Surrogate Motherhood as a Life-Saving Measure in Jewish Law

- W. F. Silverman, Ph.D. and E.D. Clark, J.D.
Department of Morphology, Zlotowski Center for Neuroscience, Ben-Gurion University of the Negev, Beer Sheva 84 103, Israel
Email: szeev@bgumail.bgu.ac.il
Eubios Journal of Asian and International Bioethics 9 (1999), 101-104.


Abstract

Conservative ethical systems, particularly organized religions, are frequently at odds with the means, if not the goals of the new reproductive technologies. Among the most problematic measures adopted in recent years to allow childless women to raise genetically related offspring is surrogate motherhood. Traditional Jewish law, or Halakha, notwithstanding this reluctance, is, nevertheless, more likely than many others to find reasons to justify the practice, given its well-known stance viz procreation and its leniency regarding the new reproductive technologies. In the following article, we ask whether Halakha, which allows abortion to save the life of a mother, would sanction the employment of a surrogacy arrangement in the case where pregnancy threats her life, in order to save the fetus as well.

Introduction

Ethicists have generally viewed surrogate parenting arrangements in terms of a stark moral choice: between the tragedy of infertility on the one hand, and the potential for exploitation of the host mother, on the other. Yet, surrogacy should not be judged solely as a fertility procedure. Suppose, for example, a pregnant woman's life is threatened by her pregnancy. In such a case, virtually every ethical system would approve aborting the fetus to save the life of the mother. However, medical technology now permits the implantation of a preembryo or conceptus to the uterus of another, and may eventually provide the means for transfer of an already implanted embryo or fetus from the genetic mother to a surrogate or an 'artificial womb'. The choice in such a case, therefore, is not between surrogate parenting and childlessness, but between surrogacy and the death of an embryo. Such a scenario should not be dismissed as merely hypothetical.

Conditions which could render pregnancy life-threatening are not rare. Consider the case of a pregnant woman with Marfan's syndrome, a genetic disorder affecting the eyes, bones and cardiovascular system (1). While successful pregnancies in women with Marfan's syndrome have been documented, the increased morbidity and mortality associated with the disorder leads physicians to discourage women with the syndrome who have previously exhibited cardiovascular complications from becoming pregnant, and from continuing to term if they do (2). Indeed, therapeutic abortion is a frequent outcome of pregnancies in women with Marfan's, though verifiable statistics are not readily available. Many value systems, established religions, in particular, are doctrinally opposed to - or at least antipathic towards abortion, and might, therefore, be favorably disposed towards a measure, like embryo transfer and surrogacy which offers the possibility of saving the life of both the mother and the embryo. The situation, however, is complicated by a host of potential legal and moral objections associated with surrogacy which could argue against its being employed in such cases.

The issue of surrogate parenting arrangements has received attention from contemporary authorities in traditional Jewish law or 'Halakha'. To date, however, halakhists have extensively explored only the question of maternity, i.e., whether the legal mother of the child born from a surrogate arrangement is the host/gestation mother or rather the genetic/donor mother, but have not examined the broader moral issues relating to surrogacy. In the example cited above in which the life of a pregnant woman with Marfan's disease is threatened by her pregnancy, halakhic principles justify aborting the fetus to save the life of the woman. As a matter of Jewish law, the life of an embryo/fetus is worth saving, albeit not at the cost of the mother's life. But if a woman with Marfan's syndrome became pregnant, would Halakhah mandate therapeutic abortion or permit the transfer of the embryo/fetus to a host mother in a surrogacy arrangement?

Halakhic Considerations Regarding Surrogate Motherhood

Abortion and the Law of the Pursuer (Rodef)

Under Jewish law, a fetus which threatens the life of its mother may be aborted (3,4). The question, however, is whether abortion of the fetus in such a situation is permitted or mandated. In other words, is one obligated to abort the embryo/fetus or must one pursue an alternative course, if available, which would preserve the life of the embryo/fetus as well as eliminate the threat to the mother's life? The law permitting abortion, found in the Mishnah, a Hebrew law code completed in the third century states: "If a woman in labor has a [life-threatening] difficulty, one dismembers the embryo within her, removing it limb by limb, for her life takes precedence over its life." Thus, it is clearly established that saving the mother's life is the Halakhah's first priority; but the Mishnah does not rule out the use of alternative methods to save her life. Indeed, one of the most important of the later codifiers of the Halakha, Moses Maimonides, ruled that abortion is permitted (as opposed to required) in the case of a fetus which threatens its mother's life, "because it is like a pursuer (rodef in Hebrew) seeking to kill her" (5). A rodef is one who is threatening the life of another and may therefore be killed in an act akin to self-defense.

