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The Surrogate Challenge

I am fortunate to be a member
of a beis din that is involved in
conversion. This has given me
the opportunity to enable sincere,
committed individuals from all
Rabbi Eli Belizon
Faculty, Stone Beit Midrash Program
Rabbi, Young Israel of Fair Lawn
walks of life join kneses Yisrael and
become a part of our great nation. I
take this job very seriously and view these technologies require conversion. .
it as a great privilege. Nevertheless, While in the past, in vitro fertilization After, she bore a daughter and she called
I frequently encounter challenges in and surrogate motherhood were her name Dina.
this role. One such area of challenge merely theoretical issues in the world Bereishis 30:21
is the groundbreaking and innovative of halacha and Gemara, they now
The Baal Haturim notes that regarding
technology now available through are frequent issues facing todays
Dina, the Torah never refers to
modern medicine in the treatment batei dinim. When analyzing and
herayon (pregnancy) as it does by the
of infertility; technology that enables understanding these issues, we will
other children. He explains, based
couples to bear children and enjoy the see that the discussions surrounding
on a comment of Targum Yonasan,
blessing of building a beautiful family. surrogacy and egg donation are
that Leah did not in fact conceive
These innovations, however, present relevant to understanding how we
Dina, but rather Dina was conceived
halachic questions that often extend to became a Jewish nation at Har Sinai.
in Rachels womb. At the same time,
a beis din that is involved in conversion.
The question that must be addressed is: Yosef was conceived in Leahs womb.
One issue that can cause infertility which part of development is critical to If Leah would have given birth to
is a womans inability to produce producing a Jewish baby? Does halacha another boy, Rachel would have only
fertile eggs. The medical world has require a Jewish mother to deliver had the opportunity to bear one of
discovered methods to extract an egg the baby, or is it more critical that the the shevatim (tribes), fewer than the
from a donor and implant it, providing genetic material come from a Jewish maidservants. Leah had mercy on her
an otherwise infertile woman the mother, regardless of who carried the sister and davened for a miracle. The
ability to have a child. Additionally, child to term? Chazal tell us that a child Targum Yonasan states that Hashem
some women can produce a fertile egg born to a Jewish mother is Jewish, but performed a miracle and transferred
but for various reasons are unable to they do not specify what part of the Yosef to Rachels womb and Dina to
complete a full pregnancy. Medical process imparts the Jewish status onto Leahs womb.
technology now provides the ability the child.
The Tur takes this idea one step further.
to implant a fertilized egg in another
Although the concepts of egg The Torah (Bereishis 46:10) refers to
woman, a surrogate, who can carry
donation or surrogacy do not appear one of the children of Shimon as Shaul
the fetus to term. In many of these
in the Talmud, some commentators ben Hakenaanis. Rashi comments
situations, the egg donor or surrogate
on the Torah allude to a similar that this was a child born to Shimon
may be a non-Jew. Our beis din very
concept with the birth of Dina and Dina. After Dina was captured
often is required to determine whether
and Yosef. The verse uses peculiar by Shechem and was embarrassed
or not children born as a result of
language to describe the birth of Dina: publicly, Shimon resolved to marry

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Rabbi Isaac Elchanan Theological Seminary The Benjamin and Rose Berger CJF Torah To-Go Series Shavuot 5777
her. This marriage is problematic, him as well? He is still uncircumcised that ger shenisgayer kkatan shenolad
as it involves siblings that share a at the time of the conversion. The a convert is like a newborn child who
common mother, which is prohibited Baalei Hatosfos (see Tosfos, Yevamos has no halachic relatives?
under Noachide law as well as Jewish 47b, s.v. and Matbilin and Kesuvos 11a,
Moreover, there seems to be a
halacha. How could Shimon marry s.v. Matbilin) offer an answer, which
contradiction between the two
his sister? The Tur resolves this issue may serve to clarify our issue as well.
passages in the Gemara. According
by citing the above commentary, and The Baalei Hatosfos believe that when
to the first passage, the defining step
argues that since Dina and Shimon this child is born, the circumcision is
in the determination of a child being
were conceived by different mothers not a circumcision of conversion. At
Jewish would seem to be conception.
