Jewish Surrogate Motherhood
Rabbis across the denominational spectrum question the morality of surrogacy, but some believe that these concerns can be allayed.
According to William Handel, an attorney with special expertise in surrogacy, the items often contained in a surrogacy agreement include (1) complete freedom of choice for the surrogate to withdraw from the agreement prior to conception; (2) a guarantee of the surrogate's right over her body during pregnancy, including the right to abortion and operations to protect her health; (3) a commitment on the part of the intended parents to accept the newborn, regardless of his or her condition; and (4) payment to the surrogate of all medical costs, psychological counseling, attorney's fees, and living expenses in addition to her fee. […]
Surrogacy Is Not Baby Selling
Some judges and some state laws have complicated matters by analogizing surrogacy to adoption and then seeing paid surrogacy as forbidden baby selling; indeed, four states have made it illegal for a surrogate to receive any payment, and five more have allowed "expenses" only.
As Rabbi Spitz argues, though, the analogy is faulty for several reasons: contrary to adoption, in surrogacy (1) the intended father is in most cases the biological father; (2) through their surrogacy contract the intended parents accept responsibility for the child from the moment of conception, thus protecting the interests of the child in having a secure home regardless of impairment in the child or of any changes of circumstances among the adults involved‑‑a state of responsibility parallel to that embedded in Jewish law for all of a parent's children; and (3) there is less duress on the woman who agrees to give up the child, since she makes her decision even before conception and is typically a married, secure woman with children of her own. […]
In Rabbi Spitz's view, which I endorse in light of the arguments above, outlawing payments to surrogates would be an unnecessary and unwarranted ban that would unjustly prevent infertile couples from having the child they so desperately seek.
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