Surrogacy and the Halachic Definition of Maternity

As a follow-up to the previous post re: religion and medicine, I decided to offer a short summary of just one of the numerous brilliantly crafted arguments and creative proof-texts that are quoted relating to the definition of maternity (birth mother vs. genetic mother). The well-known story of Yosef and Dina's in-utero transfer is widely suggested as a definative source establishing the birth-mother as the halachic mother. However, as illustrated below this is far from the case.

Targum Yonatan comments that Leah’s prayers to Hashem that Rachel bear a male child where answered. Miraculously, the male and female fetuses in Leah and Rachel’s wombs respectively switched locations. Yosef, whose conception occurred within Leah, was born to Rachel; and Dina, who was conceived from Rachel, was born to Leah. This episode also appears in the commentary of Da’at Zekanim and in the litergical poems of Rosh Hashanah. In addition, it is also reported by the Maharsha (Masechet Niddah 31a) in the name of Sefer Panach Raza.

The miraculous fetal exchange of Yosef and Dina would appear to be a direct parallel to our modern dilemma of maternal identity in surrogacy. Since the Torah refers to Dina as the daughter of Leah, it could be argued that this proves that birth, and birth alone, determines maternity. Indeed, the Torah is replete with references to Yosef as Rachel’s son and never as a child to Leah. This proof is further significant in that it establishes the birth mother as the halachic mother even when conception and partial gestation occurred in another host.

However, not all commentators understood the implications of this episode uniformly. The Tur, in his commentary to the Torah (Breishit 46:10), asks how Shimon was permitted to marry Dina, since even Noahide law prohibits marriage to a sister of the same mother. (Shaul ben ha'kenaanit is listed among Shimon’s children who decended to Egypt with Yaakov. The midrash identifies the Canaanite as a euphamism for Dina who was violated by Sh’chem.) He answers that since Dina was conceived in Rachel’s womb, she was in actuality Rachel’s daughter. Therefore, Shimon and Dina were only paternal siblings and did not share a common mother. According to the Tur, birth is not the determinant of maternity. Rather some earlier event, shared by Dina and Rachel, creates that maternal bond.

Rabbi Moshe Sternbach (Teshuvot Ve'hanhagot) rejects adducing any proof from the story of Yosef and Dina on the grounds that "Ein Lemaidim Mima'ase nisim". He suggests the possibility that Dina not only physically transferred to Leah’s womb, but miraculously acquired her genotype as well. Therefore, Leah is both the genetic and birth mother of Dina and no comparison to surrogacy can be made.

An additional approach to understanding this episode is based on the plain meaning of the Gemara Berachot 60a. The gemara discusses whether it is appropriate to beseach G-d for a male or female child once his wife is already pregnant. Alternatively, such a request constitues a prayer in vain--tefilat shav, since what is done is already done. In support of such requests, the gemara states that after Leah’s prayers on behalf of Rachel the male fetus within her womb transformed into a female, while the female fetus in Rachel became a male. Apparently, this refers to a metamophasis, rather than an actual fetal exchange. (This source corroborates the Kabbalistic notion that Yosef’s vanity stems from his initial conception as a female.) Taking this approach neutralizes any inference from the circustances surrounding Yosef and Dina’s births regarding the determinant of maternal identity.

Avi Oppenheimer