they are not considered siblings for the time of the mothers conversion
If the child was not Jewish at the time
the purpose of halacha (Noachide law the fetus undergoes conversion as
of conception, he or she requires a
only prohibits marrying a sibling from well, regardless of the childs gender.
conversion, regardless of the fact that
the same mother). The implication of Once the child is born and turns out
he or she was born to a Jewish mother.
these sources is that the Torah seems to be a male, we circumcise him on the However, the second passage seems
to consider the woman who conceives eighth day as we would any other baby to imply the opposite, and despite
the child to be the mother. This could that was born Jewish. The Ramban, the fact that these two brothers were
be extrapolated to our modern-day Yevamos 47b, however, offers a different conceived while their mother was
dilemma, and one may conclude that solution and explains that in general, not Jewish, they remain brothers
as long as the egg is from a Jewish this formal order of circumcision once they are born, contrary to what
mother, that child would not require prior to immersion in the mikveh is would normally occur in the process
conversion. The Minchas Yitzchak not essential and although ordinarily of conversion.1 This would imply that
3:114, points out that these sources recommended, the conversion is the gestation and delivery are more
are difficult to rely on for a few reasons. valid if the order was reversed. The critical for creating a Jewish child.
First, these sources are not traditionally conversion of the baby whose mother
meant to teach halacha, they are more converted while pregnant is complete There are numerous ways to resolve
aggadic texts. Additionally, the Gemara when the circumcision takes place. this contradiction and because
in Brachos 60a, has a different account Thus there seems to be a fundamental there is no clear resolution as to
of the story involving Leah. In the dispute regarding how we view the whether conception or gestation
version in the Gemara, Leah had pity conversion process of this fetus. is the ultimate determinant, many
on her sister and prayed for her to poskim suggest that the beis din
There is a major challenge to Rambans should be stringent and require
conceive and deliver a boy. There is no
opinion. The Gemara in Yevamos, conversion if either the egg donor or
mention of a fetus transfer or exchange.
97b, discusses a similar case where a the surrogate are not Jewish. One of
The most compelling and direct source mother is pregnant with twins and these resolutions provides for us an
that helps to clarify our issue is one converts mid-pregnancy. The Gemara important insight into what makes
highlighted by Rav Zalman Nechemia states that these twins are considered us Jewish. Rav Naftalli Trop, in his
Goldberg (Techumin Vol. V), one of to be full-fledged brothers for halachic Chiddushim to Kesuvos 11a, resolves
the leading poskim in Eretz Yisrael. purposes. This would only seem to the contradiction by explaining that
The Gemara in Yevamos 78b, discusses make sense according to the Baalei both conception and delivery are
the issue of a woman who converts Hatosfos. According to the Baalei contributing factors to ones Judaism.
while she is pregnant. The Gemara Hatosfos, when the two babies are There are two fundamental elements
explains that the geirus is effective born, they are Jewish, and since they that give an individual the status of
not only for her but for the fetus as have the same mother, they should a Jew. There is shem Yisrael, Jewish
well. Many of the commentaries are be considered full-fledged siblings. nationality, which is attained by
bothered by this conclusion. A male However, according to the Ramban, being born to a Jewish mother. The
convert must undergo circumcision the two twins are not Jewish until second dimension is kedushas Yisrael,
prior to immersion in a mikveh. If this the circumcision is performed. How Jewish Sanctity, which is attained
particular fetus is male, how could the can they be considered full-fledged when one is conceived by a Jewish
mothers conversion be effective for siblings? Shouldnt we apply the rule

Rabbi Isaac Elchanan Theological Seminary The Benjamin and Rose Berger CJF Torah To-Go Series Shavuot 5777
mother. We take for granted that their ancestors as well? Why didnt communities. As we approach this
every child born Jewish has both of the ger shenisgayer principle apply after chag which takes us back to our
these components, but as Rav Trop matan Torah? national conversion we realize
suggests, these two elements dont it is insufficient to simply identify
Based on the analysis of the two
always go hand in hand. Perhaps, he ourselves as part of the Jewish
elements of our Judaism, I believe
suggests, the child born to a woman nation. We must realize the other
we can resolve these questions. Our
who converted during pregnancy is component of becoming a Jew, and
relationship with our ancestors and
considered a member of the Jewish renew our commitment to achieving
the fathers of our nation is a result
nation for the purpose of determining kedushas Yisrael. This component of
of being born to Jewish parents. The
his relatives, and therefore maintains Judaism requires constant reaffirming
descendants of Avraham, Yitzchak
his relationship with his twin brother and commitment. We relive this
and Yaakov had a shem Yisrael.
