YU Medical Ethics: Are you My Mother? Surrogate Motherhood in Jewish Law

(With thanks to the amazing Michael Teitcher, who gave me a table.)

To download all the sources Rabbi Brander used, and to which he makes reference in this speech, click here for a PDF file including all of them. Go to the top right-hand corner, where it says "Please Enter _____." Insert the letters you see there, and then click Download.

THESE NOTES ARE UNOFFICIAL AND UNEDITED. ANY AND ALL MISTAKES ARE MINE.

Introduction: Hello and welcome to the YU Medical Ethics society…if this is your first time at one of our events, I welcome you- for those of you who have participated in past functions, thank you for support and encourage you to stay involved- sign up sheets are available- our website, www.yu.edu/medicalethics has recordings of all of our prior events. Please check this website in coming weeks for a full day conference on ____ at the beginning of next year. As many of you are aware, the YU MedEthics society is a student-run society…medical issues as relate to Torah issues and halakha- strives to make YU an educational resource for laymen, doctors, Rabbis, etc- surrogate motherhood often overlooked by others- we want to bring it to the fore.

Rabbi Brander received special ordination from Machon Puah in the field of Medical Ethics, etc. Dr. Adrienne Asch- introducing this night’s event- professor of Bioethics at YU’s school- professor at Einstein- following tonight’s lecture will be a question and answer session. Audience should please turn off their cellphones. Thank board of YU MedEthics society. Also thank CJF, student organization of YU and TAC council- also like to thank Yonah Bardos, student president of MedEthics society- without his vision and truly tireless work the YU Medethics society would not be here today. I am proud to congratulate Yonah on his election as the Yeshiva College president.

Dr Adrienne Asch: Thank you to the MedEthics society for inviting me to speak and to Rabbi Brander for encouraging me to speak- he has been a wonderful colleague- my colleague as director of research David Wasserman is also here and I would like to acknowledge him as a very important center for ethics staff- have some brochures I can give out at the end of the evening if you’d like.

What I’m going to do for a very brief time- and someone can tap me on the shoulder as I’m about to exceed my time- about not so much the – there’s no one secular perspective on the topic of surrogate motherhood- there are many different perspectives- people have written on this topic in USA, Europe, Australia- can’t count number of articles and books that have been produced on the topic from many different vantage points- some very supportive of the notion that women should be encouraged if they wish to gestate children for other people- many saying they should be paid for their physical labor- that they should be expected to keep their agreement with the people that they gestate children for- and if during the pregnancy or during the birth of the child they come to regret the decision and want to retain custody of the child, many people say should not be the case.

Twenty years ago, first very well-known case of surrogate motherhood- case of Mary Beth Whitehead in New Jersey- woman decided she didn’t want to relinquish custody of the child- many people said that a contract was a contract and she should give up the child- that’s one perspective and it’s a perspective that features as its hallmarks the notion that women should be free as any other people are to make decisions about their bodies and their lives- that they should not make these contracts without a very clear sense of what is going into them- should only do this with a sense of informed consent- and once the contract is made, they should honor it. A very autonomous notion- notion that says that what women do with their bodies- pregnancy, even if very physically involving work- doesn’t mean that pregnancy means the psychological involvement of wanting to be the mother of the child who results from the pregnancy. A notion that separates physicality of gestation from the emotional commitments of bearing a child.

Other perspectives stress that pregnancy is a very deeply-involving activity – that women can’t undertake it without changing their lives in certain ways to be – to guarantee the health of the fetus that they are carrying- if they drank wine, they stop drinking wine to be careful so that the fetus doesn’t have alcohol or caffeine- many would say that pregnancy and gestation is very involving work- no wonder that women during the course of that gestation might change their minds about how disconnected from the fetus they could be after it’s born- once they see a real, live baby- even if originally they intended to give it to someone else- a very deep connection to the baby, often known as “bonding.” That perspective says this is something that women shouldn’t agree to in advance in a binding way because like in any other relationship you might change your mind- like friendships you make that don’t last- it changes, who knows why? You can’t promise that you will be friends for someone for life- even in marriage, even when you take vows- marital bonds are undertaken with the expectation that they will continue for life; they won’t always. Divorce is not looked on favorably but it is not something that is impossible to happen because human relationships are complicated and don’t always survive. Pregnancy is a kind of human relationship.

