Egg donation and surrogacy are assisted reproductive technologies in which an ovum (egg) is retrieved from one woman (the egg donor or genetic mother) and then fertilized in vitro. The resulting embryo is transferred to another woman (the birth mother or surrogate), who carries the fetus until its birth.
Legal policies on who may serve as an egg donor or surrogate, and who is eligible for egg donation or surrogacy, vary among different jurisdictions.
There is no clear halachic consensus as to whether the status of the child as a Jew is based on the genetic mother, the birth mother, or both. Using a Jewish surrogate and/or a known Jewish egg donor is preferred when possible, so that there is no doubt about the baby’s religious status.
In practice, babies born from procedures involving non-Jewish surrogates or egg donors often undergo conversion in early infancy to ensure that they are considered Jewish according to all opinions.
Since they are contractually obligated to carry the baby, surrogates cannot be anonymous. In order to rule out an unwitting future marriage between halachic siblings, Jewish egg donors should be known or listed in a registry. (At this point in time, the medical establishment is less concerned than the halachic establishment about the chances of sibling marriage, because the statistical odds are very low.)
Marital relations are not involved in in vitro fertilization. Nevertheless, the surrogate or donor should ideally be a woman for whom relations with the genetic father would not violate a serious sexual prohibition (giluy arayot), since some halachic authorities argue that that would have negative halachic implications for the child. Therefore, a Jewish surrogate or donor should not be closely related to either parent (e.g. not a first-degree relative), and should ideally be unmarried.
Some authorities may permit using a married surrogate on a case-by-case basis, following individual consultation, because no act of prohibited relations is involved in these procedures.
At this stage, Nishmat’s Rabbis do not make rulings on the question of whether it is permissible for a married woman to be a surrogate, though they recognize rulings from other halachic authorities.
To learn more about assisted reproductive technology and sperm donation in halacha, click here.
To learn more about sperm collection for fertility procedures, click here.
Yoatzot Halacha Fertility Counselors offer free personal consultations for couples exploring egg donation and surrogacy. Click here for details.