In the first of this two-part series on surrogacy in halacha, we explore one of the most fascinating questions created by modern reproductive technology: Who is the halachic mother — the woman who provides the egg, or the woman who carries the pregnancy and gives birth?
What happens when the egg donor is Jewish but the surrogate is not — or the reverse? Is the child Jewish? And more fundamentally, what actually creates motherhood according to halacha?
In Part One, we begin building the case for the birth mother, examining the Even Yekarah’s remarkable case of transplanted reproductive organs; Targum Yonasan on Bereishis 30:21, which describes Yosef and Dinah being transferred between the wombs of Leah and Rachel; the Gemara in Bechoros 21b describing the fetus before forty days as “מיא בעלמא”; and the fascinating distinction between fatherhood and motherhood found in Megillah 13a regarding Esther.
Most importantly, we return to our sugya in Yevamos 97b and the case of twins whose “הורתן שלא בקדושה ולידתן בקדושה” — conception occurred before their mother’s conversion, but birth occurred afterward. Could this Gemara demonstrate that maternal identity is established through birth rather than conception?
The sources seem to be building a powerful case for the woman who gives birth.
But that is only one side of the story.
In Part Two, we’ll encounter the sources that challenge this conclusion — and potentially point us toward an entirely different definition of motherhood.