Whether or not the fetus may be viewed as its mother's pursuer has been a matter of considerable controversy in past and contemporary halachic discussions. Nevertheless, if the fetus does have the status of pursuer, the question of whether a therapeutic abortion may be mandatory is readily resolved. A pursuer may be killed only if a less severe measure, such as maiming, would not prevent the pursuer from committing his crime (6). A number of more recent authorities have agreed that abortion to save a mother's life is not mandatory. One such ruling permits a pregnant woman with terminal cancer to carry to term, though the pregnancy might shorten her own life (7). Assuming then that abortion is (at least) not mandatory where non-lethal options exist, the question remains whether surrogacy is a legitimate alternative under Jewish law, or, even mandatory when available to save both the mother and the baby. But surrogate parenting arrangements might be halakhically forbidden for any of the following reasons: 1. questions regarding maternity; 2. physical risk to the host; 3. social considerations, e.g., exploitation of women, commodification of babies, etc. 4. concern for the genetic health of the child. These issues will be explored briefly below.

The Issue of Maternity

The advent of surrogate motherhood has provoked vigorous discussion among contemporary halakhists regarding the question of maternity, viz., whether the genetic mother or birth mother bears the fundamental relationship to the child for purposes of Jewish law. Maternity is a determining factor in a wide range of halakhic issues, including primogeniture, mourning obligation, consanguinity, and personal status as Jew/Gentile.

The question of who is the halakhic mother of the fetus has direct and practical implications for the implementation of surrogacy arrangements. Because incestuous sexual relations constitute a grave biblical prohibition with dire consequences, Jewish law prescribes a strict policy aimed at preventing unintended incest. For example, the adoption by a Jewish couple of a Jewish child is generally discouraged, out of concern lest the adopted child unknowingly marry a sibling from its natural father or mother. This aim of preventing incest may limit the choice of surrogate mothers, depending upon whether the genetic or birth mother is the legal mother in the eyes of Halakhah. According to the school of thought ascribing maternity to the gestational mother, one should avoid recruiting a Jewish woman as a surrogate mother for a Jewish couple, since this woman would be the legal mother of the child. Hence, any other offspring of the gestational mother would be natural siblings of that child whom the child would be prohibited from marrying. If the child were unaware of the identity of its gestational mother, however, the possibility exists that he could unintentionally engage in an incestuous marriage with his own sibling. On the other hand, according to those who maintain that the genetic mother is the legal mother of the child, the identity of the surrogate mother has no legal consequences for the child. Therefore, the surrogate parent may be a Jew or gentile, a family member or a total stranger.

Nevertheless, while the question of who is the halakhic mother of the fetus has direct and practical implications for the implementation of surrogacy arrangements (primarily because of the risk, however remote, of resultant incestuous sexual relations, as discussed above), the question seems peripheral where the life of the genetic mother and of her unborn child are in danger. In any case, halakhic conversion to Judaism is just as effective as matrilineal descent in providing for the Jewish status of any individual, which, in turn, can have consequences with regard to many aspects of Jewish life.

