Chazal (Niddah 31a) teach that there are three partners in the formation of a child – the father, the mother, and Hashem:

His father supplies the white seed, out of which are formed the child’s bones, sinews, nails, the brain in his head and the white in his eye. His mother supplies the red seed, out of which are formed his skin, flesh, hair, blood and the black of his eye. And G-d gives him the spirit and the breath, beauty of features, eyesight, the power of hearing and the ability to speak and to walk, understanding and discernment.

The mother, on whom this article will focus, has in fact two roles in the creation of a child:

  1. Maturing and releasing the egg from which the fetus is formed. It is this egg, or ovum, that the Sages refer to as the “red seed.”
  2. Providing the required conditions for the fetus to develop (in the uterus), and giving birth to the fully developed infant.

Modern medical technology has enabled the separation of these two roles. Women whose uterus is unable to carry a fetus, or who have difficulty becoming pregnant, are able to enter into a surrogacy arrangement: A fertilized egg is implanted into another woman who agrees to carry the pregnancy and to deliver the child. After birth, the child is returned to its genetic mother.

Conversely, a woman whose eggs are unfit for successful fertilization can receive a  fertile egg from another woman, and proceed to carry the pregnancy and give birth to the child.

These procedures give rise to a number of halachic questions (including the halachic permissibility of various procedures – these questions are beyond the scope of this article), among them the matter of halachic motherhood.

Who is the mother of the child? Is it the genetic mother who supplied the egg (the genetic properties of the child are embodied in the egg), or the birth mother who actually gave birth to the child? In other words: Which of the two female roles in the reproductive cycle is primary in establishing halachic motherhood?

As we will see, one of the most interesting sources for this question emerges from a passage in this week’s parashah.

Deciding Motherhood

Rabbi Shlomo Zalman Auerbach, who was approached concerning questions of egg donations and surrogate motherhood, remained uncertain as to the halachic lineage. A number of testimonies indicate that he may have held different opinions at different times.

Rabbi Avigdor Neventzal, rabbi of the Old City of Jerusalem and among the foremost disciples of Rabbi Auerbach, testified that he heard from his mentor that the egg donor is the halachic mother.[2] This means that motherhood is contingent on the genetic code of the child, which depends on the ovum, and not on birth.

Prof. Zeev Lev, however, writes (Emek Halachah 2) that he heard from Rabbi Auerbach that motherhood is contingent on giving birth, and not on the egg donor.

Nishmas Avraham (Even Ha-Ezer Siman 1, letter 6, no. 11) writes the following:

“Rabbi Shlomo Zalman Auerbach wrote to me that in his opinion one should not undergo this procedure willfully, because it would cause a genealogical muddle, and it goes against the outlook of the Torah. If the deed had already been done, the Gaon, of blessed memory, told me that although other authorities had debated the matter and attempted to bring proofs, his opinion was that there is no concrete proof upon which to decide the halachic mother – the woman from whom the egg was taken, or the surrogate.

“[He said that] even according to those opinions that the surrogate birth mother is the mother, there remains a question how to rule when a fetus is taken from one woman and implanted into the uterus of a surrogate, who eventually gives birth to the infant. Would we say that even in a late transplant the surrogate is considered the mother? If so, how young must the fetus be for this to be true – less than forty days, less than three months, or perhaps even when the pregnancy has entered the ninth month?

“Therefore, his opinion was that for all these questions, which have repercussions for Torah laws, one must be stringent. If the surrogate is not Jewish, the child must undergo conversion, to remove doubt. On the other hand, if the surrogate non-Jew was immersed for conversion during the period of her pregnancy, the conversion will not be effective for the fetus, because of the possibility that she is not considered the child’s mother, but is rather similar to a wet nurse who received a child as a charge.”

It thus appears that Rabbi Auerbach never reached a clear verdict concerning the matter, and therefore decided that one should act stringently to consider both women – the egg donor and the surrogate or birth mother – as mothers of the child, out of doubt. Because of the doubt involved, Rabbi Auerbach ruled that one should not willfully undergo the procedure.

