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

More on the details of determining the halachic mother in case of surrogate motherhood.  We tried proving that the genetic mother is the halachic mother, but ran into issues; still no proof.

Let's try the other way, to prove that the birth mother is the halachic mother.  Of course, all gemaras have their own personality and are, well, gemara; there are no "easy" ones.  None the less, there are certainly some mesachtos that are more approachable than others.  Then there are the big three, whose acronym is עני/poverty: עירובין, נידה, יבמות; because they really consume a lot of mental resources just to get a surface understanding.  Of course, therefore, this arguments begins with a gemara in יבמות; daf 97b, in fact.

Chazal there discuss the case of a non-Jewish woman who has twin boys.  In the first scenario, the three of them converted to Judaism.  The halacha regarding converts is: גר שנתגייר, כקטן שנולד דמי/one who converts [to Judaism] is considered to be a newly born human.  In other words, they are a new human being with no relationship to the human they were before their conversion; in fact, that human is essentially no longer in existence.  That goes so far that the Torah would allow the boys (now Jewish) could actually marry their mother (now Jewish); but Chazal forbad that to prevent goyim from converting just to marry their moms.  Also -- and this is more relevant to our current topic of interest and why this comes up in יבמות -- if one boy were to get married and then die childless, his "brother" (i.e., biological but not halahic) would not be obligated in יבום/levirate marriage.  Moreover (and also on our topic), if she has more boys as a Jewess, those boys will be in line to inherit from her, but the twins will not.

So far all very standard; now, however, suppose she converts to Judaism while she is pregnant with twins.  (That's really why we chose twins above, to keep the cases as much as possible the same.)  In this case, say Chazal, the boys are half-brothers; that is, they share a mother, but not a father.  They don't share a father because halachically they do not have a father because (feel free to say this along with me), גר שנתגייר, כקטן שנולד דמי.  On the other hand, they do share a mother.  Now they are in line to inherit from her along with any other boys she subsequently has (but they of course would not have to share with any previous boys).  If one boy were to get married and then die childless, his brother most certainly would be obligated in יבום.

Now comes the punchline: just as they have no halachic father, the similarly have no halachic conception mother!  After all, she is also as new born; their genetic mother does not halachically exist, only their birth mother does.  And what do you see?  The boys are related to her!  Putting this all together, then, we have a nice proof that the birth mother is the halachic mother.  Tada!

The strength of this argument, though, is also its weakness.  What we have actually proven is that when there is no genetic mother, then the birth mother is the halachic mother.  However, say those who prefer the argument from the medrash, if there were a biological mother, then she would be halachic mother; it is only in the case where there is not competition that the birth mother wins.

There is one more proof to go through, but we'll do that later.  I taught college and even some high school; I know that near the bell there is only one statement that actually goes into the student's consciousness: "This won't be on the test."

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