Risks to Host Mother

Another critical issue regarding the halakhic sanction of surrogacy arrangements is whether such arrangements pose serious risks to the physical health of the host . Quasi-surgical procedures commonly used to impregnate a host in a surrogate relationship include gamete intrafallopian transfer (GIFT) and zygote intrafallopian transfer (ZIFT), whereby sperm and ovum on the one hand and a fertilized egg or preembryo on the other are implanted directly into the uterus or Fallopian tube. Gametes or zygotes are obtained from the donor and implanted into the host either via laparoscopy under general anesthesia or transvaginally with only local or no anesthesia. Each of these present inherent risks, primarily related to the possibility of hemorrhage following perforation of the Fallopian tube during cannulation, and introduction of infection. In addition, the risk of ectopic pregnancy is significantly increased following these procedures (8). Nevertheless, the process of embryo transfer as currently practiced has proven to be safe, with no greater incidence of lethal complications to the recipient observed then occur during the course of routine pregnancies (9). Of course, pregnancy is itself associated with potentially lethal complications such as the sepsis and acute hypertension associated with preeclamsia (10). Finally, potential for psychological damage to the host resulting from the surrender of the resulting child to the contracting couple continues to be studied. It seems reasonable, however, to assume that routine and universally accepted adoption arrangements involve similar or equivalent risk.

Although Halakha permits one to undertake health risks for the purpose of procreation, in the case of the surrogate mother, who intends to give up the child after birth, procedures like GIFT and ZIFT might constitute elective surgery, which is generally prohibited in Jewish law (11). A cardinal tenent of Halakha, however, is that to save a life, virtually all other commandments are suspended. Nevertheless, contemporary authorities have largely agreed that risking one's life to save the life of another is neither mandatory nor prohibited, but a noble and pious act (12). In any case, these sources do not address the issue of saving prenatal life. For the minority who prohibit surgery to save the life of another, the distinction is immaterial: if saving a human life does not warrant self-endangerment, the saving of an embryo would certainly not mandate it. But with respect to those who view the risking of life to save another as mandatory or permitted, the question remains whether such a rule would extend to a case in which prenatal life is at risk. In any case, we have noted that relatively little risk to the host is involved in embryo transfer.

The Value of Fetal Life

Is the life of an embryo, from the viewpoint of Halakha, of equal value relative to a mature person or even a neonate? The answer from biblical and talmudic sources is clearly 'no' (3), though many sources indicate that the value of fetal life is hardly negligible. Indeed, the Talmud rules that one may desecrate the Sabbath in order to save the life of a fetus of a woman who has died in childbirth (13). On its face, this rule indicates a high value in saving fetal life. Ordinarily, the desecration of the Sabbath is a capital crime; one has limited permission to desecrate the Sabbath in order to save a human life, on the theory that the life that will be saved will observe many more Sabbaths. The perspective emerging from the talmudic sources is an intermediate one in fact: the fetus is accorded the status of a 'prospective' human being of great intrinsic worth, though slightly less than that of one already born. Thus, transfer of the embryo in the Marfan's case might well be justified on the basis of 'saving a life'.

Social/Ethical Considerations

A number of compelling ethical objections have been raised against surrogate motherhood. One key concern is that of economic exploitation. Critics have pointed out that poor and working class women are the most likely candidates to serve as surrogates, lured by the offer of financial compensation from affluent, childless couples. Halakhah does not give effect to a contract entered into under duress (14). However, if a person accepts payment under a contract, this creates a presumption that the contract was entered into willingly and, Halakha generally does not recognize the notion of "self-imposed" duress. In short, Jewish law assumes that economic privation is a valid motivation for entering a contract. In addition, Halakha opposes compelling a person to perform any kind of labor against that person's will (15). In the case of a surrogacy arrangement, therefore, Jewish law would not void a woman's contract to serve as a surrogate for another woman. On the other hand, because a surrogacy contract calls for services to be performed by the surrogate, the surrogate would likely have the right to withdraw from the contract at any time, and for any reason.

A second concern voiced by critics of surrogate arrangements relates to concerns that surrogacy, pursued on a widespread commercial basis, would lead to a "commodification" of children, whereby infants are viewed less as human beings than objects of commerce. The value of motherhood itself, in this view, would be reduced to a kind of paid labor. With this in mind, former Chief Rabbi of Great Britain, Immanuel Jakobovits declared that "to use another person as an 'incubator' and then take from her the child she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity (16)." The objection here is principally to the [purely] commercial aspect of the arrangement. As currently practiced, however, monies transferred to the surrogate mother by the genetic mother are typically considered remuneration for costs incurred, etc. Given this, and in the case of an arrangement precipitated by a life-threatening condition, objections raised to the problem of commodification are probably not serious.

