Parshat Tazria and the surrogate mother-5779

א  וַיְדַבֵּר יְהוָה, אֶל-מֹשֶׁה לֵּאמֹר.

1 And the LORD spoke unto Moses, saying:

ב  דַּבֵּר אֶל-בְּנֵי יִשְׂרָאֵל, לֵאמֹר, אִשָּׁה כִּי תַזְרִיעַ, וְיָלְדָה זָכָר--וְטָמְאָה שִׁבְעַת יָמִים, כִּימֵי נִדַּת דְּוֺתָהּ תִּטְמָא.

2 Speak unto the children of Israel, saying: If a woman be delivered, and bear a man-child, then she shall be unclean seven days; as in the days of the impurity of her sickness shall she be unclean.

ג  וּבַיּוֹם, הַשְּׁמִינִי, יִמּוֹל, בְּשַׂר עָרְלָתוֹ.

3 And in the eighth day the flesh of his foreskin shall be circumcised.

ד  וּשְׁלֹשִׁים יוֹם וּשְׁלֹשֶׁת יָמִים, תֵּשֵׁב בִּדְמֵי טָהֳרָה; בְּכָל-קֹדֶשׁ לֹא-תִגָּע, וְאֶל-הַמִּקְדָּשׁ לֹא תָבֹא, עַד-מְלֹאת, יְמֵי טָהֳרָהּ.

4 And she shall continue in the blood of purification three and thirty days; she shall touch no hallowed thing, nor come into the sanctuary, until the days of her purification be fulfilled.

ה  וְאִם-נְקֵבָה תֵלֵד, וְטָמְאָה שְׁבֻעַיִם כְּנִדָּתָהּ; וְשִׁשִּׁים יוֹם וְשֵׁשֶׁת יָמִים, תֵּשֵׁב עַל-דְּמֵי טָהֳרָה.

5 But if she bear a maid-child, then she shall be unclean two weeks, as in her impurity; and she shall continue in the blood of purification threescore and six days.

Rabbi Abraham Korman ( a prolific Israeli scholar who passed away in the late 1990’s) raises some interesting observations(in his sefer’Haparsha Ledoroteha’) connecting our parsha to the very modern concept of surrogate motherhood. It is obvious that there are not many sources from traditional texts which we can find to guide us in the application of halacha to this matter. (see Yabia Omer of R’Ovadiah Yosef zal who refers to a comment of Targum Yonatan on the birth of Dina as being the only reference he can find that relates to surrogacy (’and we do not learn halacha from Agada’.)Rabbi Korman finds that we can relate the first part of our parsha to this amazing development in medical science.

He quotes the Sifra at the beginning of our parsha.

[ד] "וילדה" – פרט לשילדה לפני הדיבור. או יכול שאני מוציא את שעיברה לפני הדבור וילדה לאחר הדבור?... תלמוד לומר "ואם נקבה תלד" – אין הדבר תלוי אלא בלידה. "תזריע וילדה" – עד שתצא ממקום שמזרעת, פרט ליוצא דופן. רבי שמעון אומר, יוצא דופן הרי הוא כילוד וחייבים עליו קרבן ובלבד שהוא פטור מחמש סלעים של בן.

4) ("Speak to the children of Israel …) if she give forth seed and bear" — to exclude (from the dictum that follows) a woman who had given birth before the "speaking." I might then think that I exclude one who had conceived before the speaking and given birth after the speaking; it is, therefore, written (Vayikra 12:5): "and if she bear a female" — the criterion is "bearing" (and not "conceiving"). (Vayikra 12:2): "… if she give forth seed and bear": (She assumes birth-uncleanliness) only if the child comes forth only from the place whence it was conceived" — to exclude a Caesarian birth. R. Shimon says: A Caesarian birth is considered "born" (in respect to tumah) and entails the bringing of an offering. It is just exempt from the five sela'im of the redemption of the first-born, (it not being "the opening of the womb").

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The argument here is whether an ‘unusual ‘birth brings with it the ritual impurity associated with birth. Rabbi Shimon (bar Yochai) says it does and the Sages disagree. Rabbi Shimon is arguing that the verse is referring to all types of birth, regardless of whether they are natural or not, and this is implied in the verse where no distinctions in the type of birth are alluded to. However the question still remains as to why the Torah says: , אִשָּׁה כִּי תַזְרִיעַ /’when a woman conceives’ and did not say the more obvious words ”Ki tailed-when she gives birth’?

Rabbi Korman answers with a tremendous ‘chiddush’ based on scientific developments in our time. What would happen if a woman was physically unable to conceive ( e.g.not able to produce eggs) but she still wants to be a mother? She can become a surrogate mother, whose womb can still be 'used' to hold genetic material provided by other people, or from her own genetic material together with her husband but not with regular conception but through the IVF procedure, to become a surrogate. In such a case she will not become ritually impure with ‘tumat leida’, the reason based on the explanation above of why a woman normally becomes ritually impure after birth and has to bring a sacrifice to the Temple accordingly. Whilst she is giving birth and experiencing birth pains, she makes an oath that she will never cohabit with her husband again, to avoid going through this another time.

See Chizkuni here:

שאלו תלמידיו את ר״‎ש בן יוחאי מפני מה אמרה תורה יולדת מביאה קרבן אמר להם שבשעה שכורעת לילד קופצת ונשבעת שלא תזקק עוד לבעלה לפיכך אמרה תורה תביא קרבן.

תביא כבש, “she is to bring a sheep as an offering;” when his students asked Rabbi Shimon why the mother of the baby has to bring an offering, he answered them that it was because during the contractions preceding her giving birth she swore not again to have marital intercourse with her husband which was the reason for the pain she had to endure. This was an inappropriate oath for which she as to atone.

Of course the oath is not fulfilled, but since it is made she has to atone for it, and this includes bringing a sacrifice after her ritual purity is complete. In the case of a surrogate, this oath will never be made, as she is not cohabiting with anyone to become pregnant. She is becoming a mother out of pure choice with no comebacks to her husband, as she did not cohabit to become pregnant in the first place. The concept of this oath will never apply and as a result neither will ritual impurity (which only follows a regular birth) nor the requirement to go to the Temple after the ritual impurity is over.

He also points out that the language used here is ‘zachar’ and ‘nekeva’ as opposed to ‘ben’ or ‘bat’, because since she is a surrogate, the child(ren) she is giving birth to is/are not her own but are belonging to the woman for whom she is carrying the child. This would suggest that the surrogate will not have the status of the birth mother, even if she carries the baby to term, as this is not her child.

This whole approach sheds a little more light onto an ongoing debate as to the status of the surrogate mother after birth and some Rabbis argue today that she is not influential in the future of the child, regarding sibling or other motherhood issues. Although the halachic debate is very extensive it is interesting to see how Rabbi Korman sees the whole new situation of surrogacy as being directly referred to by the verses in our parsha. His conclusions regarding the status of the surrogate are not agreed upon by all current halachists but his attempt to bring some clarity to this question is admirable and shows the ‘nitzchiut’ of Torah, which we believe in so strongly. He is absolutely convinced that the surrogate is not treated as the real mother regarding the laws of ritual purity and post birth sacrifice, and in fact she is not considered the mother at all, as she has given birth to a zachar and not to a ben (which would designate her  true maternal connection).

This is a matter which needs to be clarified further as the science develops. “Open my eyes and I will see the wonders of your Torah’.

Shabbat Shalom          Cherry Hill NJ/SCW     April 2019