«BE FRUITFUL AND MULTIPLY». THE ISRAEL SURROGATE MOTHERHOOD AGREEMENTS LAW: A CONSERVATIVE APPLICATION OF HALAKHAH OR REFORMATION OF JEWISH LAW?

Recent scientific progress in reproductive biotechnologies implies significant transformations in terms of the value and culture of the concept of maternity, which is no longer attributable to the legal definition of “mother” offered by Jewish Law (the woman that gave birth to the child). Assisted reproductive technologies have increasingly separated the reproductive aspect and sexual union of the couple, finally leading to the metamorphosis of the relational dynamics underlying the “family identity” and the birth of new types of biolegal contracts. This ever-changing situation has posed a new and unavoidable challenge to Halakhah. The study sets out to investigate the approach that Jewish bioethics reserves specifically for the controversial phenomenon of surrogate motherhood, according to the commandment “be fruitful and multiply” (Genesis 1.28; 9.1–7; 35.11). Compliance to the first normative statement of the Torah implies that the option of childlessness and its acceptance does not exist in the Jewish perspective. Halakhah recognizes genetic parenthood only: the inestimable value of biological parenthood gives life to a halakhic debate in which there is divided opinion about how the precept of biological parenting must be observed, to what extent it can be fulfilled and at what cost it can be obtained. Among numerous bioethical issues, surrogacy in particular emphasizes the interesting variety of opinions of the rabbinical authorities, which express both the Orthodox positions and the more progressive ones. This shows how Jewish speculation around the essence of biological parenthood has led to a respectful comparison of knowledge and judgements of the minority opinions that enter, with equal dignity, into the legal debate and are enhanced by the absence of a superior interpretation. The paper aims to demonstrate how the Halakhach of bioethics, in case of necessity (in terms of observance of the precept), allows - and sometimes imposes - the stretching of the limits of the formal law, often based on an analogical extension of the Talmudic and Biblical sources, to meet fundamental social needs and alleviate human suffering. Since Judaism prizes offspring so much, many rabbis, with a lenient interpretation and specification of Jewish religious law, have permitted recourse to different artificial methods of reproduction. In this context, it is not surprising that a unique legislative initiative came about and, in 1996, Israel became a pioneer in regulating and facilitating commercial surrogacy agreements. The enactment of the Israeli Surrogate Motherhood Agreements Law was preceded by the appointment of a professional public commission (the “Aloni Commission”) whose task was to examine the social, ethical, halakhic and legal aspects of the treatment method related to in vitro fertilization, including surrogacy agreements. The paper will try to prove that the Israeli Surrogate Motherhood Agreements Law contains many provisions that have marked halakhic significance [e.g. the prohibition of “wasting the seed”, the Jewishness of the child-to-be, the perpetuation of the father’s lineage or the mamzerut (bastardy) of the offspring]. On the other hand, the contemporary setting of Jewish bioethical speculation and the promulgation of liberal bio-law imply the reformation of Jewish Law (which in the case of the Israel Surrogacy Agreement Law, for example, must tolerate the surrogate being a single mother; that surrogacy, in many cases, induces divorce and that the child-to-be will go to parents who are exempt from the religious duty of procreation…)