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Halakha and Patriarchal Motherhood —An Anatomy of the New Israeli Surrogacy Law*

Abstract

The second half of the 20th century has been a period of innovation in medical technology, with much significance for the social relations of reproduction. The invention of the contraceptive pill changed our attitudes towards the control and prevention of pregnancy, and allowed us to differentiate between female sexual and reproductive activities. The development of blood-typing and genetic tests radically altered the legal procedures for proving paternity, and deeply influenced our understanding of the uncertainty of biological fatherhood. The innovation of various methods of medical imaging gave concrete and human shape to the image of the fetus in its mother's womb. The very moment of conception was transformed, by means of in vitro fertilisation, from a mysterious event taking place in the hidden spaces of a woman's body to an overt and exposed occurrence in a laboratory petri-dish.

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1 Cook Rebecca J., “International Protection of Women's Reproductive Rights”, (1992) 24 J. Int'l Law and Politics 645; Report of the International Conference on Population and Development (Cairo, 1994) (hereinafter: the ICPD Report), paras. 7.2, 8.19; Report of the Fourth World Conference on Women (Beijing, 1995) (hereinafter: the FWCW Report), para. 97.

2 The Holy See expressed a general reservation to both Chapter VII of the ICPD Report (entitled “Reproductive Rights and Reproductive Health”) and Chapter C of the FWCW Report (entitled “Women and Health”).

3 See text accompanying n. 6.

4 The Report of the Public-Professional Commission in the Matter of In Vitro Fertilisation (Israel Ministry of Justice, Jerusalem, July 1994) (hereinafter: The Aloni Commission Report), p. 8.

5 Ibid. Physicians practising in the area claim that these data are outdated, and that success rates are now higher. If this is the case, it may be due to screening-out of older patients and admitting candidates who present no visible indication of the cause of apparent sub-fertility.

6 Para. 6(d) of the Second Addendum to the National Health Insurance Law, 1994 (S.H. no. 1469, p. 156). Note that the Law does not, however, cover the costs of contraceptive devices. Likewise, not all cases of legal abortion in Israel are included in the Law's coverage.

7 Genesis 3:16.

8 In the Nahmani case (CA 5587/93 Nahmani v. Nahmani (1995) 49(i) P.D. 485) there was a dispute between an estranged couple as to the use of frozen embryos that were fertilised initially with the intention of entering an agreement with a surrogate mother. After the couple separated, the husband objected to continuing the procedure. Tal J., in the minority, referred to the hardship of the treatments as grounds for estoppel against the husband's otherwise sound legal argument: “The woman underwent a difficult and painful invasive procedure in her body so as to produce the eggs, in reliance upon the consent of the man to their fertilisation. Upon their fertilisation, the woman was denied any other alternative, such as fertilisation with ‘donor’ sperm. She altered her situation irreversibly in reliance upon his conduct. Hence, even if he has correct arguments as to the unenforceability of the agreement and as to the need for ongoing consent at each and every stage of the path to parenthood, and any other argument … one does not heed them and one does not allow him to make them heard”.

9 In most countries there is no special legislation on this matter. In some developed countries there is either by statute or by case law a prohibition against surrogacy. In England, for example, the Surrogacy Arrangements Act, 1985 prohibits any related commercial activity. To the extent that surrogacy arrangements do take place, it is in the absence of an express prohibition. In no other jurisdiction is there an official mechanism for approving surrogacy agreements similar to that established by the Israeli statute.

10 In Israeli law, see Shifman P., Family Law in Israel, vol. 2 (Jerusalem, 1989) 157168; Vilchik E., “The Surrogate Mother”, (1988) 17 Mishpatim 534; Shalev C., “Reproductive Law and the Right to Be a Parent”, in Raday F., Shalev C. and Liban-Kooby M., eds., Women's Status in Israeli Law and Society (Tel Aviv, 1995) 503, at 526–532; and Shalev C., “Surrogate Mother Arrangements — a Legal and Normative View” in Ben-Zeev A. and Almog S., eds., An Unusual Pregnancy — A Multi-Disciplinary Study on Artificial Insemination (HaKibbutz HaMeuhad, 1996, in Hebrew) 191.

11 These were the grounds for the decision of the New Jersey Supreme Court in In re Baby M, 190 N.J. 396. 537 A. 2d 1227 (N.J. 1988).

12 See, for example, Pateman C., The Sexual Contract (Stanford University Press, 1988) 204218; Field M.A., Surrogate Motherhood (Harvard University Press, 1988).