In the context of a pregnancy against the backdrop of severe genetic disease, surrogate parenthood raises yet another issue, namely, the opportunity to prevent the inheritance of defective genetic material. Proponents of eugenics would argue that, ethically speaking, a woman with Marfan's should be discouraged from employing a surrogate, since this would pass on to the resulting child her abnormal and deleterious gene(s) (17). Jewish law is not oblivious to concerns for the health of prospective children. Thus, for example, the Talmud advises against choosing a spouse from a family with a history of epilepsy (18). On the other hand, there is no source suggesting that, in the context of marriage, one may refrain from having children in order to prevent a heritable disease from being passed on to one's children. This is especially the case with respect to Jewish males, who are obligated by Halakhah to marry and sire children. In contrast, because of the inherent risks to life of childbearing, the injunction to procreate was not imposed upon females. Hence, a woman who chose not to have children for fear of passing on an abnormal gene would not be abstaining from a legal obligation. On the other hand, neither does Jewish law mandate that a woman refrain from childbearing, except where it would pose a certain threat to her own life. The question of what halakhic obligation, if any, a person has to avoid passing on defective genes has not been adequately discussed. In fact, the primary source cited in responsa on the topic is the Talmudic account of an episode in which the prophet Isaiah informs King Hezekiah of a divine decree of death as punishment for failing to fulfill his obligation to procreate. When Hezekiah protests that he did so in order to thwart a prophecy that his future children would be unworthy, Isaiah rebukes him: "How do you presume to delve in to God's secrets? What you are commanded you must do, and what is pleasing to God he will do." (19) It may be that modern biomedical science's uncovering of many of these secrets has now altered our obligations. Serious consideration of this question is urgently needed.

In conclusion, contemporary halakhists have expressed grave reservations about surrogacy arrangements under normal circumstances (20). Nevertheless, from the preceding discussion, neither social nor halakhic issues would appear to proscribe the use of surrogacy arrangements to preserve the life of an embryo in the case where its further development might endanger life. Halakhah draws distinctions between ordinary circumstances and extreme situations. Activities which are generally discouraged may become permitted or even obligatory when circumstances warrant. Therefore, the legitimacy of surrogacy in a specific situation, such as a Marfan's pregnancy, or where chemo/radiation therapy may be required to save the life of a pregnant woman suffering from cancer remains a halakhic possibility.