for halachic purposes. Since at the transformation every Shavuos and
Nevertheless, we were still missing a
time of his birth he was born to a reaffirm our commitment to Torah
critical component of being Jewish.
Jewish mother, he has the status of and mitzvos, thereby completing
We had not yet achieved the element
a brother to his twin. Nevertheless, the process of our own conversion
of kedushas Yisrael. This second
at conception he was the child of a to Judaism. The world is changing
element was only realized at Har Sinai
non-Jewish mother and therefore and constantly confronts us with
when we received the Torah and its
is missing the second element of new challenges. We must therefore
commandments. When we perform
being Jewish, kedushas Yisrael. For undergo an annual kabbalas Hatorah,
a mitzvah, we recite a beracha that
that, according to Tosfos, he requires a symbolic conversion, through which
states asher kideshanu bmitzvosav
a conversion in-utero and for the we maintain our kedushas Yisrael.
vitzivanu Who sanctified us with
Ramban, he still must undergo the
His mitzvos and commanded us.
conversion process after birth. Thus, Endnotes
We were endowed with holiness and
the two passages in the Gemara
sanctity when we received the Torah
are not necessarily contradictory. 1 This question could theoretically be
and mitzvos. In order to attain that applied equally to both the opinion of the
They are merely discussing different
additional component of Judaism, we Baalei Hatosfos and Ramban. However, as
components of becoming a Jew.
required a conversion process at Har we alluded to earlier, if a conversion takes
Perhaps one could suggest that these Sinai. It remains true that our family place in-utero and then the Jewish baby
two elements, Jewish nationality and relationships remained the same, since is born to a Jewish mother, he retains the
relationship with his mother. See Achiezer
Jewish spirituality, stem from the we already had Jewish nationality from 2:29. The relationship to the mother in such a
experience of the Jewish people at our ancestors. Nevertheless, Shavuos situation is more of a technicality and as such,
matan Torah. The Gemara, Kerisus imbued within us that kedushas Yisrael the first passage in the Gemara implies that
9a, states that bnei Yisrael underwent and completed the process of becoming conception is the determinant even according
a conversion at Har Sinai. In fact, we a Jew. In essence, every single one of to the Baalei Hatosfos.
use that process as the source for how us standing at Har Sinai was similar to 2 These two dimensions of Judaism are
we conduct our conversions. If this is the status of a baby born from a Jewish not only apparent to us. Our enemies have
recognized it as well. We have suffered from
true, then am Yisrael should have lost mother but conceived by a non-Jewish anti-Semitism in many different generations.
all of their familial relationships after mother. The same way according to Yet the persecution and animosity was
undergoing the conversion process this analysis the child would require triggered in different generations for various
at Har Sinai. Are we to assume that a conversion, the Jews at Har Sinai all reasons. We have often faced enemies that
after matan Torah, the Jewish people required conversion as well.2 would like to destroy the Jewish nation,
the descendants of Avraham, Yitzchak and
had no relatives because they were all It is remarkable how a modern Yaakov. Mitzrayim serves as the paradigm of
converts? Furthermore, dont we all dilemma encountered in a beis this type of antisemitism. They persecuted
recite three times daily that we are the din for geirus helps to illuminate us before we even attained kedushas Yisrael.
children of our ancestors Avraham, our perspective on the chag of
However there are other enemies, such as
Yitzchak and Yaakov? How can the Yavan and Amalek, who focused on Jewish
Shavuos. Many of us were born to sanctity and our observance of mitzvos.
Gemara consider am Yisrael converts, Jewish parents and live in Jewish
yet still maintain their connection to

Rabbi Isaac Elchanan Theological Seminary The Benjamin and Rose Berger CJF Torah To-Go Series Shavuot 5777