13 HC 1237/91 Nahmani v. Minister of Health (unpublished).

14 The basis for the physician's refusal was found in regs. 11 and 13 of the Public Health (Extra-Corporeal Fertilisation) Regulations, 1987 (see n. 21 below), which prohibited the implantation of a fertilised egg in certain circumstances, despite the fact that the couple were asking merely to perform the fertilisation. The risks entailed in acting contrary to the regulations include losing the official recognition of the Ministry of Health in the hospital department, which is a condition for the provision of services therein, and personal exposure to professional disciplinary proceedings under the Physicians Ordinance [New Version], 1976 (3 L.S.I. [N.V.] 80).

15 For a review of the main recommendations of the Aloni Commission and the central points of controversy between the majority and minority opinions, see Shalev C., “Insights on the Report of the Commission in the Matter of In Vitro Fertilisation”, (1995) 3 HaMishpat 53.

16 A v. B (1981) 35(iii) P.D. 57, at 81. The right to privacy is guaranteed under sec. 7 of Basic Law: Human Dignity and Liberty.

17 The Aloni Commission Report, supra n. 4, para. 7.4.

18 The two members in the minority did not disagree with the very principle of regulating surrogacy within known limits, but with the details of the regulatory scheme and the scope of the desirable limitations.

19 Note that the combination of the Law of Return, 1950 (4 L.S.I. 114) and the National Health Insurance Law, 1994 might frustrate the policy of preventing reproductive tourism. A Jewish person who immigrates is considered a resident, and thus entitled to national health insurance coverage, immediately on arrival in Israel. She would, therefore, be entitled to fertility treatment free of charge (aside from payment of the health tax). This could provide a financial incentive for Jewish people to come to Israel for reproductive purposes, receive the medical services in Israel, and then return to their own countries after concluding the treatment.

20 The question put to the Commission was whether to permit surrogacy where the carrying mother is also the genetic mother. This is often referred to by medical professionals as “partial surrogacy”, as opposed to “full surrogacy” which results from in vitro fertilisation where the surrogate mother is not the genetic mother of the fetus. Some of the Commission members thought that surrogacy should be allowed only where there was symmetry among the commissioning parents in terms of their genetic connection to the child. The majority, as mentioned in the text, considered that the method of conception was not normatively significant. The Aloni Commission Report, paras. 7.16–18.

21 HC 5087/94 Zabro v. Minister of Health (unpublished decision of 17 July 1995). Reg. 11 of the Fertilisation Regulations provided: “A fertilised egg shall not be implanted except in the woman who shall be the mother of the child”. Reg. 13 provided: “An egg taken from a donor shall not be implanted in a woman unless it has been fertilised with the sperm of the woman's husband”. In a narrow technical reading, reg. 13 does not apply in surrogacy arrangements, because there is no “donation” of an egg — in the sense of giving to another. The donor of a sperm or an egg does not intend to be the parent of the child-to-be, and when they give their genetic material to another they relinquish and revoke any connection to it. This is not the case with respect to the commissioning parents in a surrogacy agreement, who fully intend to raise the child themselves.

22 The Court decided that the Regulations should be considered void as of January 1, 1996. In a subsequent decision of 31 January 1996 the Court admittted a second request by the State to postpone the date until 6 March 1996, to allow for completion of the legislative process.

23 For the view that legal tools for addressing surrogacy could be found in the existing law and that the Regulations could have been voided without special legislation, see Korinaldi M., “On the Question of Surrogacy in Israel: Some Comments on the Aloni Commission Report” (1995) 3 HaMishpat 63.

24 (1995) H.H. no. 2456, p. 259.

25 The political consideration was that the matter could not be left unregulated (despite legal opinion to the contrary) and that without the consent of the rabbis and religious parties it would not be possible to pass legislation in the Knesset. Under pressure of the Zabro petition to the High Court of Justice, some rabbis were consulted as to the conditions under which surrogacy might be permitted according to Jewish law, and their response served as the basis for the conditions that were laid down in sec. 2 of the Bill. It should be noted that the halakha is, by its very nature, a system of pluralist opinions, and that in the matter of medically-assisted reproduction there are various, often contrary views.

26 (1996) S.H. no. 1577, p. 176. The term “surrogate motherhood” or “surrogacy” is not used in the Hebrew. A strict translation of the statute's title would read “Embryo Carrying Agreements”.

27 In the course of the preparation of the bill in the Knesset Labor and Welfare Committee, an exception was introduced to the restriction on the personal status of the carrying mother under sec. 2(3)(a): “the approvals committee may, however, approve an agreement with a carrying mother who is a married woman, if it has been proven to the committee's satisfaction, that the intended parents were not able, with reasonable effort, to enter a surrogacy agreement with a carrying mother who is not married”. This compromise was a result of concerns expressed by childless couples that the statutory restrictions would make it extremely difficult to find suitable candidates for carrying mothers, because of the perception, among other reasons, that an unmarried woman does not have support systems, which increases the risk of her rescinding the agreement, since she might not be able to keep her promise to deliver the child to the intended parents after the birth. See text accompanying n. 57.

