Surrogacy spurs religious debate

Surrogacy is becoming increasingly commonplace, offering couples with fertility challenges a miraculous way to welcome much-longed-for children. Yet when it comes to Jewish law, establishing maternity – and the child’s religion – isn’t always so clearcut.

“We’re not giving up; we’ll just find another way,” clinical psychologist Dorianne Weil (Dr D) told a doctor when he informed her and her now-late husband that they had to come to terms with not being able to have a baby. It was this tenacity and unwavering belief that culminated in the birth of their twins, Jemma-Claire and Dean, 25 years ago.

Though the doctor in question cited a multitude of statistics, the Weils’ story was about far more than numbers. Yet it did begin with them. After 18 in vitro fertilization (IVF) treatments and seven lost pregnancies, Dorianne invited a visiting fertility specialist from the United States (US) onto her 702 radio show.

He was amazed at how she related to listeners who called in to share their fertility struggles. “I knew about the waiting, the stress, the dreams, and the challenges it can bring to the couple or how it can bring you together.”

After the show, she told the specialist her story, and he insisted that she come to San Francisco. So, the Weils travelled to the US and tried multiple IVF treatments. Though each attempt was unsuccessful, they managed to freeze 11 embryos in the process. In the knowledge that carrying a baby wasn’t possible, they discovered a California-based parenting centre that offered strictly regulated surrogacy.

Here they found their surrogate – a woman who had five kids of her own and couldn’t imagine what it must be like not to be able to have children. “She saw surrogacy as the ultimate gift,” says Dorianne. Implanted with five of the Weils’ embryos, the surrogate fell pregnant with twins.

The Weils temporarily moved to San Francisco in preparation for the birth, which they almost missed because it came unexpectedly early. Yet they made it just as the caesarean was taking place.

“They brought out a boy and a girl,” Weil says, recalling the emotion of meeting her babies. “They were newly born, still covered by vernix. I had a pinback button in my bag that said, ‘Today I’m a dad.’ I pinned that on my husband, and he cried and said two things, ‘Today we’re a family,’ and, ‘I never thought we’d see the day.’ And I said, ‘I always knew we would.’”

In Judaism, surrogacy has given rise to much debate. “This isn’t just a personal question that the couple have, there’s something much bigger at stake here,” said Rabbi Gidon Fox. The founder and rabbinic administrator at SHIFRA, which offers halachic fertility treatment counselling and supervision, Fox discussed the halacha surrounding fertility and surrogacy at a recent Hatzolah webinar.

“Whatever will be ruled for this couple has implications for others,” he said. “This relates to the integrity of the Jewish world.” That’s because this arrangement raises questions about whether the surrogate mother, who carries and gives birth to the child, or the biological mother, who provides the egg, determines the religion of the child.

Historically, there was no issue when it came to determining the mother of a child. Yet with the evolution of medical science, there’s now much debate amongst halachic authorities. Fox explains this using the example of a mother who carries a donor egg.

“To those halachic authorities that hold that the critical determination of Jewish identity is the birth mother, this child is Jewish. To those who hold that the genetic-material donor is the mother, this child isn’t Jewish. Yet, what will happen later when this child wants to get married? One of these groups would allow it and the other wouldn’t.”

“Though each side of the argument holds their perspective to be correct, a third point of view is that this matter cannot be definitively adjudicated,” said Fox. “To avoid issues down the line, conversion is done if either party isn’t Jewish.”

In the case of the Weils, their twins were therefore converted because their surrogate mother wasn’t Jewish even though they, the biological parents, were. Though the conversion was a lengthy process demanding that they themselves learn with a rabbi for a number of years, the Weils wanted to comply perfectly. “We didn’t want any problems with Barmitzvahs, weddings, or anything at all,” says Dorianne.

When both the donor and the surrogate are Jewish, there’s no question surrounding the child’s Jewishness. Yet, another concern then arises – the potential of a brother unknowingly marrying a sister. “Generally, those who require a Jewish donor or surrogate want her to be unmarried, yet she may already have her own children,” said Fox, “who would be this child’s sibling.”

That’s why it’s so important for rabbinic authorities to be involved in the surrogacy process to keep good records and circumvent future dilemmas. Fox argues that halachic involvement in surrogacy is critical, regardless of whether or not authorities are comfortable with the process.

“Just washing our hands of it won’t prevent it from happening. It’s an unbelievable test for someone not to be able to have children, and people will understandably go to whatever lengths necessary to become parents. It’s critical for us to oversee the process as the custodians are the ones to protect the integrity of the Jewish community and of this child.”

When Tracy and Dale Balkin decided to expand their family via surrogacy, they consulted medical and legal professionals, women who had been through the surrogacy experience, and rabbis. “The Jewish aspect was challenging,” admits Tracy. “Yet, we were blessed to find a Jewish surrogate which negated one difficult aspect of having to convert the babies. The eggs were my own and genetically, our twin girls [now seven] are 100% mine and my husband’s.”

Having experienced a high-risk pregnancy with her first child, a son who was born prematurely, Tracy subsequently suffered numerous miscarriages, the final one being life threatening. “We were told that I would never be able to conceive or carry another child,” she said. Surrogacy and adoption were their only options. Being open-minded when exploring these avenues and having a strong family support system was vital, she said.

Tracy stresses the importance of being open about fertility struggles. “Once you talk, you find answers, guidance, and support. It’s nothing to be ashamed of. Childbirth is a miracle, and having a beautiful healthy baby is what matters most. Deciding to go ahead doesn’t mean you’ll automatically find a willing and able woman to carry your child though.”

The Balkins believe that speaking about their journey led them to their surrogate and had a ripple effect. “My husband told someone what we were going through – we had initially found a surrogate who changed her mind – and just that one conversation was the catalyst we needed,” said Tracy. “We met our surrogate the next day. Shortly after our girls were born, the person to whom my husband spoke, who introduced us to our surrogate, had twin girls.”

Tracy and Dorianne believe it’s important to be open with their kids. Their children have always known and embraced their miraculous birth stories. “For our twins, it’s their ‘normal’,” says Tracy. “They’ve met the surrogate, and to them, she’s an amazing woman who gave them life. But I’m their mom, and they’ve never questioned that. Emotionally, it was challenging, but in the grand scheme of things, it’s nine months versus a lifetime with your precious child.”

Picture: Dale and Tracy Balkin with their children Alexa, Jamie and Kira