Deciding Between Two Mothers: Determining Halachic Motherhood1
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The Institute for Dayanim And under the auspices of Beis Horaah in memory of Baruch and Bracha Gross Vayeitzei 5777 337 This week’s article discusses the halachic question of Dear Reader, determining motherhood – a question that becomes more and The Midrash in this week’s more common as technological advances allow various means parashah teaches that in the of separating the genetic mother from the birthing mother. merit of Leah’s giving thanks What proofs are brought by authorities for this question? Can to Hashem – she expressed non-halachic sources be relied on in proving the case? And how her special gratitude for the do contemporary halachic Poskim rule on the matter? These birth of Yehudah – she questions, among others, are discussed in this week’s article. was given the privilege of being mother to Yehudah This week’s Q & A discusses the question of reciting Perek Shirah and David. David said “Give at night. praise to Hashem, for He is good.” Yehudah, in turn, Deciding Between Two Mothers: said “She is more righteous Determining Halachic Motherhood1 than I.” The Pasuk writes: “After this she gave birth to a daughter, and The connection of David’s she called her name Dinah” (Bereishis 30:21). The Gemara praise with the thanks of (Berachos 60a) discusses the words “after this”: Leah is clear cut. But what does the admission of “What do the words ‘after this’ teach us? Rav said it means, `After Leah passed judgment on herself.’ Knowing that twelve tribes will Yehudah have in common be born to Yaakov, and that six had already been born to her and with the gratitude that Leah another four to the maidservants reaching a total of ten, Leah expressed? Although they said: If this will be a boy, my sister Rachel will be less than the share the same Hebrew root maidservants. Immediately, she [the fetus in Leah’s womb] became (todah), the two concepts a daughter, as the verse says: She called her name Dinah.” – thank on one hand and admission on the other – The Maharsha in his commentary to Nidda 31 explains that the appear to be unrelated? fetus in Leah’s womb did not itself turn into a girl. Citing Paane’ach Raza, he writes that the fetus with which Rachel was pregnant In fact, the Torah sense of was miraculously transferred to Leah’s womb, while Leah’s baby hodaah, giving thanks, runs was transferred to Rachel’s womb. This idea is stated explicitly in far deeper than the everyday Targum Yonasan ben Uziel (Bereishis 30:21): “thank you.” When a person truly thanks 1. The author wishes to credit Rabbi Zvi Ryzman’s long and somebody else, he declares detailed article on the subject of ovarian transplantation, which was very helpful in writing this article. ØØ “After this she gave birth to a girl, and she called her name Dinah, his indebtedness. He admits, because she declared it a judgment from Hashem that half of so to speak, that he is the tribes should be born from me, but two should be born from indebted, beholden to return my sister Rachel, just as two tribes were born from each of the the goodness that he has maidservants. Hashem heard Leah’s prayer, and the fetuses were received. switched in their wombs: Yosef was placed in the womb of Rachel, The deepest indebtedness, and Dinah in the womb of Leah.” of course, is due to Hashem. This fascinating exposition has potentially important halachic This is why when we say ramifications in questions concerning the determination of modim, giving thanks to motherhood. Hashem for all He does for Given advancing technologies, births that distinguish between us, we prostrate ourselves genetic motherhood and the woman who actually gives birth to the before Him. Our very being, child are becoming more and more common. The most familiar and everything we have, procedure is surrogate births (a fertilized embryo is placed into are from Him. In thanking the uterus of a surrogate), but several transplantation procedures Him, we declare that we are (such as ovarian transplantation) have also gained popularity. The annulled before Him, that question is: who is considered the mother of the child—the genetic our deepest self is wholly mother (owner of the fertilized ovum) or the birthing mother? indebted. Based on the transfer of fetuses from Rachel to Leah and vice The same is true for deeply versa, it seems that the halachic mother is the mother who gives felt gratitude to flesh and birth to the child: Dinah is considered Leah’s child, even though blood. If we truly recognize she was transferred as a fetus from Rachel’s womb. Yet, as we will that which somebody has see, this