References
1. Maternal Genetic Disease, Isada, N.B., Drugan, A., Johnson, M.P. and M.I. Evans, (Eds.), Appleton & Lange, Stamford, Ct., 1996. Isolated in recent years to chromosome 15, Marfan's results from a mutation of the FBN1 gene encoding the glycoprotein fibrillin, a protein component of connective tissue. Roughly 1 in 10-20,000 North Americans have the syndrome, inherited in an autosomal dominant manner. Individuals with Marfan's syndrome have a significantly shortened life expectancy, often dying suddenly following rupture of major blood vessels or heart failure. Most exhibit characteristic physical features, including dolichostenomelia (long limbs), scoliosis (hypercurvature of the back in the anterior-posterior plane), and arachnodactyly (long, thin, spider-like fingers).
2. Tsipouras, P., Silverman, D.I. and J.Gray, Heritable Disorders of Connective Tissue and Pregnancy, In: Isada, N.B., Drugan, A., Johnson, M.P. and Evans, M.I. (Eds.), Maternal Genetic Disease, Appleton & Lange, Stamford, Ct., 1996.
3. Mishnah, Tractate Ohalot 7:6. On the halakhic view of abortion, see Aharon Lichtenstein, "Abortion: A Halakhic Perspective," Tradition XXV, 4 (Summer 1991), 3-12; Basil Herring, Jewish Ethics and Halakhah for Our Time, New York, 1984, pp. 25-45; J. David Bleich, "Abortion in Halakhic Literature," Tradition X, 2 (Winter 1968), 72-120; Contemporary Halakhic Problems, New York, 1977, pp. 325-371; David Feldman, Marital Relations, Birth Control and Abortion in Jewish Law , New York, 1968, 251-294. The addition of the words "life-threatening" is controversial, and was the subject of a passionate debate between two of the best known contemporary halakhic authorities, the late Moshe Feinstein and Eliezer Judah Waldenberg.
4. Leavitt, F.G., A brief introduction to Israeli bioethics with special application to the abortion question (1994) Journal of Health Care, Medicine and Community. 5:15-25.
5. Maimonides, Mishneh Torah, Laws of Murder and Preserving Life 1:9.
6. Ibid.
7. Eliezer IX, no.239.
8. e.g., Chapman, M.G., Assisted reproduction, In: Turnbull's Obstetrics, G. Chamberlain (Ed.), Churchill-Livingstone, London, 1994, pp. 283-298: Ectopic pregnancy rates following embryo transfer, etc. are 10% higher than normal; see also Ribic-Pucelj, M., Tomazevic, T., Vogler, A., and H. Meden-Vrtovec (1995) Risk factors for ectopic pregnancy after in vitro fertilization and embryo transfer, J. Assist. Reprod. Genet. 9:594-598; Rojansky, N. and J.G. Schenker (1996) Heterotopic pregnancy and assisted reproduction--an update, J. Assist. Reprod. Genet. 7:594-601. But newer procedures may reduce this risk, e.g., Porcu, E., Dal Prato, L., Seracchioli, R., Petracchi, S., Fabbri, R., and C. Flamigni (1997) Births after transcervical gamete intrafallopian transfer with a falloposcopic delivery system, Fertil. Steril. 6:1175-1177.
9. Ibid.
10. W.M. Barron, Hypertension, In: Barron, W.M., Lindheimer, M.D. and J.M. Davison (eds.) Medical Disorders During Pregnancy, Mosby, St. Louis, 1996, pp.1-12.
11. Bleich, Contemporary Halakhic Problems II, New York, 1977, pp. 119-123.
12. Bleich, "Compelling Tissue Donations" Tradition XXVII, 3 (Spring 1993) 59-89 (Contemporary Halakhic Problems IV, 273-315); Responsa Radbaz III, 627,
Eliezer Judah Waldenberg, Responsa Tzitz Eliezer IX, 45:13; X, 25:7;
13. Babylonian Talmud, Tractate Arakhin 7b.
14. Mishna Torah, Laws of sale 10:1, Shulhan Arukh, Hoshen Mishpat, 205:1.
15. Babylonian Talmud, Tractate Avodah Zarah 72a; Mishneh Torah, Hilkhot Mekhirah, 8:8.
16. Jakobovits, I., as quoted by D.M. Feldman in: The ethical implications of new reproductive techniques, In: Levi, M. (Ed.) Jewish Values in Bioethics, Human Science Press, Inc., New York, 1986, pp. 174-182. Jakobovits was responding in support of the report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd. 9314, 1984) also called the Warnock Report.
17. e.g., Laura M. Purdy, genetics and Reproductive Risk: Can having children be immoral? In: Mappes, T.A. and DeGrazia, D. (Eds.) Biomedical Ethics, McGraw Hill, New York, 1996, pp. 480-488.
18. Babylonian Talmud, Tractate Yevamot 64b; see also ibid: Evidence for a fatal hereditary disease - presumably hemophilia in the case discussed - in a family is sufficient to nullify biblical commandment to perform circumcision on asubsequent son.
19. Babylonian Talmud, Tractate Brachot 11a.
20. e.g., Steinberg, A. A collection of responsa by Shlomo Zalman Auerbach on Halakha touching on the patient, the physician and on medicine. In: Halperin, M. and Friener, Y. (Eds) Proceedings of the 2nd International Conference on Medicine. Ethics and Halakha, Schlessinger Institute, Jerusalem, 1996, p. 69; see also Abraham S. Abraham, Nishmat Avraham (Jerusalem, 1996), Even ha-Ezer, same volume, pg. 317; pg. 263 of the same volume for a recommendation by Eliahu Bakshi Doron, a former chief Rabbi of Israel on the proposed law to legalize surrogate arrangements.
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