Genealogy and Modern Technology

Historically, few issues have been as crucial to the Jewish People as the preservation of a pure Jewish lineage. Although technically there are more severe crimes than intermarriage, in the minds of even the least observant of parents it is often the worst that can happen to their children apart from death. The dread of knowing that the next generation will no longer be Jewish is something no-one wants to suffer.[1]

Chazal instructed even those who would never dream of marrying out intentionally to take precautions when looking for a spouse. Many assimilated during the Babylonian exile, leaving Ezra Hasofer with the difficult task of gathering evidence of the ancestry of the entire community. Chazal tell us that although in Babylon itself he succeeded in siphoning off the impure families, elsewhere the communities were like ‘dough’ (an inseparable mixture).[2]

Because of this, some required one to check several of the ancestors of a potential spouse before marriage. Although the bottom line halacha is that one may marry anyone from a family within the known Jewish community (ie one that people relate to as Jewish without any known problems),[3] Chazal advised to keep a distance from families with bad character traits.[4] Apart from the obvious reasons, we are told that quarrelsomeness and brazenness are potential signs of problematic descent.

In the modern age

Nowadays, although assimilation remains a serious problem, thanks to meticulous birth registration uncertainty over maternal lineage is rare when it comes to natural births. However, modern technology for all its benefits brings new challenges.

Thank G-d we live in an age where women without a womb can have children through a surrogate mother, and those with no ovulation can receive egg donation. Clearly though, it is impossible to say that in both cases the one raising the children is the natural mother. Chazal did not have this question to answer, and in my view it is futile to attempt to prove either way from their words.

Contemporary poskim are split over this question. Although some of them do attempt to support their positions from statements of Chazal, it seems that the main factor influencing both sides is instinct. To many (myself included) it would not make sense to say that the mother is anyone other than the genetic mother, who the child will often resemble physically. Others cannot fathom how a woman can carry a child for nine months, only for us to declare that the real mother is the one who merely had minor surgery to produce the child.

This question has major halachic ramifications. If only one of the two potential mothers is Jewish, the child may require conversion. Worse still, if one of them is related to the father or married to another man, the child may be a mamzer with all that this entails.[5]

Deciding on a communal level

Ideally, an issue like this would be brought to the Sanhedrin and all would have to accept their ruling. Until the Sanhedrin is re-established, the issue will certainly remain unresolved and we have to deal with this in the best way possible. To help determine what this way is, we can draw on Chazal.

If we are looking for a dispute over an equally severe issue as a precedent, one existed in the times of the Mishna. Beis Shamai and Beis Hilel disagreed over the complicated case of ‘Tzaras Erva’, an issue which requires a brief introduction.

If a married man dies leaving a brother but no children, his wife and brother have two options. They can either marry (yibum), or perform chalitza (a special ‘divorce’ process involving the wife removing her brother-in-law’s shoe). However, if the wife is one of the close relatives forbidden to her brother-in-law (eg if she is also his daughter, in a case where the deceased married his niece), no chalitza is required.

The dispute occurred in a case where the deceased brother had more than one wife, and one of the wives is forbidden to her brother-in-law. Beis Shamai required one of the other wives to perform either yibum or chalitza, whereas Beis Hilel maintained that the exemption of one wife is enough to exempt all the wives.

The Mishna tells us that despite this dispute, Beis Shamai and Beis Hilel did not refrain from intermarrying.[6] The gemara explains that although the performance of yibum created mamzerim according to Beis Hilel,[7] Beis Shamai informed Beis Hilel of such cases so that they would not marry those forbidden to them according to their view. And Beis Hilel would also inform Beis Shamai about any cases of ‘Tzaras Erva’, so that Beis Shamai would not marry women who required chalitza according to their view.[8]

In our case, if it is necessary to use a married or non-Jewish surrogate mother it is generally well known, and it is relatively easy for those who believe that the surrogate is the real mother to act accordingly. However, the use egg donation is not usually publicised.

The use of a married donor should certainly not be done secretly, as it could create an irreversible problem of mamzerus. I imagine even those who believe that the birth mother is the real one would not one their children to be viewed as mamzerim by others, so this should rule out any egg donation (or surrogacy) by a married woman.

The problem caused by non-Jewish egg donation is a smaller one, as the child can go through conversion relatively easily.[9] However, here also parents may not like the idea of having a child who is a convert.[10] If they believe that the birth mother is the real one they may choose not to convert the child, but if they make this decision it is incumbent on them to publicise the fact that their child is not Jewish according to those who disagree. It would be more prudent to convert him ‘just to be sure’.

Taking responsibility

It was recently brought to my attention that not all rabbis follow the example of Beis Shamai and Beis Hilel. One major proponent of the view that maternal lineage follows the birth mother actually advised against converting in a case of non-Jewish egg donation, in order ‘not to create doubts in the mind of the child.’

As I did not manage to clarify all the details of the case, I can only assume that this advice was given at a time when the question was a new one, and that the rabbi involved did not realise that so many would disagree with his ruling. Nevertheless, one who is truly wise anticipates the future.[11]

Sadly, the policy of one significant voice in the world of fertility-related halacha is to continue ruling this way. But unlike the talmid chacham in the original case, he does not do this out of conviction that the real mother is the one who gives birth. He tells those who need non-Jewish egg donation to take it, and those who need the services of a non-Jewish surrogate mother to use them. In neither case does he tell them to convert the child. In other words, he knowingly causes religious Jews to marry non-Jews.[12]

This is yet another product of a warped perception of halacha, where everything is a sea of different opinions and in every circumstance a different card can be played. No wonder so many people expect rabbis to rule leniently always, and are suspect when told that there is no way round a certain problem.[13]

In the future

The world of fertility treatment is developing at a fast pace. Soon the ‘egg or birth’ question will be one of the least complex. Already now it is possible to use part of one egg with another part of another egg, and it is technically possible to grow embryos outside of any mother (although this has not yet been approved legally). Eventually eggs may even be produced artificially.

Rabbis need to keep up with the latest developments in order to stay relevant. And we must work towards achieving the ideal means of deciding questions of this magnitude, by re-establishing the Sanhedrin.

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[1] Even if it is a daughter marrying out, it is clear to most that the chances of preserving Judaism this way are minimal. In addition, a child without a Jewish father has no tribal lineage (his status is similar to that of a convert).

[2] Kidushin 71b

[3] Ibid. 76b, Shulchan Aruch Even Haezer 2:2

[4] Kidushin 71b

[5] See Minchas Shlomo 3:124, where R’ Shlomo Zalman Orbach makes a compelling argument that mamzerus can exist even when no forbidden sexual relations have occurred.

[6] Yevamos 14a

[7] As when there is no mitzvah of yibum, ones dead brother’s wife is also one of the forbidden relatives.

[8] Yevamos 14b

[9] The parents or beis din can convert their child without any need for him to accept, see Kesuvos 11a. Although he can reject this conversion when he reaches adulthood, this will be rare provided that he has any kind of relationship with his parents and a good Jewish education.

[10] There are also halachic ramifications, as a female convert and daughters of a male convert cannot marry Kohanim.

[11] Tamid 32a

[12] The result is that the Shechina does not rest on these families, see Kidushin 70b. אוי לאזניים שכך שומעות!

[13] See “How does halacha work?” for an explanation of how a posek is supposed to rule.