What Are The Jewish Surrogacy Choices & Ethics?
What about Jewish surrogacy? Important Jewish surrogacy information for you.
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Inside Israel Only - Halachic (Jewish law) influences Surrogacy Law inside Israel. If the intended parents are Jewish, the surrogate mother must also be Jewish and unmarried. This is because halacha considers the surrogate mother as the "mother," though genetically there is no relation. This way, if the surrogate is Jewish, the child is certainly Jewish. An important difference is that the surrogate mother's egg cannot be used. She may carry an embryo of the intended father's sperm and the intended mother's egg, or a donor egg (though not sperm donor). Israel also does not allow relatives to act as surrogates, so the surrogate will always be a paid third party (currently around $25,000).
This may sound like a godsend for Jewish couples from the US, seeking a Jewish surrogate mother. However, Israel does not allow foreign residents to enter into surrogacy agreements in Israel. Section 2 of the surrogacy law has strict conditions that must be met in order to implant embryos in an Israeli surrogate mother:
The intended parents must be Israeli residents; this has prompted some couples to make aliyah.
Intended parents must be a married couple (man and woman).
Surrogate must be unmarried and Jewish (if the couple is Jewish).
The sperm must be from the intended father.
The egg must be from the intended mother or a donor; but may NOT be from the surrogate.
A written surrogacy agreement, negotiated by both parties represented by attorneys must meet committee and legal guidelines, is approved by the committee.
Then there are requirements as to the surrogate's mother's health. A surrogate candidate must be between the ages of 22 and 38, have at least one child, and be at least one year post delivery. She cannot have had more than two surrogacy agreements, even if a child wasn't born.
The candidate cannot be a surrogate if she is going through a divorce or has had loss or illness of a loved one. Also, there is a list of fifteen conditions that would prevent a woman from acting as a surrogate, such as having undergone an ectopic pregnancy, or suffered other problomatic pregnancy related problems.
Jewish Surrogacy Information
The following article is from newsletter by: Jewish Choices Jewish Voices
Jewish Fertility Ethics by admin on July 15th, 2010 by Elly Teman
Full URL is: http://jewishchoices.org/jewish-fertility-ethics
Shmuel and Chava, a religious Jewish couple from France, are not able to have a child naturally. Chava was born with a condition called Mayer-Rokitansky-Kuster-Hauser (MRKH) syndrome; she has no uterus but does have ovaries that produce eggs. Chava’s doctor has advised her that gestational surrogacy would enable her and her husband to have a baby that is genetically related to them. This is a process in which an egg, removed from Chava’s body, would be fertilized with Shmuel’s sperm in a lab through in-vitro-fertilization (IVF). The resultant embryo would then be implanted in the womb of a gestational surrogate who would carry the baby to term and then relinquish it into Shmuel and Chava’s custody.
As orthodox Jews, Shmuel and Chava spoke right away with their rabbi in order to find out if this practice is “kosher.” Their rabbi advised that gestational surrogacy could be an option for them as long as two conditions were met. First, the woman carrying the baby should be Jewish, because Judaism has historically been conferred through the womb (at least until recently, when rabbinical authorities in Israel announced that Judaism is also conferred through the egg). Second, the surrogate should not be married, because if a married woman were to become pregnant with the child of a married man who is not her husband, the child would be a “mamzer.”
Since surrogacy is prohibited in France and in many other European countries, Shmuel and Chava assessed their options. They read about the booming surrogacy industry in India, where the costs of surrogacy are far less expensive than elsewhere, but they realized right away that there would be zero chance of finding a Jewish surrogate there. Then they did some research on surrogacy in the United States, where the cost is far higher. Even if they could gather up all of the money for the IVF, they learned that it was extremely rare to find a Jewish surrogate in the United States. Where could they find a Jewish surrogate and be able to afford the process? Deeply committed to becoming parents through surrogacy, Shmuel and Chava decided to move to Israel.
