Skip to main content

Thought for the Day: Surrogate Motherhood -- Argument That It Is Impossible to Determine Whether Birth Or Genetic Mother is Halachic Mother

On the issue of who is the halachic mother in the case of surrogate motherhood, we have seen an argument for the genetic mother and an argument for the birth mother.  Both had proponents, but neither had the universal acceptance.  (Ok... almost nothing this complex has universal acceptance, but neither has even enough acceptance to definitively declare, "This is the halacha.")  There is one more argument, that it is impossible to make such a determination.  (Spoiler alert: this argument will suffer the same fate as the other two; we'll deal with that shortly.)

For those of you who do not live in Chicago or Eretz Yisrael: let's review the relevant halachos of חדש (new grain) and ישן (older grain).  The Torah forbids the use of new grain until after הקרבת העומר/the Omer offering is brought, which is on the second day of Pesach -- 16 Nissan.  When we have the בית המקדש, then חדש grain changes status to ישן with הקרבת העומר; nowadays, we wait till 17 Nissan.  You may be wondering... no, you should be wondering (unless this is all old had for you, in which case you can skip to the next paragraph) what criteria determine whether the grain is from this year's or last year's crop.  Great question!  The answer is: grain that took root and grew at least a third before הקרבת העומר is from last year's crop, otherwise it is from this year's.

At this point you most definitely should be wondering what in the world this has to do with surrogate motherhood.  Your wait is over: Chazal address the situation of grain that has grown more than a third before הקרבת העומר (ie, it is ישן), then was uprooted and replanted (:מנחות צ'ט).  Regarding the new growth, ask Chazal, do we consider it to be an extension of the old growth and so it is ישן, or is it considered completely new growth and is therefore חדש?  Tada!  That's precisely our question: do we look at the new growth (the fetus) as a continuation of the original growth of the ova, or is it considered now as a growth from the uterus of the new (surrogate) mother.

Drum roll please... the answer is: תיקו... question cannot be resolved; let it stand; maybe Eliyahu will be able to clarify it for us, or not.  Anyway, even if we did know how this works out, R' Shlomo Zalman Auerbach was not so excited about a proof regarding humans from plant growth.  I don't know what he didn't like, but it is certainly understandable as the mechanism of adding more plant growth is nothing at like the creation/growth of the embryo in a human.

Bottom like, we started with four possibilities (none, both, genetic, birth) and have concluded it is either the birth or genetic mother, but there is no universally accepted proof of which, and we even have one argument that it is unknowable (to us).  That means the kid will not be able to marry any of either mother's relatives, but he will also not be able to inherit from either mother.

It's times like this that I appreciate having no halachic relatives; much simpler!

Comments

Popular posts from this blog

Thought for the Day: Battling the Evil Inclination on all Fronts

Yom Kippur.  When I was growing up, there were three annual events that marked the Jewish calendar: eating matzos on Passover, lighting candles on Chanuka, and  fasting on Yom Kippur.  Major news organizations around the world report on the "surreal" and "eerie" quiet of the streets in even the most secular neighborhoods of Israel.  Yom Kippur.

As you know, I am observant of Jewish law.  Some have even called me "ultra orthodox" (not in a kind way).  Given that, I have a question.  How likely do you think that I would be tempted to eat on Yom Kippur, that most holy day of the year?  Let's make the scale zero to ten, where zero is "as likely as driving through McDonald's on Shabbos and ordering a Big Mac with extra cheese." and ten is "as likely as breathing regularly".  Take your time.  If you answered "zero"; thank you, but -- sadly and penitently -- no.  The answer is more like nine; I'd like to say lower, but i…

Thought for the Day: Using a Mitzvah Object for Non-Mitzvah Purposes

As I am -- Baruch HaShem -- getting older, I am more cognizant of the fact that I'd like to stay as healthy as possible right up the moment I leave this world.  Stuff hurting is not the problem (I am told there is an old Russian saying that once you are 40, if you wake up and nothing hurts -- you're dead), stuff not working, however, is a problem.  To that end, for several years now I commute to work by bicycle (weather permitting, 30 minutes on an elliptical machine when weather does not permit).  I recently took up some upper body weight training.  Not because I want to be governor of California, just simply to slow down loss of bone mass and extend my body's healthy span.  Simple hishtadlus.  I have an 18 month old grandson who is just the right weight for arm curls (yes... I am that weak), so I do about 10 reps when I greet him at night.  He laughs, I get my exercise; all good.  (Main problem is explaining to the older ones why zeidy can't give them the same "…

Thought for the Day: Coming Into This World for Torah, Avodah, and Acts of Loving Kindness

This TftD is so self-serving that I should be embarrassed.  But I am not... talking about grandchildren is always off budget.  I have, bli ayin hara, a beautiful new grandson; born at 6:11 PM CDT last Friday night.  The secular (aka -- by me, anyway -- slave) date is October 20, 2017 CE.  The Hebrew (aka Real) date is certainly Rosh Chodesh חשון/Cheshvan and certainly in the year 5778 since Creation.  The date, you ask... good question!

Sundown on Friday night was 6:01 PM CDT, which means he was born either at the end of the last day of תשרי or the beginning of the first day of Cheshvan; a period know as בין השמשות/twilight.  What's the big deal, you ask... I am so glad you asked.  We all deal quite handily with בין השמשות every week and every holiday; we're just stringent.  We start Shabbos and the first day of Yom Tov before בין השמשות; that is, before sundown.  Likewise, we end Shabbos and the first day of Yom Tov after בין השמשות; some 42, 50, 60, or 72 minutes after sundo…