In the recent AFA newsletter, the question was asked, “What’s God got to do with it?” For some, the answer is everything. For others of course, the answer is nothing. For many, the answer is somewhere in the vast in between. When dealing with any third party reproduction assistance in the context of assisted reproductive technology, the questions and answers surrounding religion can be a virtual minefield. For those whose religion is not of particular significance, they might be surprised at the considerations that come into play. As assisted reproductive technologies (ART) and third party reproduction have blossomed, so have the religious views. To date, most major religions have developed philosophies regarding ART and the use of a third party, drawing from their long-standing practices for guidance. When presented with infertility challenges, the emotional and other issues already often run high. For individuals whose religious beliefs and philosophies are also of importance, the challenges sometimes are insurmountable. The Bible teaches us to be fruitful and multiply. The question then is when God effectively interferes with the personal decision to procreate – to be fruitful and multiply – what does this mean for the individual?
In my practice, I have dealt with the questions raised by religious considerations many times over the years, particularly with respect to the Catholic and the Jewish religions. Oftentimes, the answers that my clients get do not always lead them down the path they so desire to go – to have a baby. Sometimes, in fact, the religious teachings and guidance lead them to a final decision that they in fact cannot procreate and still remain true to the teachings of the religion they so strongly believe in.
The Catholic Church is very clear not only regarding its staunch opposition to IVF as a whole, but also to the use of any third party assistance, specifically egg donation and gestational surrogacy. The Catholic Church has long rejected any manipulation of human embryos, including of course procedures that “assist” in the creation of a child, which, according to the Church, shall only occur “naturally.” In its 1987 instruction on respecting human life in its origin, the congregation for the Doctrine of Faith dealt with surrogacy in particular. The instruction rejected the practice, not only because it introduces a third person into the relationship of the “husband and wife,” but also because: “Surrogate motherhood represents an objective failure to meet the obligations of maternal love, of conjugal fidelity and of responsible motherhood.” The Instruction also argued that the use of a surrogate mother “offends the dignity and the right of the child to be brought into the world by its own parents.” This teaching was confirmed by the Catechism of the Catholic Church: “A child may not be considered a piece of property, an idea to which an alleged ‘right to a child’ would lead. In this area, only the child possesses genuine rights: the right ‘to be the fruit of the specific act of the conjugal love of his parents,’ and ‘the right to be respected as a person from the moment of his conception’” (No. 2378).
The painful result of the Catholic philosophy with respect to ART in general and third party reproduction in particular, and its clear opposition to any use of a third party, is that those individuals who would otherwise seek such assistance as the only way to be able to have the family they desire do not have this option, at least not without going against their faith and belief system. The choice has virtually been taken away from them if they are to follow the teachings of their faith. I have watched these individuals struggle with this decision – do they follow their dreams and their heart, or do they follow their religion and the guidance of their clergy? What do they lose out on when they choose one path over the other? For deeply religious individuals, this is a gut wrenching decision regardless of the path chosen. This is one of the most painful decisions frankly that I have witnessed individuals make along the road to trying to have a family, or not.
Overall, the Jewish religion supports IVF and ART in general, and third party reproduction in particular. However, according to various Jewish clergy and religious doctrines, the impact of using an egg donor or a gestational surrogate is not clear with respect to Jewish lineage. Consequently, the advice given the individual working with an egg donor and/or a gestational surrogate can be quite confusing, and differs between clergy. This is particularly confusing to the individual that may not be a religious person, but cares deeply about the religious impact. With respect to egg donation and surrogacy, Jewish clergy have been grappling with how to advise people to proceed. This is an issue because it will impact how to establish lineage according to the Jewish religion. Judaism holds that one is Jewish only if one’s mother is Jewish. If proceeding then with egg donation or surrogacy, the question will be if the religious status of the baby will be based on the “egg donor’s” heritage (regardless if a third party egg donor or the intended mother), the woman who gestates and delivers the baby’s heritage (the gestational surrogate or the intended mother), or both. The question of course then arises if using an egg donor, what if an egg donor is not Jewish but the recipient is? What if the egg donor is Jewish and/or the intended mother is Jewish, but the gestational surrogate is not Jewish? What if there is no intended mother? Certainly, if being Jewish is determined by the person who gives birth, then the child is Jewish if the recipient mother is Jewish and/or if the gestational surrogate is Jewish. In order to avoid much of the confusion around all of this, many Rabbis advise that a conversion of the baby be done in any case so that there is never any question as to their being Jewish. Of course, this presents some privacy issues when a family is not ready to be public about the use of an egg donor (this is a topic for another day). To further complicate things, some Rabbis feel that if a gestational surrogate is married, it will be considered adultery for a Jewish couple to proceed with a surrogacy with her. Is your head spinning yet? The bottom line is that if these questions are important to you as an individual, consult with your own Rabbi for specific guidance.
On a somewhat positive note that will assist in understanding Jewish lineage, a law was passed in the State of Israel allowing women to donate eggs to infertile couples. The law provides that the child born through IVF will be the legal child of the birth mother and not the egg donor. Just as we thought there might be some guidance provided by the Israeli egg donation law, however, there have been rulings by some Israeli Orthodox rabbis stating that whether or not a child is Jewish under the Jewish law of matrilineal descent relies on the egg donor’s descent and not on the birth mother’s, because language pertaining to procreation and descent in the Bible refers to the “seed” and not to delivery and birth.
With respect to surrogacy, pursuant to a recent case in Israel involving a surrogate an Israeli court set a legal precedent with its ruling that a woman whose baby was conceived using her own eggs in a surrogacy does not have to adopt her own child. The Tel Aviv Family Court's ruling states that DNA testing can be used to prove maternity. Previously, women had to officially adopt their children from a surrogate. That being the case, the argument certainly can be made that a child carried by a surrogate, whether Jewish or not, should be deemed Jewish if the intended mother is the egg provider and is Jewish (and a conversion then should not be necessary). This actually makes sense in light of the findings of the Orthodox Rabbis that matrilineal descent relies on the egg donor’s descent – at least this will help when the egg donor is Jewish. But back to the case where the egg donor is not, but the recipient intended mother who give birth is… according to the Israeli egg donation law, the child is Jewish; but, again, if a non-Jewish surrogate delivers the baby, the child is not Jewish without a conversion. Again, please always ask your own Rabbi for their guidance!
With advances in ART in general and third party reproduction in particular, we have seen different religions grapple with the impact on religious beliefs and philosophies with varying results. As advances continue, I am sure we will see further shifts in the guidance being given by clergy. The big question that will always remain, of course, is the extent to which an individual is guided by their religion in making procreation choices.