This perspective stresses the kind of relationship that goes on- even if only in the mind of the woman. Also says that it is something that a woman should not be paid to do- typically, women are not paid to form relationships- if they want to do this as a voluntary act, perhaps they should. But the payment is not good for the women to do and not good for the child to come- does the child want to find out later that the person who bore it was paid $20,000 dollars to bear it- might not be a very good feeling for that child.

What kind of relationships the women who gestate children should have with the people who are raising children- should they be family member? Some think that family arrangeme4nts- if a sister gestates a child for another sister, that might be a good thing- but there are many situations when those family relationships could be very complicated- someone who gestates a child for her sister may not ultimately feel that the sister is raising the child the way she wants her to. What kinds of family friction could this create? Should it be anonymous? Should you have no relationship? Should the parents tell the child that s/he came from someone who was not their married parents? Some say yes, you should always tell- some say that no, you shouldn’t tell- the people raising the child are the true parents.

More complicated questions- whether the surrogate is using her own egg artificially inseminated with someone else’s sperm or is she using an embryo from the couple- very complicated questions as to universal health insurance as well- without coverage for reproductive services of all sorts (not true in Israel but is true in USA). Wealthy people can get services for surrogate motherhood- but people who are not wealthy may not have the money- this is not supported by government insurance. So should there be government funding?

The reason some would say there should is that it would make surrogacy available to other people who want to be parents and can’t carry children. The people who say they shouldn’t say there are many problems with this and it’s not medically necessary to have children- you might want them, but you don’t NEED them- no reason medical insurance should cover that and not cover all these other things that need to be covered. So what kind of funding should there be for this activity?

That is a view of many different questions that people in the field of bioethics do talk about when they talk about surrogate motherhood- whether autonomy should reign- what kinds of things would resolve custody disputes- whether payment should be done for this service.

Okay, thank you.

Rabbi Kenneth Brander: I too would like to begin my remarks by thanking Aaron for the work he has done and is beginning to do on behalf of undergrad MedEthics society and to thank Yonah for the unbelievable work that he has done. A little more over a year ago making trips back and forth to Boca Raton- was in apartment in Morgenstern 2 years ago? Time flies when you’re having fun. Yonah knocks on my door and says he wants to speak to me for a few minutes and an hour later finished sharing his vision for a Medical Ethics society. He has not only created an appropriate venue for it but he has found many special students who will continue to empower this undergrad Medical Ethics society- thank him for what he has done for YU.

Last time I spoke, I gave a class on PGD. It was in 501. Of course, there was dinner beforehand. About 2 months ago, a student came over to me and said, ‘I get a mazel tov- I got engaged.’ I didn’t really know who the student was but gave him a mazel tov, then asked why he was telling me that he was getting engaged? After all, I don’t really know him. So the person told me he met the person that he was going to marry at the PGD conference, so I’m hoping to get 1000 here, fellows. (Laughter)

Want to thank Dr. Asch not only for her unbelievable, insightful remarks but for the clarity of vision she brings to her ethics. She is a world-class ethicist- nothing that she talked about was secular; everything that she talked about was holy. Her capacity to share those ideals and set them up for us in ways where we can look at them through the prism of Jewish thought is totally kodesh, totally holy and is in no way secular. I want to thank her for the cogent way in which she shared some very important issues in such a way.

I prepared some sources- they are there for you- let’s begin and share some Torah for the next hour.

First page of our handout starts with a very important midrash that I’ve shared with some of you in the past and that is the recognition of the fact that God did not create a perfect world, but in fact created an imperfect world. God wished that we have partners and those partners that God wished is humankind. And while God creates an imperfect world, it’s up to us to perfect that world- we say that every time we daven- we’re here to be involved in tikkun olam.

Clearly medicine- clearly the idea of surrogacy- clearly actualizing the gift of a couple having children- is a celebration of the capacity for us to be partners with God using science.

Idea also highlighted in the Gemara in Bava Batra – a very famous dialogue between Turnis Rufus and Rabbi Akiva- Turnis Rufus was a very famous government and Rabbi Akiva represented the Jewish people before the destruction of the people of Beitar.

Turnis Rufus: The Jewish people are condemned to hell because they help the poor. See, if a king imprisoned a person and said not to give him food and water, and someone gave him food, the king would be upset. So if God makes someone poor, and you give him money, then you are going against God!

