There was a married couple who had fertility problems so they hired a surrogate mother to carry their baby to term. They got divorced while the surrogate was pregnant. They informed the surrogate that they wanted her to abort the unborn baby.
First question: Since the child is not wanted by either of the parents because they are getting divorced, does the surrogate have to do as they ask?
Secondly, if the surrogate mother decides to carry the baby to term, what is the status of the child and what are the obligations the parents have?
Answer:
This is a difficult question.
The halachic status of children born to surrogate mothers remains unresolved, the main question being the determination of the mother. Some poskim have leaned towards the “genetic” mother, whereas others have leaned towards the mother who actually gives birth to the child. Many have expressed doubt concerning the matter, finding the various proofs brought from passages in the Talmud to be inconclusive. Therefore, the status of the child is unclear, though some consider it the child of its genetic parents. The abortion would thus be prohibited even in the surrogate is not Jewish (the question does not clarify this point), and the surrogate does not (and should not) do as the genetic parents request (even if the child is theirs, they have no right to abort).
Further to the above, the question (the status of the child and the obligation of parents) is beyond the scope of this forum, and should be addressed to the leading halachic decisors in the US. Naturally, the question could also involve intricate legal issues, and a lawyer should be consulted.