The Nishmas Avraham continues to mention that Rabbi Elyashiv zt”l was likewise undecided as to the matter of halachic motherhood, and therefore considered both the egg donor and the surrogate as mothers with regard to Torah law. Thus, the child may not marry blood relatives of both women; he must also give both women the respect afforded to a mother – he may not hit or curse them, and he must attend to both of their needs.

Inter-Womb Transfer

A fascinating proof that has been noted concerning the question of motherhood is derived from the motherhood of Dinah. The Gemara (Berachos 60a) cites the following:

“The verse writes, ‘After this she gave birth to a daughter, and she called her name Dinah.’ What do the words ‘after this’ teach us? Rav said, it means after Leah passed judgment on herself. Knowing that twelve tribes would be born to Yaakov, and that six had already been born to her and four to the maidservants reaching a total of ten, Leah said: ‘If this will be a boy, my sister Rachel will be less than the maidservants.’ Immediately, she [the fetus is Leah’s womb] became a daughter, as the verse says, ‘She called her name Dinah.'”

It appears from this source that the fetus inside Leah’s womb actually turned into a girl; assuming that Rachel was already pregnant, her fetus would correspondingly have turned into a boy.

The Maharsha, however, cites the Paane’ach Raza that the fetus which Rachel was carrying was miraculously transferred to Leah’s womb, and Leah’s fetus transferred to Rachel’s womb. This idea is stated explicitly in Targum Yonasan ben Uziel (Bereishis 30:21):

“After this she gave birth to a girl, and she called her name Dinah, because she declared that it is a judgment from Hashem that half of the tribes should be born from me, but two tribes should be born from my sister Rachel, just as two tribes were born from each one of the maidservants. Hashem heard Leah’s prayer, and the fetuses were switched in their wombs: Yosef was placed in the womb of Rachel, and Dinah in the womb of Leah.”

It emerges that the initial phase of Dinah’s pregnancy took place in Rachel’s womb. Nevertheless, Dinah is called “Leah’s daughter,” and her lineage is clearly associated with Leah, who gave birth to her. Addressing the issue of halachic motherhood, Rabbi Moshe Shternbuch writes (Teshuvos Ve-Hanhagos Vol. 2, no. 689):

“I have seen some who bring a proof from Dinah, daughter of Yaakov, of whom the Gemara states that she was transferred from the womb of Rachel to Leah, and Yosef from Leah to Rachel. If so, it seems that even though the conception of Yosef was in Leah’s womb, nevertheless he is called the son of Rachel, because the main pregnancy and birth took place within Rachel.”

Of the two women involved in an egg donation procedure – the egg donor and the carrier of the pregnancy – the birth of Dinah thus seems to prove that the latter, who carries the pregnancy and gives birth to the child, is the true mother.

Rabbi Shternbuch, however, does not accept this proof as conclusive:

This proof may be deferred, and we cannot bring a proof from a miracle. In principle, logic dictates that the egg donor should be considered the mother, because she has a part in the child and his [genetic] makeup is similar to hers. Yosef, who was miraculously transferred from one womb to another, was entirely transferred, leaving no trace of Leah’s ovum—therefore the child was Rachel’s alone. No proof may be brought from miracles.

Responsa Tzur Yaakov (no. 28) suggests a different deferral of the proof from the birth of Dinah:

“I believe it to be simple – without any contradiction – that the body of Yosef in Leah’s womb became female, and the body of Dinah in Rachel’s womb became male, and [only] their spirits transferred from one womb to the other. When the body of Yosef in Leah’s womb transformed into a female it received the spirit of Dinah from Rachel’s womb, and vice versa. This is simple.”

Whose Daughter was Dinah?

Contrary to the above, some have mentioned the birth of Dinah as proof of the other alternative, that the genealogy of the child does not follow the carrier of the pregnancy but rather the egg donor.