Rabbi Akiva: What if the king incarcerated not a subject but his CHILD. And he said no one should give his child food or drink- but someone sneaks in food and drink- wouldn’t the king be happy someone had saved his children? And we are called the children of God.

Rabbi Soloveitchik once explained this by saying that when someone has their fate set out for them- they’re poor, they can’t have children- how are we supposed to look at that.

Turnus Rufus says- you’re supposed to wear the glasses of God- God wants these people to be poor, and you help bring them out of poverty- you’re going to hell. Rabbi Akiva says it’s not our job to wear the glasses of God. It’s our job to be God’s partners and to empower him to help- if we can help get someone out of poverty- if a couple wishes to have children, we should support that dream through the gifts that science has given us- we should not look at this as changing destiny but rather as a celebration of the notion of tikkun olam.

Meiri in Sanhedrin has a very famous comment in his definitions of witchcraft and what is forbidden- he makes a very famous comment in Source #3- one should know that anything that is done through science is not considered magic, even when, as we know from Kabbalistic literature that there will come a time when we will learn how to create human beings WITHOUT having a sexual relationship, it is permitted to do this- because anything that happens through science is not considered magic. Anything that comes through the normal process of medicine is not considered an Amoraite action.

So in my introduction I have indicated that we can help others to have children- but it is not a halakhic mandate, if a couple cannot have children naturally, they do not have to find scientific ways to have children.

There’s a list of question after 120 years and one of them is “Tzipita l’yoshua’ –did you wait for the yeshua, the redemption of human kind? The second is “Asata b’pirya u’rivya?”meaning did you try to have children (not did you have children.) One is not halakhically mandated to use the gifts of science (financial/ psychological challenges) to do this. One sees that idea from a Tosfot in Pesachim- it says there that if a person is uncircumcised and cannot eat from a Paschal sacrifice- he is not obligated to go to an ubnormal degree- “heroic measures” in order to be able to fulfill commandments. That is particularly true by the idea of having children.

However, should one decide to do that, then there are certain issues, and what I would like to do is to share with you and contrast with you the notion of paternity and maternity. It’s very hard to discuss surrogacy without contrasting it to the concept of paternity. So we’ll spend a few minutes on the definition of paternity and then move to the idea of surrogacy.

So turn to source 5- we’ll notice that there’s a pasuk in Esther that says that Esther had no parents “Ki ein la av v’eim” and further, when her father and mother died, her mother died in conception, Mordechai took her as a child. So the Gemara asks- why the need to repeat twice in the same verse that she had no parents?

Gemara answers- source 6- to show that her mother died at childbirth and father died when she the child was conceived. This idea shows that they are parents even when they were not involved in rasing the child.

Source #7 is very important. Greatness of Talmud is that it does not always focus on real life events as much as it does in creating halakhic paradigms so that one can learn principles through which one can build up Jewish approaches.

“A high priest is not allowed to marry anybody that had sexual relations- whether the woman was divorced or widowed. So Ben Zoma was further asked- can a high priest marry a virgin who has become pregnant?”

So there’s a whole give and take- maybe it LOOKS like she didn’t have relations but she really did have relations. Gemara says no- there is the possibility that she never had relations but she conceived in the bath- so there is this idea, and I don’t think the Gemara means this in an exact way- is that one can bifurcate the sexual act and the concept of being pregnant. Trying to show you the difference between the gavra, the relationship, and the status quo of the woman.

So Gemara highlights this idea of woman becoming pregnant without having a relationship.

Source 9- based on this Gemara any single time a woman becomes pregnant without having a sexual relationship, the sperm donor is considered the father for all things. “Me’aviv nishma d’havei b’kol davar”- considered the father simply by having donated the sperm even if there is no sexual act at all.

Turn to next page- the Tashbetz in the 1300s amplifies R’ Shmuel Feivish and says the same thing- the sperm donor, even without a sexual relationship is considered the father- considered genetic donor.

