“You’re too sick to have a baby, don’t even think about it!” Those were the words practically shouted at me by a high-risk obstetrician I had gone to see at a major NYC hospital when I was trying to manage my failing kidneys and my overwhelming desire to start a family. I was in my late 20s when I found out I had kidney disease and might need a kidney transplant one day. Miraculously, this did not affect my daily life, and aside from my blood work results, I would have never known I was sick.
At 31, I was blessed to finally meet and marry my husband. Shortly thereafter, my health began to decline. Our attention was immediately focused on finding me the best care team, while also exploring how to safely start our family. That is where the previously mentioned high-risk OB came into the picture. I thought that if I just found the right doctors who would let me get pregnant, everything would be OK. I soon began to learn that getting pregnant at that time really wasn’t a safe option for me or for a potential baby.
Eventually, I connected with a nephrologist at Weill Cornell Hospital who works with women in their childbearing years. She thoughtfully explained my options to me. I was not qualified as sick enough to need a transplant right away, but I was also too sick to get pregnant. They predicted I would be in my 40s when I would eventually need a transplant. I could either wait to be medically cleared to have a baby one-year post-transplant, or consider surrogacy. Neither option felt right. I did not want to remain in a constant state of limbo, waiting for my “one-day” transplant. I also knew very little about surrogacy and was heartbroken by the idea of not carrying my own children. Of course, communal expectations and assumptions were also playing a large part in my pain and fear. After many tears, prayers, and conversations with our parents and rav, Rabbi Ezra Schwartz, we decided surrogacy was our only option to have a family safely. The idea of waiting any longer broke my heart.
Shortly after that, I began the IVF process to create embryos that would one day be transferred to a surrogate. Ironically, that caused my kidney disease to worsen exponentially, moving up my transplant from one day in my 40s to nine months later. I will spare you the details of my medical history, but simultaneous to preparing for my kidney transplant, we matched with a surrogate and prepared to do an embryo transfer. Since then, I have had a successful kidney transplant, with my mother, Susan, as my donor, and we were blessed to have two beautiful children born via surrogate.
We were incredibly private about the entire experience. There were so many unknowns and concerns, we just didn’t have the emotional bandwidth to share what was going on with anyone outside of our immediate family. But after announcing the birth of our first child, we were surrounded by nothing but excitement, love, and kindness, and therefore, felt comfortable sharing about our journey to parenthood. That turned into my receiving one call after another from people interested in exploring surrogacy.
The top three questions I receive about surrogacy are:
Should one use a Jewish or non-Jewish surrogate?
How does one trust a surrogate?
Is there any communal funding available to offset the cost of a surrogacy journey?
Each of these questions could be articles on their own, as could many of the other questions I have received. I am honored to be co-authoring this article with Rabbi Ezra Schwartz, to address these concerns.
Halacha and Surrogacy
When people pursue the option of surrogacy to assist in bringing a baby into the world, one of the major decisions they have to make is whom to choose as the surrogate. Personality, health history, familial situation, and many other factors go into making the best possible choice. The halachic couple trying to have children via surrogacy must consider an even more significant question: Should they choose a Jewish or a non-Jewish surrogate? Although this may sound counterintuitive as many people desire a Jewish surrogate, the opinion of most poskim (halachic decisors) is that a non-Jewish surrogate is preferred.
Beyond a greater pool to choose from, there are a few reasons for the preference of a non-Jewish surrogate. There is a well-known dispute about whom halacha considers the true mother. Of course, on the practical level the real mother is the woman who loves, raises, and cares for the child, but on the technical halachic level, maternity is subject to question. Is motherhood determined by genetics and thus the woman genetically related to the embryo counts as the halachic mother, or is maternity defined by childbirth, and thus the woman who delivers the baby is considered the halachic mother?
Most treat this question as unresolvable and in practice both the genetic mother and woman who births the child are halachically considered the parent. This can create a potential situation where a surrogate can bear children from several egg donors creating the remote possibility that a brother can marry his sister. Halacha is concerned with this remote possibility. Shulchan Aruch (Even HaEzer 2) forbids a man from marrying wives in two different cities out of fear that a brother may marry his sister. According to some, this concern applies even to a well-known individual. Therefore, even when there is a contractual obligation to divulge that the child was born of surrogacy, halacha may likely be concerned. With a non-Jewish surrogate where the children are not halachically the progeny of the birth mother, this concern is obviated.
There are some poskim who permit even a married Jewish woman to serve as a surrogate for someone else. In this case there are two additional concerns. Halacha (Even HaEzer 13) forbids a man to marry a meuberet chavero, a woman who is pregnant with the fetus of another man. If a married woman carries for another woman, a strong case can be made that the husband of this birth mother will be forbidden to be with his wife. If the egg donor is non-Jewish, Noda BeYehuda and other major poskim believe that the prohibition of meuberet chavero does not apply. Of greater concern in the case in which a married Jewish woman carries for another couple is that there are poskim who will treat the offspring as illegitimate, a mamzer. Although most believe that absent a physical act of coitus there cannot be mamzerus, nonetheless Rav Shlomo Zalman Auerbach and Rav Herschel Schachter are concerned with the possibility of mamzerus whenever a married woman bears the child of a man other than her husband. Given the gravity of illegitimacy in halacha, it is prudent to avoid any possible concern.