proof is far from being the last word in this complex and done for us – for instance important halachic dilemma. parents, siblings, friends, and anybody else – we will feel Deciding Between Two Mothers indebted to them. We “owe” One of the first rabbinic authorities to address the question of them something back. motherhood determination is Rabbi Shlomo Zalman Auerbach zt”l, Part of the Hallel prayer is who was approached concerning questions of egg donations and the surprising supplication: surrogate motherhood. It appears that Rabbi Auerbach remained “Please, Hashem, send us uncertain as to the question of halachic lineage. salvation; please, Hashem, On the one hand, Rabbi Avigdor Neventzal (a foremost disciple send us success.” As we of Rabbi Auerbach) testified that he heard from his mentor that express our gratitude before the egg donor is the halachic mother (Collected Articles for the Hashem, we are empowered Second International Conference of Medicine, Halachah and to beseech Him for all that Ethics, published by the Shlezinger Institute, p. 26, note 67). we need. This means that motherhood is follows from the genetic code of Let us give thanks for the the child, which depends on the ovum, and not on birth. past. At the same time, we Prof. Zeev Lev, however, writes (Emek Halachah 2) that he heard beseech Hashem for the from Rabbi Auerbach that motherhood is defined by giving birth, future: “Please, Hashem, and not on the egg donor. send us salvation; please, Further testimony indicates that Rabbi Auerbach never reached Hashem, send us success.” a clear and final verdict concerning the matter. For this reason, Nishmas Avraham (Even Ha-Ezer Siman 1, letter 6, no. 11) records a written ruling of Rabbi Auerbach that the latter, who carries the pregnancy and whereby one should act stringently and consider gives birth to the child, is the true mother. both women—both the egg donor and the Rabbi Sternbuch, however, does not accept this recipient or surrogate—as mothers of the child, proof as conclusive: “This proof may be deferred, out of doubt. If the surrogate is not Jewish, for and we cannot bring a proof from a miracle. In instance, he ruled that the child must undergo principle, logic dictates that the egg donor should conversion, out of doubt. On the other hand, be considered the mother, because she has a part if the surrogate non-Jew was immersed for in the child and his [genetic] makeup is like hers. conversion to Judaism while she carried the child, Yosef, who was miraculously transferred from one the conversion is not effective for the child, since womb to another, was entirely transferred, leaving it is possible that she is not the halachic mother. no trace of Leah’s ovum—therefore the child was Nishmas Avraham says that Rabbi Elyashiv Rachel’s alone. No proof may be brought from zt”l was likewise undecided as to the matter of miracles.” halachic motherhood, and therefore considered Shut Tzur Yaakov (no. 28) suggests a different both the egg donor and the recipient or surrogate deferral of the proof from the birth of Dinah. as mothers by Torah law. Thus, the child may not He writes that the body of Yosef in Leah’s marry the blood relatives of both women; he must womb became female, and the body of Dinah also treat both women with the respect afforded in Rachel’s womb became male, and [only] their to a mother—he may not strike or curse them, spirits transferred from one womb to the other. and he must attend to both of their needs. When the body of the male in Leah’s womb On account of the doubt involved, Rabbi Auerbach changed to a female, it received the spirit of ruled that one should not willfully undergo the Dinah from Rachel’s womb, and vice versa. Based procedure, because “it causes a genealogical on this understanding, there is no proof from the muddle, and it goes against the outlook of the miraculous incident. Torah.” Was Dinah Leah’s Daughter? Yosef and Dinah In fact, some cite the birth of Dinah as proof Addressing the issue of halachic motherhood, Rabbi that the genealogy of the child does not follow Moshe Sternbuch notes the proof mentioned at the carrier of the pregnancy, but rather the egg the outset from the inter-womb transfer between donor. Rachel and Leah (Teshuvos Ve-Hanhagos Vol. On the verse (Bereishis 46:10) “And Saul the 2, no. 689): son of the Canaanite,” Rashi comments: “The “I have seen some bring a proof from Dinah son of Dinah, who cohabited with a Canaanite— daughter of Yaakov, of whom the Gemara states when they killed Shechem, Dinah refused to that she transferred from the womb of Rachel to leave the town, until Shimon swore he would Leah, and Yosef from Leah to Rachel.