Question: It is well known that in Jewish law a child inherits its religious status from its mother. What is the status of a child who was born as the result of an egg donation, where the birth mother was Jewish, but the egg donor was not?
Answer: As medical techniques that enable egg donation are fairly recent, there are no direct precedents to this situation in classical rabbinic sources. There are however two possible sources to guide us in our thinking – one in the Midrash and one in the Halachic sources.
Midrash: The Torah describes Dinah as the ‘daughter of Leah’ [Gen. 30:21]. Following normal usage, we would have expected the Torah to refer to her as the ‘daughter of Jacob’. The Midrash [quoted in Targum Yonatan] explains that a pregnant Leah was carrying a male foetus, but wanted her sister Rachel to give birth to at least 2 of the 12 tribes of Israel. In a miraculous way, the male child in her womb was transferred to Rachel, and a female child was transferred from Rachel to her – and thus she gave birth to Dinah. Although the child was genetically Rachel’s daughter, she is known as the ‘daughter of Leah’ thus indicating that it is the birth mother, rather than the genetic mother that determines a child’s status.
Halacha: It is doubtful that a Midrash should be used to establish novel Halachic principles. The closest situation in the classic legal sources is a woman who converts while pregnant. In this case, the child was conceived to a non-Jewish mother, but was carried for part of the pregnancy by a Jewess. The Talmud [BT Yevamot 78a] states that when a pregnant woman converts, the child does not require an additional immersion after birth. Following this, the Shulchan Aruch [YD 168:6] rules that a child whose mother converts when pregnant, is Jewish. This indicates that it is the birth mother that determines a child’s Jewish status.
However, there is another possible interpretation of these sources. It is possible that in this case the child in the womb is not considered Jewish from birth – but rather the child was converted at the same time as its mother. If this is the case – without conversion the child would not be Jewish, and it was the genetic mother who determined the child’s status! We therefore require further clarification before we can confidently rule on this matter.
There is one further discussion in the Talmud that comes to our aid. In tractate Yevamot [BT 97b], the Talmud asserts that if a mother converts while carrying twins, the babies are siblings. Normally, a convert is considered to be ‘born again’ – and is not considered in Jewish law to be related to his natural siblings. The fact that the twins are considered to be siblings shows us that they are Jewish from birth and not by conversion. Thus – it is the birth mother who determines status in Jewish law.
Modern medicine raises many challenges to traditional legal systems. Although the roots of Jewish law are many centuries old – the principles transcend time and enable us to meet the challenges of a new age.
Rabbi Chaim Weiner
Based on: Artificial Insemination, Egg donation and Adoption, Eliot Dorff CJLS 1994
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