Family Law

Rabbinical Court Rejects Donor-Conceived Child As Jewish

Religious complications can add new levels of unexpected complexity to having a baby.

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Choosing an egg donor can be a difficult decision. For most, it’s not the first or preferred path to parenthood, and it often presents substantial medical and financial obstacles. Plus, the choice of a specific donor will forever affect your child’s future. No pressure!

For some, a potential donor’s religion may be the most important factor. That’s particularly true where a religion has specific rules about parental lineage, and whether a child can be considered a member of the religion from birth. Famously, many Jewish denominations strictly follow matrilineal descendancy, where a child born to a Jewish mother is automatically Jewish at birth. Anyone else, according to these denominations, must go through a conversion process before becoming Jewish.

Recently, one Jewish Israeli couple turned to an egg donor for help conceiving. After the wife delivered the couple’s new baby, however, the couple received a disappointing ruling from the Israeli Rabbinical Court on the Jewish status of their child. Despite their careful choice of an anonymous egg donor that had been listed as Jewish in the Population Registry of the Interior Ministry of Israel — and the couple themselves being Jewish, including the mother who carried and delivered the baby — an Israeli Rabbinical Court rejected the child’s Jewish status.

It Is All About Gestation. In Some Places.

Friend of this column and podcast guest, American assisted reproductive technology (ART) attorney Amira Hasenbush, recently wrote a piece on Jewish Law and Assisted Reproductive Technology in the Fall 2019 ABA Family Advocate magazine. She described the different approaches taken by the major American Jewish movements addressing assisted reproductive technology. Of the Orthodox and Conservative movements — the stricter denominations of Judaism — the vast majority of rabbis “hold that the woman who gestates the child is the halachic [legal] mother of the child, and therefore the egg donor’s religion is irrelevant for purposes of transmission of Jewish heritage.” Hasenbush explained that the Reform movement — a less strict denomination of Judaism — also focuses on the gestating parent, holding that even if the intended father uses his sperm and is not Jewish and the egg donor is not Jewish but the intended mother who gestates the child is Jewish, the child will not need a formal conversion. Instead, the child will need only to affirmatively participate in “positive acts of identification.” That requirement, however, is true for all children in interfaith families.

In the present case, the egg donor was listed as Jewish in the Israeli Population Registry. And the Jewish mother carried and delivered the baby. So wait, why wasn’t this Kosher?

Gestation Rejected.

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The Rabbinical Court first rejected the idea that the mother’s status as Jewish was sufficient to establish the baby’s status. Instead, it was the egg donor’s status that was relevant. And despite the egg donor being listed as Jewish, the Rabbinical Court ruled that because the donor was anonymous, the Court lacked sufficient evidence to determine if the donor was Jewish pursuant to the Orthodox Rabbinate’s higher, stricter standards than those of the secular State’s Population Registry. Specifically, the Rabbinical Court noted that the Population Registry had flaws in its determination of who was included as Jewish, and the Population Registry failed to adhere to standards that were rigorous enough to satisfy the Rabbinical Court.

Critics of the decision have pointed out other, contrary authority, where Jewish law was applied and ruled that it is the religion of the gestating mother that is determinative of the religion of the child. The Rabbinical Court’s rejection of the gestational mother’s passing of her religious lineage, in combination with their rejection of the finding of the Population Registry as to Jewish status, could have real consequences for all Israeli persons conceived by anonymous egg donation. Oy.

Why Is It So Important?

Hasenbush explained to me that being recognized as Jewish in Israel is not just a label, but also has serious, real world consequences. For example, Israel does not have civil marriage, but rather only religious marriage under the Israeli rabbinate. And because interfaith marriage is not recognized by the Israeli rabbinate, if someone is not recognized as Jewish, they may not be permitted to marry the person of their choosing in Israel without first undergoing an onerous conversion process. Also, the problem can quickly compound itself in families. If a woman is not recognized as Jewish, her children will also not receive recognition without undergoing their own formal conversion. Even then, problems may persist. For example, descendants of priests’ lineage (called Cohens) are not permitted to marry female Jewish converts.

More broadly, Hasenbush believes that the Rabbinical Court’s ruling represents a larger problem of the Israeli rabbinate’s decisions, which often exclude and stigmatize less traditional parts of the Israeli Jewish population as well as non-Jews throughout the country.

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So What To Do When Choosing An Egg Donor?

I reached out to Tel Aviv-based Israeli assisted reproductive technology law attorney Victoria Gelfand. Gelfand explained that the news of the Rabbinical Court was frustrating, but she didn’t think it was *cough* unfaithful to Rabbinical authority.

She explained that many Jewish families specifically seek Jewish egg donors or surrogates so that their children will be recognized as Jewish, but ultimately that these intended parents risk failing at that goal –- at least in the eyes of the Rabbinical Courts. For this reason, Gelfand and other Israeli ART attorneys recommend that Jewish families stop worrying so much about this issue, and look for donors or surrogates based on other qualities, such as the health of the donor or the surrogate. Having a conversion process for newborn children after birth would be an overall easier goal to achieve. And girl, if you want to marry that Cohen, but don’t want to settle for a common law marriage –- just marry him by a civil ceremony allowed in so many other countries besides Israel. Destination wedding!

Becoming a parent through assisted-reproductive technology can be hard enough! Religious complications add whole new levels of unexpected complexity. My advice is to always seek a qualified attorney and discuss with them all specific issues that are of major importance to you in advance. If religious concerns are important to you, you should speak to an attorney who understands those concerns and, when applicable, the Orthodox laws surrounding them.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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