Minchas Yitzchak, who is not known for his leftist tendencies or Modern Orthodox tendencies, but who is one of the greatest poskim of the past generations- speaks about a situation where a person has a limited sperm count and who in order to have children has an IUI- Interuterine Insemination (always uncomfortable speaking about this in front of others here who are well-versed in this) but basically an IUI where instead of sperm having to travel all the way up the fallopian tube, the sperm is put in a syringe, shot into a woman’s womb and placed at the entrance of the fallopian tube. Because, in layman’s tube, when sperm travels up the fallopian tubes, it’s like traveling the FDR- lots of potholes, a lot can die along the way- so the sperm will be destroyed and none might reach the fallopian tube to fertilize the egg. So the IUI is no need to travel on the FDR drive, we’ll create a flyover so that it can get to the fallopian tubes safe.

The Minchas Yitzchak therefore says that in any case of an IUI, “peshita li d’kayim ha’mitzvah”- they’ve definitely fulfilled the mitzvah of having children and the husband has definitely fulfilled the mitzvah, considered father even though there was no sexual act. Only thing is that you want to make sure that there’s certain hashgacha- certain supervision in the labs- so you want to make sure that you don’t fertilize the egg of the woman through IVF (when you harvest the egg of the woman and fertilize it within the lab and 3rd or 4th day afterwards it is returned to the womb of the woman)- won’t know which sperm is used if there’s not proper hashgacha, so you won’t know who the father is. So there has to be some hashgacha within the fertility lab- even though there are strict rule and regulations- the halakha requires stric OU supervision in labs (that’s not a joke- that’s halakha)- Cornell does it, Maimonides does it.

Next source- sperm donor is the father. So much so that R’ Zalman Auerbach says what happens if wife wishes to have children but the husband has no sperm. Where should you get sperm donation from? Since the definition of paternity is the sperm donor, both R’ Moshe and R’ Shlomo Zalman suggest that the sperm donor should be from a non-Jew. Because otherwise Yankel will donate his sperm, child will be born, and the child will go out with someone else Yankel donated sperm to or Yankel’s own child and then you could be marrying halakhicaly your own sister or brother. So R’ Moshe says that you should use non-Jewish sperm so that problem doesn’t arise.

Look at source 12- you’ll see that R’ Shlomo Zalman has a few things. First thing, you can inseminate the wife through IUI even when the woman is a niddah because there is no sexual act, so no concern over those issues. Then number daled- if you have to use sperm (I’m not saying he endorses it with a full embrace, because he has some issues about it) he says you should use a non-Jew.

R’ Moshe also says that you should use a non-Jew. R’ Moseh Feinsteins’ house was actually fire-bombed because of this teshuva by a sect of Orthodox Jewry who was not pleased with this teshuva.

R’ Shlomo Zalman’s house was not fire-bombed. One could ask why. Because R’ Moseh Feinstein’s work are more popular than R’ Shlomo Zalman’s first volume of Noam, which is not as well-known. SOY Sefarim sales all have Igros Moshe- Noam I haven’t found at any of the SOY Sefarim sales.

The most exciting thing about the paternity peace is an unbelievable idea found in the 1700s in the NOdeh b’ Yehudah. R’ Yechezkel Landau asked the following question:

We know that there’s a notion of ______. That when a woman is widowed and childless, she waits 3 months before she gets married again to see if she is pregnant by the first husband. Why do you wait 90 days? You ought to wait 93 days! The Nodeh b’Yehudah says. Because he passed away- it takes 3 days for the sperm to fertilize the egg in the Fallopian tube- so you should wait 3 days for the egg to be fertilized and then 90 days. Most Achronim ask this question and say 90 is a rounded- off answer.

Nodeh b’Yehudah has an unbelievable chiddush. If the woman is inseminated but the husband dies before the time of conception, and she was inseminated before he died, even though she could become pregnant with the sperm of her dead husband, she still goes through the act of chalitzah- because at the moment of death there was no child/ no conception. So you can have a case according to Nodeh b’Yehudah where the woman can be 5 months pregnant, but conception happened posthumously (after husband died.) According to Nodeh B’Yehudah, that woman would go through chalitzah because at the moment of death there is no child.

However, even though the woman goes through the process of chalitzah, this child is still considered the child of the father l’kol davar- if the father was a kohen, the child is a kohen. He says it’s a diyuk in the pasuk. And the point that’s important for us here is the idea of posthumous paternity.

You can have the idea of someone who expresses sperm and freezes it for a hundred years and then that sperm is injected into a spouse or another woman. The man could be dead- he could be a soldier and day. The wife who is a widow can say I want to have a child- and take her husband’s frozen sperm and have a child posthumously- according to the Noreh b’Yehudah- he is that man’s child. Even though that father was not around for conception, let alone his life.