On the verse (Bereishis 46:10), “And Saul the son of the Canaanite,” Rashi comments: “The son of Dinah, who cohabited with a Canaanite. When they killed Shechem, Dinah refused to leave the town until Shimon swore he would marry her.” The commentary Moshav Zekenim questions how Shimon could marry his sister – surely a maternal sister is prohibited even for non-Jews since non-Jewish lineage follows the maternal line? He suggests the following answer:

“One may answer that the principle pregnancy of Dinah took place in Rachel’s womb. This is the meaning behind the words of the piut (Shacharis of Rosh Hashanah): The course of nature He transferred in the maker’s vessel.

The same idea is expressed in the commentary of Tosafos Ha-Shalem to the Torah, in the name of Riva: “It is exceedingly difficult that Shimon should have married his paternal and maternal sister! One may answer that the principle pregnancy was in Rachel’s womb.”

It is clear from the Baalei Tosafos that although Dinah was born to Leah, they say that her genealogy follows Rachel because the beginning of her pregnancy was carried by Rachel. Shimon could therefore take Dinah as a wife, because she is considered the daughter of Rachel, and therefore not his maternal sister.

Proving Halachah from Agaddah

Concerning halachic rulings, however, the proof from Dinah’s birth is not sufficient.

Responsa Noda Biyehudah (Tinyana, Yoreh De’ah 161) has written that the main purpose of midrashim is to give mussar, to make allusions, and to present parables. “Although these may be fundamental to the religion, they do not address halachic rulings – therefore, we do not derive halachic rulings from them at all.”

Indeed, the Geonim have already stated that “we do not rely on the aggados” (Rav Saadya Gaon, Otzar Ha-Geonim, Chagigah p. 65; Rav Shrirah Gaon, Teshuvos Ha-Geonim, no. 157), and the Rama of Pano (no. 36) has written than “we do not learn halachah from aggadah” – a statement echoed in the writings of many halachic authorities.

Thus, we cannot rely on a proof (one way or the other) from the aggadic narrative of Dinah’s birth to determine the halachah, the more so for so grave an issue as the child’s genealogy which applies to the general purity of Israel. Even if it were possible to bring proofs from aggadah, we have already cited Rabbi Moshe Shternbuch that we cannot bring proof from miracles.

Grafting and Orlah

The concept of halachic motherhood was raised in the year 1928 in connection with the issue of ovarian transplantation, in a collection of halachic articles entitled The Talmud and Science (Shaar 3, anaf 25). The author mentions that doctors had succeeded in performing an ovarian transplantation,[3] and discusses the implications of halachic motherhood:

“This is my response: The Gemara (Sotah 43b) states that when a young branch is grafted onto a tree, the branch is annulled by the tree, and there is no prohibition of orlah. Tosafos in Avodah Zarah write that “even according to the opinion that ‘this and this cause’ is prohibited (there are two causes and one is not allowed to benefit from one of these causes) here [the fruit] is permitted because the young branch is annulled by the tree, and it is considered as if it did not exist.” See also the Gemara in Menachos (69b) which states that everything is determined by the principle tree.

In light of this, the ovary would similarly be annulled in the body of the recipient, and is considered part of her body. The woman who gives birth is therefore the mother of the child […] The ovary has been entirely annulled in the body of the woman, and has become a bone among her bones – a single body of flesh.”

The proof from the case of grafting was already mentioned by Rabbi Binyamin Arieh Ha-Kohen Weiss, the Rabbi of Chernobyl, in his Even Yekarah (5673 (1913), no. 28), who addressed the question of transplantations well ahead of its medical possibilities.

Other authorities (Shut Beis Avi, Vol. 1, Kuntress Rofeh Kol Basar, no. 186) have written to defer the proof, and some argue that ova, and certainly ovaries, cannot be compared to saplings, and are rather comparable to branches with fruit on, which are not annulled to the greater tree (Nedarim 57b).

Tree-Birds

In following sections, The Talmud and World Science brings additional proof to strengthen his stance that the woman who gives birth is the true mother. The source he suggests is an intriguing ruling of the Shulchan Aruch (Yoreh De’ah 84:15): “Species of birds that grow upon a tree, and hang from the tree by their beaks, are prohibited by the transgression of all the creeping things that creep on the earth.” The Darkei Teshuvah cites from Or Ha-Chamah who describes the nature of these birds:

“I have heard from tellers of truth that in the land of India there is a tree whose fruit become a flying fowl. He said that it is found on the shores of England – small birds emerge from the tree, and before they mature they hang with their mouths. After they are fully grown they drop into the water, and propel themselves. Aristotle has referred to them in his encyclopedia of animals, entitled Britanio.”

