Judaism and Surrogate Motherhood

Rabbis across the denominational spectrum question the morality of surrogacy, but some believe that these concerns can be allayed.

The major argument in favor of surrogacy, of course, is that it enables infertile couples to have children with the gametes of at least one of them. Not only is surrogacy thus a response to the pain of infertility for the couples involved; it is also a way for that couple to fulfill an important Jewish value and hope.

Social and Economic Concerns

Those arguing against surrogacy on moral grounds (rather than, or in addition to, the American legal and psychological issues) have raised several objections. Some, like the Orthodox Rabbi Immanuel Jakobovits, find it inherently demeaning: “To use another woman as an incubator…for a fee…[is a] revolting degradation of maternity and an affront to human dignity.”

In like manner, the Conservative Rabbi Daniel Gordis holds that surrogacy is degrading because it involves a “commodification” of the surrogate woman’s body, that is, a transformation of the woman’s reproductive abilities into a commodity that can be traded on the market. Further degradation comes from the limits imposed on the surrogate: Gordis cites feminist Carole Pateman as pointing out that “since surrogacy contracts typically limit a woman’s sexual activity after insemination, govern the drugs and foods she can consume, and have attempted (in some cases) to remove her option of abortion, surrogacy verges on the enslavement of women.”

Gordis also worries about the social effects of surrogacy. Surrogacy will, in his view, accentuate the social and economic differences between the relatively rich couple and lawyer as against the relatively poor surrogate mother. A New York Times article he cites reported a typical surrogacy agreement in 1987 that provided $10,000 for the surrogate mother, $10,000 for the lawyer, and $5,000 for the medical expenses involved and for maternity clothes. (Surrogacy has become more expensive since then: the cost for a typical ovum surrogacy in 1994 had risen to $42,000.)

The couple’s joint annual income exceeded $100,000, whereas the surrogate’s annual income was $8,000.

Moreover, the costs of surrogacy mean that only the rich will be able to pass down their genes in this way, and that is effectively saying that the rich are more entitled to reproduce than the poor. Indeed, if surrogacy were legitimized, Rabbi Gordis fears, women on welfare might have to explain why they would not be willing to earn money as surrogates, another aspect of the inherent slavery involved. Since that burden could be imposed only on women, it would serve further to degrade women vis‑a‑vis men in our society, in this case women on welfare versus men on welfare. […]

Surrogacy May Undermine Marriage

Reform Rabbi Marc Gellman expresses yet another moral concern. While surrogacy may not technically be adultery, introducing a third party into the couple’s reproductive process may feel dangerously close to that and may ultimately undermine the couple’s relationship altogether. Furthermore, in ovum surrogacy using the husband’s sperm (the most common type of surrogacy), the wife is being asked to raise a child who is genetically her husband’s but not hers — and one carried by another woman to boot. “The sanctity of family life requires a single husband and wife.”

Along the same lines, Israel’s Health Ministry outlawed surrogacy in 1987 on the grounds that “the practice was just unacceptable,” in addition to the resulting uncertainty as to the identity of the parents of the child.

These moral concerns are real. In a landmark responsum adopted by the Conservative movement’s Committee on Jewish Law and Standards, however, Rabbi Elie Spitz responds to many of them, and I think that the others can be satisfactorily addressed as well.

Responding To the Social and Economic Concerns

Let us speak first to Rabbi Gordis’s social concerns. It is indeed true that only the rich will be able to afford such a procedure, and that will amplify the differences between rich and poor. The United States, though, is not a socialist country, and while Americans have considered it important to provide basic medical care to the elderly and to those who cannot afford it through programs like Medicare and Medicaid, even the most liberal stances in American politics do not endorse making surrogacy available at public expense. […]

The degradation of the woman, an issue raised by both Rabbis Jakobovits and Gordis, is a more serious issue, but that fear has been substantially allayed by the brief history of surrogacy. Rabbi Spitz reports that at least eight doctoral dissertations and other professional studies probing surrogacy have been conducted, and all of them belie the early predictions and concerns about the procedure. Surrogate mothers, the studies found, are not generally black and poor; on the contrary,

“the typical surrogate mother was twenty‑eight years old, married with children, employed full‑time, and had thirteen years of education. Her husband was supportive of her decision to serve as a surrogate. Most were Caucasian, middle‑range in income bracket, in good health, and had positive experiences in past pregnancies. While money was a factor in choosing to become a surrogate, it rated consistently lower than the desire to help another couple.”

Since surrogacy is rare and the surrogate mother is generally not poor, Rabbi Gordis’s worries about women on welfare being forced to serve in this capacity have proven unfounded. […]

Responding To the Enslavement Claim

The concern that surrogate mothers might be virtual slaves has largely been allayed by developments in American civil law.

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.

Excerpted and reprinted with permission from Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, published by the Jewish Publication Society.

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