The next page of the source- the Keren ha’Orah- basically disagrees with the Nodeh b’Yehudah- says he agrees with the notion of posthumous paternity- but says that the woman does not go through chalitzah right after husband dies.

Next page, 13C, see that R’ Shaul Yisraeli is furious that in one of the newspapers of HaTzofeh- a group of poskim said that if the person who expressed sperm died and now that sperm is inserted within a woman, the dead person is the father “l’kol davar.” The Rabbanim in Israel paskened that based on this Nodeh B’yehudah and Keren ha’Orah…R’ Shaul Yisraeli disagreed with this because he says the Nodeh b’Yehudah is not a good paradigm because the sperm was already within the woman when the husband died. But in our case, when you have to defrost the sperm (I’m using layterms, not scientific terms)- and then inject into the womb of the woman- that requires too much work to allow that person to become a posthumous father.

The jury is still out on this idea- some disagree with R’ Shaul Yisraeli- the bottom line that I want to show you is that it is clear that the genetic donor when it comes to the definitions of the father is the father- so much so that even in the 1700s that is the case.

Now how does that compare to the notion of paternity? There we have 4 different approaches. The jury is still out. I asked Rabbi Schachter today- he said the jury’s still out, machlokes among poskim.

In the case of a surrogate, in our simplistic definition of that, where the egg is a donation from one woman and the host mother, the one nurturing the fetus, is another woman. One woman donates the genetics- the other hosts the fertilized eggs. So you have a host mother and a genetic mother. Some say there is no mother. Others say that there are 2 mothers. Those are not normative approaches. The normative approaches are that the genetic mother is the mother or the host mother (the one doing all the work, the one who is nurturing, creating that bond)- THAT is the mother. As opposed to the father, where there is only one paradigm, and that is a genetic gift- and therefore the genetic giver is the father- when it comes to the m other if it can be bifurcated, there are those who say that the one who does the nurturing should be considered the mother. So that is the most normative approach. But there are major poskim, including the Eidah Charedis and Rav Goren who both say that they are genetic donors (probably the onoly time that Eidah Charedius and Rav Goren agree on this).

Let’s look at source 14- Targum Yonatan ben Uziel-I normally wouldn’t use this because it is Aggadata, usually don’t use Aggadata to define Halakha, but on the next page someone else used this aggadata for his approach- so I bring it down for intellectual honesty.

This says that when Leah was pregnant with Yosef, Rachel was pregnant with Dinah. (I’m happy that you’re perplexed.) The Targum Yonatan ben Uziel says that initially Leah was pregnant with Yosef, Rachel was pregnant with Dina. Leah realized that she was carrying a male, which meant that Rachel would contribute less to the 12 tribes than anyone else.

So look at source 14 where I have underlined- God heard the prayers of Leah and there was a change within the fetuses from one womb to the other and Yosef was then switched and put into the womb of Rachel, and Dinah was put into the womb of Leah. (I’ve ended your perplexity here.) So we would never hear anyone say that the mother of Yosef was Leah! The mother of Yosef is Rachel! But who donated the genetics for Yosef? It was LEAH who donated it. The host mother was Rachel. This is a proof, says R’ Shaul Yisraeli – this aggadata is the proof that the definition of maternity is the host mother, not the genetic donor.

Source 15- comment by R’ Ahron Soloveichik where he said the following. If you have a choice of defining the mother as host mother or real mother- post 40 days must do it, because pre 40 days the fertilized egg is not even considered a fetus, but only a sac of water. That is why it is permitted in stem cell research and it should be encouraged. So since there is this notion in halakha, therefore the mother that was involved in the development of the fetus in the first 40 days, namely the genetic donor, should not be considered the mother, especially when there is a woman who is involved with the development of the child post 40 days. You should view the genetic mother’s gift as “tozeret Yapan” – made in Japan. Do not in ANY WAY associate the genetic mother with this fetus. That is very important because then it allows the genetic donor not to be a Jew. Because if Judaism defines Jewish identity by the mother- if the genetic giver plays no role in that, then as R’ Ahron Soloveichik says with great clarity in source 16- last few words in the 6th line- count 6 lines from top after 1st word- you should not relate to the genetic gift no different than a synthetic material that says “made in Japan.” Therefore, a child born to a surrogate mother who has a genetic gift from a non-Jewish mother doesn’t need geirus- it’s a waste of time to do this.

