Jewish Identity in a Technological Age
By Rebecca Linfield
There is no more tangled web than the intersection of Halakhah and technology. This article will treat one specific such case, and will aim to provide a framework for how to approach some contemporary issues within traditional legal strictures.
At the most recent conference of the Puah Institute in Jerusalem, which helps Jewish couples with fertility issues, the subject of discussion was a growing trend in recent teshuvot (halakhic rulings) from Israel regarding egg donation. Several prominent Rabbis have begun to suggest that the Judaism or non-Judaism of an egg donor can determine the religion of the baby. These rulings contradict a previously accepted principle that the religion of the gestational mother determines the religion of the child. The authors of the most recent teshuvot seem to assert that Judaism is purely genetic.
Both sides of the controversy are applying ancient sources to modern technological advances, which is a tricky endeavor at best, a maze of contradiction and obscurity at worst. All parties in this conversation agree that it is the mother who determines whether the child is Jewish (a position opposed by Reform Judaism). In this instance, however, the halakhic literature do not definitively support either side, because there appear to be no clear precedents as to who determines “Jewishness” when there are up to which three “mothers” involved with a child: the “genetic” mother who donates her egg, the “gestational” mother who carries the child, and the “social” mother who raises the child. In practical terms, this means that the two camps disagree in all cases where the gestational mother is Jewish and the genetic mother is not, or vice versa.
To be sure, there is legal precedent for gestation determining a child’s status. As noted in the Bible, the firstborn who “opens the womb” of the mother must be redeemed by the priest (Ex. 13:2, 12, 15; 34:19; Nu. 3:12; 18:15). But in the Bible, the genetic and gestational mothers are assumed to be one and the same, and even if gestation does determine which child is a firstborn, it may not necessarily determine whether the child is Jewish.
Perhaps it would be okay if these two conflicting opinions were left as two equally valid, conflicting interpretations. After all, “these and these are the words of a living God” (Talmud Tractate Brachot 9a). But historically, the issue who or what determines Jewish identity has left Jews at crossroads, unable to compromise. Within American Jewry today, the Reform Movement accepts children as Jewish when either parent is Jewish, both Conservative Judaism and Orthodoxy only accept children of matrilineal descent, and the Orthodox do not accept Conservative conversions. These different opinions about the intersection of Jewish law and identity affect the fabric of people’s lives — to give but one example, the only Jewish day school in one small Midwestern town declined to admit children born of non-Orthodox converted mothers, tearing apart the community.
The matter is especially acute for Israeli couples who turn to egg donation in order to conceive. Israel has the highest number of fertility clinics per capita in the world, but the number of “Jewish” eggs available for donation is limited, as the Israeli government currently only allows egg donation by women who have undergone fertility treatments and have leftover eggs, with no monetary compensation. Thus, many Israeli couples buy eggs from Gentile donors from abroad to use in in vitro fertilization (IVF) treatments (consisting of fertilizing the egg in a petri dish and then implanting it into the mother). Under the new ruling, children born from those eggs would need to convert.
Photograph by Wikimedia Commons
But converting those children is no simple matter. The Orthodox state rabbinate currently determines who may convert – in decreasing numbers every year – and only grants marriage licenses to those whom it considers Jewish. The Rabbinate does not recognize Reform or Conservative conversions performed abroad, and it has invalidated even certain Orthodox conversions. Earlier this year, a proposed bill, heavily influenced by the ultra-Orthodox Shas party, intended to limit the Law of Return (in which Jews immigrating to Israel automatically qualify for citizenship) to native-born Jews. In such a fraught situation, the introduction of a whole new population of native Israelis who would nevertheless require state-endorsed conversions would be potentially explosive.
In order to mitigate this possibility, a new law is expected to pass in the Knesset, easing restrictions on those who can donate eggs. The other part of the bill, which would forbid Israeli couples from using eggs from a donor of a different religion, is presumably meant to sidestep the situation of determining Jewish identity based on genetics.