The choice of a non-Jewish surrogate would require the baby to undergo gerut (conversion) due to the uncertainty of the true halachic mother. Although converting one’s baby is emotionally difficult and daunting, in general, it is a relatively uncomplicated process. The bris milah (circumcision) for a baby boy serves both as a milah for gerut and as a regular bris. Immersion a baby in the mikvah is also not complicated. Batei din routinely convert children born via non-Jewish surrogate, or when the egg donor is non-Jewish. Since in this case conversion is done out of uncertainty, a bracha is not recited.
There is one important caveat. Reliable batei din will only convert a child when they are convinced that the conversion benefits the child (serves as a zechut). The opinion of most poskim is that it is not halachically beneficial to become Jewish when the parents are non-observant and likely the child will not lead a life of Torah and mitzvot. In these complicated situations, some suggest that a Jewish surrogate be employed, thereby obviating the need for conversion. However, this situation may be an opportunity for the non-observant couple to become more observant. Those who are inquiring whether to employ a Jewish or non-Jewish surrogate may be open to becoming more observant to ameliorate any concern for their child. These cases should be discussed with a knowledgeable and sensitive posek.
Trusting a Surrogate
Once a woman, or a couple, can get over the emotional hurdle that she will not carry her own child, but rather needs the support of a surrogate to do so, she has to become emotionally OK with trusting the surrogate. If people choose to work through a surrogacy agency, they will be presented with the profile of a potential surrogate. Currently, the wait time to match with a surrogate is 8-12 months; this is a painstakingly long process. Similar to shidduch-dating, two strangers are matched together on paper, with their first “date” being over Zoom. If they mutually agree to work together, the surrogate moves on to get medical clearance. Once that is done, the contract stage begins. It is here where one tries to think of any issues that may hypothetically arise, while still being considerate of the surrogate and her life outside of the surrogacy journey. One example of what we included in our contract was that if our surrogate ever had a health emergency or question on a Shabbat or holiday, her doctor was the only one who could make the necessary decisions in line with general halachic guidelines set forth. She had to consult that doctor and not make any decisions on her own since we could not speak with her.
Throughout the entire pregnancy, we had to trust and often remind ourselves that our surrogate wanted to deliver us a healthy baby and that she was doing everything she would do if she were pregnant with her own child. And yet, each night, I would find myself awake wondering if she took her vitamins, ate healthy food, wore her seatbelt, and so much more that was out of my control.
Funding for Surrogacy
When people reach the point of surrogacy, they have likely overcome a serious health issue or struggled significantly with infertility or pregnancy loss. It is also likely that they have already spent thousands, if not tens of thousands of dollars trying to have a child successfully. A surrogacy journey can cost anywhere from $130K to $150K. This can be a prohibitive cost for many and unfortunately, there is little to no funding available through community organizations to help defray the costs of surrogacy. There are some organizations that give grants to people pursuing IVF, but others will not award the grant if the IVF is for third-party reproduction, i.e., surrogacy.
Our community has come a long way in taking the taboo out of the conversation around pregnancy and pregnancy loss, but we still have more work to do to ensure that funding is available to help offset the cost of surrogacy. Many communities have gemachs that give out interest-free loans, but often people do not know that these exist. If you live in a community that has a financial gemach, please consider making the community aware that this funding is available for surrogacy.
Conclusion
People have asked me how I have the courage to speak about my experiences with surrogacy. I do it for a few reasons. The first being that I felt very isolated and alone when we were going through our first surrogacy journey. Since then, I have created a community for Jewish people going through surrogacy to connect and support each other. I never want anyone to go through this alone, and raising awareness alleviates the desire and need to keep one’s surrogacy journey private.
The second reason why I speak about surrogacy is because I want to normalize it. Too often people have told me that they heard that it is not allowed according to Jewish law. As Rabbi Schwartz explained above, it most definitely is allowed when it is medically necessary. There are halachot in place which one must adhere to, but it is by no means prohibited.
The third reason why I wish to normalize it is because of all the couples out there who struggle for years to have children and for whom this is their only hope. Like for the young woman who, at 18 years old, called me to learn about surrogacy as she was born without a uterus and knew this would be her future.
Lastly, I do not want my children to ever feel that they are not welcome in our community, and by educating those around me, I am doing my part to ensure that their Jewish identity, and our role as their parents, is never questioned.
If you or someone you know is interested in learning more about surrogacy, please feel free to reach out to me at [email protected].
This article was written with input and guidance from Rabbi Ezra Schwartz.
