Tradition: A Journal of Orthodox Jewish Thought

Despite the passage of time since the New Jersey case of Baby M' captured the attention of millions of Americans, both the human and legal questions posed by surrogate motherhood remain largely unresolved. Medically, the procedure is not at all complex and represents a simple method of coping with female infertility. A woman who is willing to serve as a surrogate, usually in return for a fee, is found and an agreement is reached. She is artificially inseminated with the semen of the infertile woman's husband, carries the baby to term and subsequently surrenders the baby to the couple. In such cases, the husband is the biological father but the wife has no natural relationship with the child. With the development of in vitro fertilization, it is now possible, in some limited circumstances, for the wife to be the biological mother as wel1. 2 If the wife's fertility problem is not related to production of ova, her own ovum can be fertilized in a petri dish with her husband's sperm and then transferred to the womb of the surrogate who serves as host for purposes of gestation. When all parties are content with the terms of the agreement, there is no occasion for public attention to be focused on the arrangement. But, at times, as was the case with regard to Baby M, the surrogate undergoes a change of heart and refuses to deliver the baby to the father and his wife or attempts to recover custody of the child after the child has been surrendered. In either event, the emotional turmoil is readily understandable and the legal dilemma is obvious. The problems of surrogate motherhood, as issues of Halakhah, must be placed in proper perspective. Perhaps, this can best be done by means of an anecdote. Many years ago, I was approached by the rabbi of a hasidic congregation. The problem concerned a couple in his community. Unfortunately, the man and his wife were unable to have children. The rabbi arranged for the gentleman to meet with me. In the course of our conversation, the gentleman requested my assistance in obtaining a child for adoption. Time went by and several months later this person sought me out again. This time he thanked me for my efforts and proceeded to inform me that he and his wife were no longer 146 TRADITION 32:2 / C) 1998Rabbinical Council of America J. David Bleich