This solution may not be optimal from a genetics perspective, however. First, it is usually more beneficial to use “Gentile” genetic material, which decreases the risk of the child inheriting a recessive disease. Specifically for couples who both have Ashkenazi (Eastern European) ancestry, there is a high risk of their children inheriting Tay-Sachs, Goucher, and other diseases caused by recessive mutations. Moreover, using “Gentile” genetic material decreases the risk (at least in Israel, where intermarriage rates are low) that half-siblings might unknowingly marry. Countering these arguments is the greater ease with which parents accept and nurture children who look like them, so that parents might want to use “Jewish” genetic material so that the child looks like the parent. Both sides – risk of recessive mutations and incest versus biological resemblance – have credence.
More fundamentally though, the specter of eugenics hovers over the decision to define “Jewishness” based on the genetic mother instead of the gestational mother. Judaism is not genetic – people can convert into the religion. Favoring genetics over gestation ignores the fundamental contribution that a gestational and/or social mother gives to her child in forming Jewish identity. Granted, Judaism is sometimes considered under a genetic light. Someone born to a Jewish mother (or to a Jewish father according to the Reform Movement) yet who does not at all identify culturally with being Jewish is still halakhicly Jewish. Yet in the ideal case, and for most cases, the raising of the child in a Jewish environment is what really gives a child a “Jewish identity.”
One solution would be to require both Jewish genetic and gestational mothers for a baby to be Jewish. This would mean that a child with one Gentile “mother,” either genetic or gestational, would be considered Gentile and require conversion should the ultimate parents decide that they want their child to be Jewish.
From a halakhic standpoint, this view is not out of the question. In his book Emek Halakha, Professor Ze’ev Low draws a parallel to the Omer sacrifice, which during the time of the Temple rendered grain already harvested permissible to eat. The Omer sacrifice also enabled people to eat grain that was harvested afterwards – provided that the grain had been growing in the field at the time that the Omer was brought. So even though the grain was, timewise, “post-Omer,” because it was growing when the Omer was brought, it retained enough “pre-Omer” characteristics to be considered permitted. Similarly, Professor Low argues, just as immature grain is both “pre” Omer and “post” Omer, a child is the product of both the genetic and gestational mother, so both determine Jewish identity.
There are, however, some concerns with this solution. It is not at all clear that Professor Low’s argument is a valid halakhic move, given that the status of grain and children have little to do with one another. It could also be argued that because immature grain at the time of the Omer is ultimately considered “pre-Omer,” a genetic mother – the first “mother” – should be the sole determinant of Jewish identity. If the argument fails on a theoretical level, it will most certainly fail on a practical level. And for lack on an argument acceptable in the halakhic mainstream, both camps will rely upon their sources and continue to disagree.
More than that, Professor Low’s argument perpetuates a weakness of the genetic mother” and “gestational mother” camps: namely, ignoring the role of the social mother to the child. If both the genetic and gestational mother contribute something essential to the identity of the subsequent child, then surely the social mother deserves her own imprint, too.
Perhaps, then, for a child to be Jewish all three “mothers” should be Jewish, and in all other cases allow the child to choose his religion upon reaching the age of majority. This solution draws upon the precedent of Tinok shenishbah, a child technically Jewish but raised in a Gentile household. As discussed in the Talmud (Tractate Mo’ed, 68b), such a child is not held responsible for misdeeds committed while under the impression that he is of a different religion, and is essentially considered Gentile up until the time that he recognizes his Judaism. Conversely, if a Gentile child is raised in a Jewish household, that child can choose whether to convert or not upon reaching the age of majority. Leaving aside conversion obstacles discussed above, this solution would acknowledge the role that all three mothers have on the child – and allow a child who has reached the age of majority to acknowledge all influences. But again, requiring unnecessary conversion would be a sore burden to place upon parents already overwhelmed by the need to turn to assisted reproductive technologies in the first place. May we be privileged as a community to discover together “divrei Elokim hayyim – the words of a living God.”