The issue of surrogate motherhood came up in discussion last night. Does Judaism have a position on this?
The Aish Rabbi Replies:
There is a fascinating Talmudic passage (Brachot 60a) which relates to this. While in her seventh pregnancy, Leah said: "Jacob is destined to beget 12 tribes. I have already borne six, and each of the handmaids have borne two, making a total of 10. If the child I'm carrying turns out to be male, then my sister Rachel will not even be equivalent to one of the handmaids." Leah therefore prayed, and the fetus was changed to a female.
In Genesis 30:21, the commentator Yonatan Ben Uziel (circa first century) explains that Rachel was also pregnant at that time, and the two fetuses were switched – with Rachel getting the male (born as Joseph) and Leah getting the female (born as Dinah).
[Interestingly, some say this "switching" helps explain why Joseph is described in Genesis 39:6 as being so beautiful (i.e. more feminine characteristics), while Dinah "went out on the town" (Genesis 34:1) more in the manner of boys.]
We apparently see from here that the birth-mother is regarded as the mother. Rabbi Yisrael Meir Lau (former Chief Rabbi of Israel, in "Yachel Yisrael" 29) concludes that the mother who gives birth is the halachic mother. The egg donor is also regarded as the mother in issues where we should be stringent -- e.g. if she is not Jewish, the child would need conversion.
Interestingly, the process of motherhood is defined at birth, whereas fatherhood is defined at conception.
Because of the complex issues involved, however, surrogate motherhood is not allowed in all situations.
For further study:
• "Artificial Insemination," in The Comprehensive Guide to Medical Halachah, by Abraham S. Abraham, MD, FRCP (Feldheim)
• "Artificial Insemination," in Facing Current Challenges: Essays on Judaism, by Rabbi Dr. Yehudah Levi (Hemed Books)
• “The Use of Cryopreserved Sperm and Pre-embryos in Contemporary Jewish Law and Ethics” – www.jlaw.com/Articles/semen.html