A further description of these birds is found in Sefer Ha-Bris (Part 1, maamar 11, Chap. 4): “There is also a species of bird that grows on trees, and when it is mature it falls from the tree and lives. In Ireland, there are several ducks that grow on trees planted upon ponds of water, which finally drop from the tree to the water, and continue to grow and live in the water.”

We thus find a type of creature which breeds by sowing its seeds (or laying its eggs) in a tree, from which a bird eventually emerges. The bird remains connected to the tree by its mouth until it is fully matured, at which time it drops from the tree to the pond and continues to live normally in the water below. The seed itself, of course, originates in a bird, whereas the development of the seed into a life-form is hosted by the tree.

Significantly, the Shulchan Aruch rules that the resultant creature is considered a creature that creeps on the ground – meaning that the species is not determined by the source of the seed, but rather by the environment that brought the seed to life. Although the origin of the seed is a bird, the creature that emerges from the tree is not considered a bird, but rather a creeper that creeps on the ground.

The issue of egg donation (or surrogate motherhood) appears to be comparable with the formation of the tree-bird. An egg is taken from one woman, to be developed and brought to life by a second woman – just as the tree develops the egg laid by the bird into a living creature. The ruling of the Shulchan Aruch, which determines the species by the action of the tree, indicates that the genealogy of the child follows the second woman, who would be the halachic mother of the child.

After citing this proof, The Talmud and World Science concludes: “When I related these matters before my Rabbi and mentor Rabbi Meir Arik, of blessed memory, he confirmed all of the above as being halachically correct.”

A Conflicting Opinion

Contrary to the ruling of the Shulchan Aruch, however, the Mordechai (Chulin 735) cites authorities who maintain that the birds are permitted for consumption, and require ritual slaughter as all other fowl:

“Birds that grow in trees: Some maintain that they do not require ritual slaughter, because they do not reproduce, and they are equivalent to a piece of wood. However, Rabbi Yehudah said that he heard from his father that Rabbeinu Tam required that they be ritually slaughtered. Ri also instructed me, as a halachic ruling, that they be ritually slaughtered.”

The Shach (Yoreh De’ah 84:41) cites the Maharshal (Yam Shel Shlomo, Chulin 9:9) as ruling according to this opinion:

“It appears that the principle ruling is the lenient one. What if the birds grew in a tree? Surely they possess all the signs of purity required by fowl, and what difference does it make if they were created from an egg, or if they were created from a tree – it is no worse than a kosher bird that emanated from a treif egg, which is permitted. […] Furthermore, the initial creation of birds was from rekak, which is a combination of earth and water, and these [birds] too grow from a tree which draws its lifeline from the earth, yet also grows upon water, and their first creation occurs when they fall into water – so I have heard.”

Thus, the halachic conclusion remains unclear.

In conclusion, it is noteworthy that when these proof were mentioned to Rav Shlomo Zalman Auerbach, his reply (as cited by Professor Steinberg) was to defer the proofs, explaining that proofs may not be brought from trees or animals to human beings.

As noted above, the halachic ruling of several authorities is therefore that both mothers must be treated as halachic mothers, lechumrah, for all (Torah) halachic purposes.

 


[1]           The author wishes to credit Rabbi Zvi Ryzman’s long and detailed article on the subject of ovarian transplantation, which was instrumental in writing this article.

[2]             Collected Articles for the Second International Conference of Medicine, Halachah and Ethics, published by the Shlezinger Institute, p. 26, note 67.

[3]             Based on medical history, the nature of the transplantation is unclear. At the turn of the century, organ transplants were virtually unknown (although a cornea transplant was performed in 1905, the first successful transplant of a major organ only took place in 1954, when a kidney was successfully transplanted), and the first successful ovary transplant only took place in 2008.

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