This idea of the surrogate mother being the host mother is also found in a much-more complicated approach in a Gemara in Yevamos- found in an article in Techumin, the 5th volume- an exceptionally important volume on the notion of surrogacy- several articles there, very, very complicated that anyone who wants to be holy in these issues must go through, but happily we are blessed with Talmidei Chachamim who we can turn to for guidance.

Source 15- twin brothers who are converts- what’s the halakha? A ger, it’s as if they have been born anew. So if a family decides to convert after the children have been born, halakhically there is a severing of the relationship between parents and children even if they all convert- it’s as though you are reborn. What happens if a woman converts when she’s pregnant? So the mishna says there is some severing between those fetuses and the father. Why is that? Because the minute you go into the mikvah, any relationships that have been fully established have been severed on some level. So since the father’s relationship has already been established- given sperm, established paternity- relationship is severed. But the Gemara says that the relationship between the MOTHER and the fetus is not severed- it remains.

Asks R’ Zalman Nechemiah Goldberg- why is this? Because the father’s relationship with the children is already established by giving gift of genetic sperm- but the mother’s relationship is evolving by the nurturing of fetuses with her womb. So the relationship is not yet established- for that reason, the definition of maternity is not the genetic giver but rather the surrogate mother.

A source I did not bring down- R’ Elyashiv who is not a fan of IVF- but for those who are interested, brought down in Nishmas Avram- if already done, the definition of the mother is the host mother, the surrogate mother. This idea is highlighted by R’ Zalman Nechemiah Goldberg- this is known as the 5th Shulchan Aruch- there are great Jewish thinkers who think that the definition of the mother should be no different than the definition of the father- the “genetic gift.” Other great Jewish thinkers who think that the definition of the father and mother need to be different. Question, though- what if the mother is non-Jewish?

So, according to HIS point of view, you don’t need to convert them. But there’s a whole group of people who think otherwise! So I don’t want to create babies that are only kosher according to one approach- all the sudden you’ll have babies where it’s only kosher according to one rabbi, and non-kosher according to another baby. I don’t want there to be little Jews that are walking around and this one had a Jewish surrogate mother but non-Jewish donor, this one had a non-Jewish surrogate mother, etc.

So even though I believe that the definition of maternity is a host mother, any time the genetic mother is not Jewish, the conversion should be done. And then, because we are on the cutting edge of this issue- in 20 years from now when the child gets married- or 18 years old- I’m not trying to put any pressure on anybody despite my introductory comments- then we’ll decide whether that conversion was necessary or not because there are halakhic ramifications of who you can marry based on this. So R’ Zalman Goldberg is trying to have his cake and have it all. Personally, I always followed R’ Zalman Nechemiah Goldberg in his approach because it makes sense.

We’ve discussed the notion of maternity, paternity- where perhaps that genetic donor can even be a posthumous donor- now we’ve discussed issue of maternity- in case of maternity where genetic donor and host who nurtures fetus, there is a split between focus 4 ways.
1. No mother
2. Two different mothers (have to sit shiva for both)
3. Normative approach- host mother (but recognition that there’s a substantial group who say it’s the genetic mother- so there’s people like R’ Soloveitchik who don’t want to include this and others like R’ Zalman Nechemiah Goldberg who says that you should do a conversion l’chumrah- without blessings.)
4. Genetic mother

Thank you very much.

QUESTIONS

1. Question for Rabbi Brander- one thing we didn’t speak about are issues of mamzerus- place where the father donates sperm to a surrogate mother and the surrogate mother is both the egg mother and the pregnancy mother, but the surrogate was already married to someone else or in category of zonah or divorced- what about mamzerus?

Rabbi Brander: That’s a very good question. It seems that I actually gave a 2 and ½ hour class on that issue to the Rabbis of Yarchei Kallah. It would seem that if there are no issues of intimacy between the man and the woman, then you do not create mamzerus. Mamzerus requires intimacy- woman is married and you do not use non-Jewish sperm. That’s why R’ Moshe and R’ Shlomo Zalman want you to use non-Jewish sperm- but even if you use Jewish sperm, child is not considered a mamzer because there was not a physical relationship there.