28 Sec. 2(3)(b) of the Law. Sec. 1 defines “relative” as “mother, daughter, granddaughter, sister, aunt, and paternal or maternal cousin, excluding a relative by way of adoption”.

29 Sec. 2(5).

30 Sec. 2(4): “… the egg is not of the carrying mother”.

31 Sec. 3(a)(6).

32 Sec. 6: “including expenses for legal counseling and insurance fees, as well as compensation for loss of time, suffering, loss of income or temporary loss of earning capacity, or any other reasonable compensation”.

33 Sec. 4(a).

34 Sec. 4(a)(2). This provision is an example of the cautious approach taken by the legislature in allowing agreements of this nature only under limited circumstances. The approach of the Law is that one woman's mere “convenience” does not justify an arrangement whereby another woman carries a pregnancy for her. The underlying cultural message is that women ought to carry their own children unless a physician decides they are incapable of doing so, and that they do not have a choice in this respect.

35 Sec. 5(a)(1).

36 Sec. 5(a)(3) refers to terms of the agreement that violate or infringe upon the rights of “each of the parties”. The uniform language includes both the intended parents and the carrying mother, but it seems that this conceals the relative vulnerability of the carrying mother and the lack of parity in the parties' bargaining positions, as shall be elaborated below. See text to n. 59 below.

37 Sec. 10 of the Law.

38 Sec. 13 of the Law. The language of the statute — “the court shall not approve it unless …” — indicates that this is an exception to the rule that a parenthood order shall be issued to the intended parents in accordance with the agreement.

39 Sec. 11(b) of the Law.

40 Sec. 14(a) of the Law.

41 Sec. 18 of the Law. A pregnancy may be lawfully terminated by approval of a medical committee on any one of the grounds set out in sec. 316 of the Penal Law, 1977. One of the grounds is that the pregnancy is extra-marital. See text to n. 58 below.

42 Sec. 12(a) of the Law. Compare with the more guarded language of sec. 16 of the Adoption of Children Law, 1981 (35 L.S.I. 360, at 363): “The adoption creates the same duties and rights between the adopter and the adoptee as exist between parents and their children and confers upon the adopter, in respect of the adoptee, the same powers as parents have in respect of their children”.

43 The prototype of this provision is found in sec. 5 of the Women's Equal Rights Law, 1951 (5 L.S.I. 171).

44 Sec. 30 of the Adoption of Children Law, 1981; sec. 16(c) of the Surrogacy Law.

45 Values of privacy and confidentiality find expression in other sections of the Law. As a rule, court hearings shall be in camera (sec. 17). Similarly, disclosure of statements made during the meetings of the statutory approval committee is a criminal offence with a penalty of one year imprisonment (sec. 19(c)). Compare with secs. 21 and 34 of the Adoption of Children Law.

46 See Rosen-Zvi A., Israeli Family Law: The Sacred and the Secular (Papyrus, 1990, in Hebrew) 97, at 133; Shershevsky B., Family Law (2nd ed., Rubin Mass, 1977, in Hebrew) 343358.Mamzerut is thus a means to punish the adulterous wife through ostracising her child. The law of bastardy or illegitimacy serves this purpose in all legal systems. See Shalev C., Birth Power: The Case for Surrogacy (Yale University Press, 1989) 2932. I have expanded upon this matter as regards Jewish law elsewhere, e.g., in “Women in Israel: Fighting Tradition”, in Women's RightsHuman Rights: International Feminist Perspectives (Routledge, 1995) 92–93.

47 The definition of “family relative” in sec. 1 of the Law (see n. 28 above) excludes a family relation by way of adoption. The reason that an adoptive relation is not regarded as a family relation is that, according to the halakha, adoption does not sever the ties of the biological family, and for this reason it does not affect the laws of prohibition and permission in marriage and divorce. See sec. 16(2) of the Adoption of Children Law.

48 The Aloni Commission Report, para. 7.13.

49 This does not apply to non-Jewish persons resident in Israel. Sec. 2(5) of the Surrogacy Law allows the statutory approval committee to deviate from the same-religion rule “where all parties to the agreement are non-Jews”, on the basis of an opinion of the clerical member of the committee, who is representative of the parties' religious community according to sec. 3(a)(6). The Law does not provide for the possibility of an inter-religious couple.