While many reproductive technologies and gestational surrogacy in particular are restricted or prohibitively expensive in many countries, Israel has made these technologies widely accessible to its citizens. Israel’s National Insurance Law ensures that all types of reproductive technologies are fully paid for as part of the standard health insurance package. This includes unlimited rounds of IVF for up to two live births. The result of this policy is that Israel now reportedly has the highest number of fertility clinics per capita of any other country in the world. For Shmuel and Chava, this means that as soon as they become Israeli citizens, Chava will be entitled to have all of the fertility treatments necessary for the surrogacy process paid for.
Since 1996, Israel has also legalized gestational surrogacy arrangements between Israeli citizens and permanent residents. Thus, unlike the international surrogacy arrangements one might find in India and in the United States, Israel does not permit foreigners to contract an Israeli surrogate, or for Israelis to contract foreign surrogates within the country. To do surrogacy in Israel, Shmuel and Chava will have to make aliya and meet the very strict criteria outlined in the Israeli surrogacy law. For more than a decade, a committee appointed by the Israeli government has overseen each and every surrogacy contract arrangement carried out in Israel. This public committee makes sure that all contracts signed between surrogates and couples meet the law’s criteria.
Some of these criteria include the requirement that all surrogates and couples are citizens of Israel and share the same religion (only Jewish surrogates can carry the babies of Jewish couples). Surrogates have to be single, divorced or widowed (to avoid the Halakhic problems that Shmuel and Chava’s rabbi mentioned), and only legally paired man/woman couples can hire a surrogate (leaving out single individuals and gay couples from hiring a surrogate). Surrogates and couples cannot be related to one another (a sister or cousin cannot volunteer to be their relative’s surrogate), and the surrogate cannot provide her own eggs (she cannot be the genetic and gestational mother of the baby). The intended father must be genetically related to the baby (no sperm donors allowed). And surrogacy is reserved only as a last resort for couples with no children (or one previous child) who have exhausted all other options for genetic parenthood. Shmuel and Chava are perfect candidates in this respect because they have documented medical proof that Chava cannot carry a baby in her body.
On the one hand, Israel’s surrogacy law should be noted for its success in regulating gestational surrogacy arrangements. At a time when lack of surrogacy regulation in many places has resulted in complicated legal entanglements, the Israeli surrogacy law has ensured that all surrogacy arrangements are grounded in formal contracts, valid in court, and protect the surrogate and the couple in many ways. The law requires intense psychological screening of surrogates and intended parents, as well as physical screening of the surrogates, preventing many of the complications that might occur in private, unregulated surrogacy arrangements.
On the other hand, the Israeli surrogacy law has room for improvement. It is ironic that only single women can become surrogates for married couples, but that the law prevents single women from contracting a surrogate. It is troubling that married, heterosexual couples like Shmuel and Chava are making aliya in order to contract for surrogacy in Israel, but homosexual couples are not eligible for Israel’s surrogacy program. Finally, while women like Chava can easily prove to the surrogacy committee that they have no other option for genetic parenthood, those women who have unexplained infertility must prove they have tried all other available technologies before turning to surrogacy. In a country where women can do unlimited IVF attempts, this means at least eight IVF attempts or a similar number of miscarriages in order to be candidates for contracting a surrogate. As anyone who has known someone who has gone through even one round of IVF can vouch for, this is not an easy process emotionally or physically.
For more on Jewish fertility issues:
Halachic Issues in Infertility Treatment (Nishmat: The Jerusalem Center for Advanced Jewish Study for Women) A T.I.M.E. (A Torah Infertility Medium of Exchange) PUAH Institute RESOLVE: The National Infertility Association MRKH Syndrome
Elly Teman is a cultural and medical anthropologist at the Penn Center for Integration of Genetic Healthcare Technologies at the University of Pennsylvania. She is the author of a recent book about the personal experiences of surrogates and intended mothers involved in Israeli surrogacy arrangements, Birthing a Mother: the Surrogate Body and the Pregnant Self, which was published by the University of California Press in March 2010. The book has recently been featured in the Philadelphia Jewish Exponent, the Jewish Review and the Jerusalem Post.
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Jewish Fertility Ethics
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