummm... really?!  Yosef is always, always referred to as Rochel's son.  Moreover, if the biological mother is the halachic mother, then Leah's plan didn't accomplish anything.  One more detail: we really, really don't like to pasken halacha from medrash.  For those reasons, many reject this proof.  What do they do about obvious problems #1/#2?  Truthfully, one would expect no problem with marrying siblings; after all, Adam and Chava's children all did.  The Torah is מחדש to us that בני נח who share a mother may not marry.  However, as with any חידוש in the Torah, one is not permitted to expand it beyond that which is revealed.  When the Torah is מחדש that half-siblings on the mother's side may not marry without qualification, one must assume the usual case: both the birth and genetic mother are the same.  When the birth mother and genetic mother are different, there is no prohibition.

Come on... this whole line of reasoning on both sides is extraordinarily precise and innovative.  Nothing cooler than that.


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