Does a Fetus Require a Conversion?

In the previous two issues, we provided an overview of the Jewish conversion process.  We discussed the role of circumcision and immersion and the role of acceptance of mitzvot.  In the discussion about acceptance of mitzvot, we briefly presented two approaches to understanding how a minor can be converted.  The first approach assumes that the rabbinical court (beit din) can perform the conversion on behalf of the minor.  The second approach assumes that the minor must accept mitzvot upon becoming an adult.  In this issue, we will discuss the case of a woman who converts while pregnant.  Does the fetus require a conversion?

Talmudic Sources

There is one source that seems to indicate that the fetus does not require conversion.  The Gemara, Yevamot 97b, cites a Beraita that if two twin boys convert after they are born, they are technically not considered brothers.  This is based on the concept that a convert is considered as if he is newly born and is not related to his previous relatives (ger shenitgayer k'katan shenolad).  However, the Beraita does state that if a woman is pregnant with twin boys and converts while pregnant, those twins are considered brothers.  The implication is that we don't employ the ger shenitgayer k'katan shenolad principle because there is no need to convert the two fetuses who stand to be born to a Jewish mother.

Yet, there is another source that explicitly discusses the conversion process of a fetus.  The Gemara, Yevamot 78a, introduces the conversion of a fetus as a proof to the debate as to whether a fetus is considered a limb of the mother (ubar yerech imo) or whether it is not considered a limb of the mother.  The Gemara states that when a pregnant woman converts, the fetus does not require an additional immersion after birth.  The Gemara implies that this proves that the fetus is a limb of the mother and her conversion includes the fetus.  The Gemara rejects this assertion by claiming that when the mother immerses, the fetus is immersed as well and the mother's body does not serve as an interposition (chatzitzah).  It is for this reason that the fetus does not require an additional immersion after the birth.

The Gemara, in finding a means to accomplish immersion on the fetus, implies that the fetus requires a conversion.  This prompts many Rishonim, in their comments to Yevamot 47b (see Tosafot s.v. Matbilin, Ramban, s.v. Nitrapei, and Ritva, s.v. Shihui) to question whether one can extrapolate from the conversion of a fetus that in general, the immersion can take place prior to the circumcision.  We are then left with the following problem: how is it possible that a conversion takes place in-utero and the two twins remain siblings?  Why don't we employ the ger shenitgayer k'katan shenolad principle?

Resolving the Apparent Contradiction

The Acharonim present four approaches to resolve the apparent contradiction between the law that twins whose mother converted while pregnant are considered siblings and the law that a fetus (theoretically) requires immersion.  First, R. Chaim Ozer Grodzenski (1863-1940), Achiezer 2:29, is of the opinion that the in-utero conversion would not prevent the twins from becoming siblings.  If one is converted in-utero, one is nevertheless related to one's mother.  Therefore, all children born to that mother after her conversion are considered siblings.

Second, R. Yitzchak Rabinowitz (c. 1853-1918), Zecher Yitzchak no. 4, and R. Naftali Trop (1871-1928), Chiddushei HaGarnat, Ketuvot no. 28, suggest that there is no real conversion that takes place in-utero.  R. Rabinowitz explains that it is nevertheless a mitzvah to perform immersion on the child because he comes from a non-Jewish background.  Without that immersion, the child is nevertheless considered Jewish.  R. Trop explains that if there is a non-Jewish father, an immersion is required in order for the child to enter into kedushat Yisrael (sanctity of the Jewish People).  As such, the Gemara's discussion about immersing the fetus is only relevant for the additional benefit of immersion, not to conversion.

Third, R. Avraham D. Kahana-Shapira (1870-1943), D'var Avraham 3:7, suggests that the question of whether a conversion is required for a fetus is contingent on the question of whether a fetus is considered a limb of the mother or an independent entity.  If the fetus is a limb of the mother, there is no need for a conversion.  If it is an independent entity, it requires a conversion.  The Beraita that considered the twins to be siblings follows the opinion that a fetus is a limb of the mother.

Fourth, R. Kahana-Shapira suggests another approach to resolve the apparent contradiction.  He suggests that if the fetus did not undergo a conversion, the child would be considered partially Jewish and partially non-Jewish.  The Jewish portion would be a function of the development of the fetus subsequent to the conversion of the mother.  The non-Jewish portion would be a function of the development of the fetus prior to the conversion.  Therefore, the twins would be considered siblings because a portion of their fetal development was after their mother's conversion.  Yet, the twins require their own conversion to convert their non-Jewish portion.  

Practical Ramifications of the Conversion

One might ask: What is the difference if the child is Jewish by virtue of the fact that his mother's conversion also applied to the fetus or by virtue of the fact that the child was born to a Jewish mother?  Isn't the child Jewish either way?  There are a number of practical differences.  First, Ramban, op. cit., notes that if the child is a male, he requires a circumcision in order to complete the conversion.  Ritva, op. cit., quotes his teacher who disagrees and maintains that even if conversion is required, it is accomplished in-utero and the circumcision that he undergoes is not a circumcision of conversion, but rather the ordinary circumcision that is required for each Jewish male.

The Gemara, Shabbat 135b, cites a Beraita that circumcision of conversion does not need to take place on the eighth day.  R. Kahana-Shapira op. cit., notes that ostensibly, if the conversion takes place in-utero, and the circumcision after the birth is a circumcision of conversion, that circumcision should not be delayed until the eighth day.  However, if the circumcision is not a circumcision of conversion, the circumcision would take place on the eighth day.  R. Kahana-Shapira adds that if one assumes that the conversion of the fetus is only necessary for the fetal development as a non-Jew, the circumcision required for the Jewish portion of the child must take place on the eighth day.

Second, the Gemara, Ketuvot 11a, states that if someone was converted as a minor, he/she has the option to reject the conversion upon reaching bar/bat mitzvah.  R. Aryeh Leib Heller (1745-1813), Avnei Miluim 4:3, notes if a conversion takes place in-utero, the child would then have the right to reject the conversion.  If the child is Jewish by virtue of being born to a Jewish mother, there would be no option to reject the conversion.

Third, in the previous two issues, we noted that a beit din is required for a conversion. R. Yechezkel Landa (1713-1793), Dagul Mer'vavah, Yoreh De'ah 268:6, discusses the case of a woman who converted without informing the beit din that she is pregnant.  He notes that the question of whether the child is Jewish is contingent on a dispute.  Ostensibly, R. Landa is of the opinion that the question is contingent on whether there is a conversion takes place in-utero.  If there is a conversion, the beit din would be required to know that the mother is pregnant.  If there is no conversion in-utero, there is no requirement for the beit din to know that she is pregnant.

Fourth, this discussion is very relevant in determining motherhood in the case of an egg donor or surrogate motherhood.  Do we assume that the woman who provided the egg, the genetic mother, is the halachic mother or do we assume that the woman who carried the fetus is the halachic mother?  If conversion of a fetus is not necessary, it might indicate that motherhood is determined by the woman who carried the fetus.  This is because this approach views birth as automatically establishing a relationship between the fetus and the woman who gave birth to the fetus.  If conversion of a fetus is necessary, it might indicate that motherhood is determined by the genetic mother.  This is because this approach rejects the notion that birth establishes a relationship between the fetus and the woman who gave birth to the fetus.  However, there are a number of nuances specific to egg donation and surrogate motherhood that are beyond the scope of this presentation.