50 Korinaidi M., “The Legal Status of a Child Born from Artifical Fertilisation with Donor Sperm or Eggs”, (19921994) Jewish Law Annual, vol. 18–19, 295, at 310–315, and in particular, n. 39.

51 Sec. 2(4) of the Surrogacy Law.

52 Sec. 2(4) of the Bill (see n. 24).

53 The Aloni Commission Report, para. 7.18. This was the conclusion reached on the question whether to prohibit the use of artificial insemination with the intended father's sperm as a means of conception, as opposed to in vitro fertilisation (see n. 20 above). Contrary to the Commission's position, the Law does not permit this option, because it prohibits any genetic relation between the carrying mother and the embryo. This means that the egg must come from another woman (either the intended mother or a donor), which makes it necessary to employ in vitro fertilisation.

54 M. Korinaldi, supra n. 50, at 300.

55 The Aloni Commission Report, paras. 4.1–4.13. The concern about the possibility of half-sibling marriage is pertinent to all forms of medically-assisted reproduction involving donor gametes, and ought not justify a special register for surrogate mother arrangements. On the other hand, it is possible that the right of the child to information about the circumstances of its birth is stronger in the case of surrogacy.

56 In The Handmaid's Tale, conception was attempted by means of sexual intercourse at a humiliating private ceremony in which the wife participated embracing the handmaid. It is interesting to engage in the mental exercise of considering a statutory scheme such as the Surrogacy Law if it involved sexual reproduction.

57 Kahn S., “Gentile Sperm and the Rabbinic Uses of Non-Jewish Bodies for Jewish Reproduction” (manuscript of paper delivered in Morocco, 1996, available from author). As opposed to this, the basic position of the Catholic Church is to broadly oppose any use of reproductive technology, considering it to be a forbidden interference in Natural Law and the divine scheme of the world.

58 Sec. 18 of the Surrogacy Law. See n. 41 above.

59 Sec. 5(a)(3). See n. 36 above.

60 Sec. 6, see text accompanying n. 32.

61 Sec. 19(b), which reads: “Any party to a surrogacy agreement or any person on their behalf who offers, gives, requests or receives consideration in money or kind in connection with performance of a surrogacy agreement without approval of the Approval Commiteee, is liable to one year imprisonment”.

62 The Surrogacy Arrangement Act, 1985, secs. 2(2)(a) and 2(3). Similarly, the English act that regulated abortion before the 1967 statutory reform exempted the pregnant women from the criminal prohibition. Israeli law inherited this humanitarian approach in its own abortion laws, as is still evident in sec. 320 of the Penal Law, 1977.

63 Jolin A., “On the Backs of Working Prostitutes: Feminist Theory and Prostitution Policy”, (1994) 40 Crime and Delinquency 69; Cheney B., “Prostitution — A Feminist Jurisprudential Perspective”, (1988) 18 V.U.W.L.R. 239, at 244.

64 Cf. Shrage L., “Should Feminists Oppose Prostitution?”, (1989) 99 Ethics 347.

65 See, for example, Ericsson L.O., “Charges Against Prostitution: An Attempt at a Philosophical Assessment”, (1980) 90 Ethics 335.

66 See, for example, Tinsman H., “Behind the Sexual Division of Labor, Connecting Sex to Capitalist Production”, (1992) 17 Yale J. Int. L. 241.

67 Pateman C., “Defending Prostitution: Charges Against Ericsson”, (1983) 93 Ethics 561, at 563.

68 For a general overview of this connection and its impact on women's legal status in both the public and private spheres in Israel, see Raday F., “Religion, Multiculturalism and Equality: The Israel Case”, (1996) 25 Israel Yearbook on Human Rights 193, at 226–235.

69 FH 2401/95 Nahmani v. Nahmani, (1996) 50(iv) P.D. 661.

70 HC 998.2078, 2444/96 Weitz et al. v. Minister of Health (unpublished decision of February 2, 1997).

71 Sec. 19(c) of the Surrogacy Law.

72 C. Shalev, Birth Power, supra n. 45, at 165–166.

73 See, for example, Chesler P., Sacred Bond — The Legacy of Baby M (New York, 1988); Pateman C., The Sexual Contract (Stanford, 1988) and the articles in the chapter on “Contract Pregnancy” in Bequaert, Holmes ad Purdy, eds., Feminist Perspectives in Medical Ethics (Indiana, 1992).

* This is a revised version of an article originally published in Hebrew: “Surrogate Motherhood — The Commerce in Reproductive Services” (1996) 46 Bitakhon Sotziali 87.

** Ph.D.; Expert member of the United Nations Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW); Lecturer, Israeli Centre for Academic Studies; Director, Ethics unit at the Gertner Institute for Health Policy Research at Tel Hashomer

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