Does everybody agree with that?

Brander: No, not everyone agrees with that. No one ever agrees with everything. It’s the normative approach and even in the summary that I gave to you- R’ Shlomo Zalman is a heavyweight- by the way, I DID bring you the source from R’ Elyashiv and that is on the back page, on page 20. But to give you the source that you asked about- if you look at source 12- you’ll see that in the middle there it says- “Ulam ein hazrah chashuva k’znus”- it’s really not zenus because it is not a sexual, intimate relationship.

One deiah in the Rishonim that says you don’t need it but 99% of poskim don’t use it.

Who would disagree?

Brander: It’s one of the Rishonim, you’ll excuse me if I forget who it is.

2. What I don’t understand is how you can feel that you feel so self-confident over who is a Jew and who is not a Jew. I lived in Israel for 11 years, sold my chametz, thought it was to a non-Jew, ultimately turned out, back in 70s, this person was indeed a Jew. I don’t mean to be offensive but this is basing people’s lives and communities on this- subquestion is that you’re still talking about siblings- doesn’t really matter whether that sibling is biological halakhically- I have found in my own family that there are very serious issues here that are ignored and are upsetting me.

Rabbi Brander: Well, I am sorry about the last bit, am willing to discuss with you- clearly discussing this in 45 minutes does not allow us to dwell on all these issues deeply. Removing the emotional components of this, which are very deep and need to be dealt with- in terms of sensitivity- but halakhically, R’ Moshe Feinstein asks that question about whether the sperm can come from a non-Jew. He says that if the sperm bank is based in a place where the majority of the inhabitants are non-Jewish, then one can consider the sperm non-Jewish. He is willing to discount that issue once you have the notion of “rov.” That particular issue is not seen in the small section of the source that I gave you from R’ Moshe Feinstein but if you look at the source, you’ll see he deals with that issue.

3. You said according to halakha, you are supposed to be “osek” b’pri u’reviyah- what if for example there’s a wealthy person who can finance the surrogacy that would otherwise not happen. Would he be- if he or she- if they didn’t have their own children, would it be considered osek b’pri u’reviyah?

Rabbi Brander: I think they would be- my point is that one is not halakhically obligated to go through- whether wealthy or not- psychological issues are important. Issues of surrogacy is a psychologically draining issue. It’s not a walk in the park. Especially in a case where the couple- the woman has to harvest the appropriate amount of follicles- has to trick the body into ovulating more than one at the same time- halakha does not require one to go through the psychological trauma in order to fulfill the mitzvah using IVF surrogacy. If you wish to, it can celebrate that. My point was that simply through trying to have a child in a natural way, one has fulfilled one’s necessary capacity- one does not need to use these issues- you can, but you don’t need to.

I’m talking about a third party- if a third party financed this pregnancy- would this fulfill his peru u’revu?

Rabbi Brander: That’s a great question- I don’t know the answer- I don’t think so but I don’t know

4. By R’ Zalman Nechemiah Goldberg- what he says- if it’s too feminist for you, then you don’t have to answer it- he says in vav – the word “ben”- what would you say about what he means- is he just using general terminology?

Rabbi Brander: Definitely “ben” or “bat.” Definitely one or the other. Whether you like the Hebrew or not, a lot of times when you speak in general about something, you’ll use one gender more than another- it’s definitely “ben” or “bat.”

Well, yeah, but I was just thinking- he’s being so specific…

Rabbi Brander: Well, this is the challenge of taking a thirty page article and giving you five pages. So if you read most of the article then you’ll see he means both. I’m not into doctoring the language

5. If you have a couple who is getting ready for an IUI or IVF, does halakha place restrictions upon the method of extracting sperm on the husband?

Rabbi Brander: That’s a great question. That is not a topic that I would feel comfortable discussing in this forum like this. Just to let you know, there are protocols discussed- different protocols in Yerushalayim vs Bnei Brak- my training on these issues is Israel-centric, not USA-centric. There are differences; clearly we try to make sure that the sperm is expressed without compromising the integrity of the sperm- so if we can do it in a way where husband can have relations with his wife and still capture the sperm, that would be the best way. Otherwise, protocols. Overarching goal is tzniut- focus on end game- appropriate and as many gametes as possible- in order to be able for the couple to have children.

Thank you very much.