Introduction
A few years ago we discussed the question concerning a traditional, but not fully observant, couple who conceived a child through in vitro fertilization (IVF)[1]. In one case, a non-Jewish woman donated the ovum and the wife gave birth to the child, and in another case, the wife donated the ovum and a non-Jewish woman gave birth to the child. These situations raise two critically important and highly sensitive Halachic issues—whether the children conceived in this manner require conversion and whether a Beit Din may convert a child if it will be raised by not fully observant parents.
We addressed the issue of converting a child that will be raised by non-observant parents. We concluded that a mainstream Beit Din will convert a child only if it is more likely than not that the child will live an observant lifestyle as an adult. We did, however, raise a question concerning when the Beit Din is unsure as to whether the chances for success are more likely than not, such as when parents are “traditional” but not fully observant. In ordinary circumstances, it is appropriate to be strict, since Safeik MiDeOraita LeChumra, we must rule strictly regarding matters of Torah law, certainly in regard to something as basic as Jewish identity. However, what if it is questionable if the conversion is altogether necessary such as might be the case regarding a situation of IVF that we described?
We also examined the question as to who is defined by Halachah as the mother— the woman who donates the ovum or the host mother, the woman who gives birth to the child. We summarized the vigorous debate engaged in by Poskim of the past three decades as to how to resolve this issue. Neither side has demonstrated its position in a conclusive manner.
Hence, absent a clear consensus, Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 4:186), Rav Yosef Shalom Eliashiv (cited by Rav Zvi Ryzman in Techumin 37:97-98), Rav Ovadia Yosef (cited by Rav Zvi Ryzman in Techumin 37:97-98), Rav Ben Zion Abba Shaul (Ohr L’Tziyon, Yevamot 42a), Rav Shmuel Wosner (cited by Rav Zvi Ryzman in Techumin 37:99-100) Rav Asher Weiss (cited by Rav Zvi Ryzman in Techumin 37:100), Rav Zalman Nechemiah Goldberg (Techumin 10:281), Rav David Feinstein (personal communication), and Rav J. David Bleich (personal communication) rule that one must act strictly in accordance with both opinions.
According to these many authorities, if either the donor of the ovum is not Jewish or the host mother is not Jewish, the child needs a conversion, albeit MiSafeik (due to the unresolved Halachic issue of who is regarded as the Halachic mother). This has emerged as standard practice in contemporary mainstream Batei Din.
Converting the Child - Rav Ezra Bick vs. Rav Hershel Schachter
Our question of converting a child whose either donor or host mother is non-Jewish (but the other mother is Jewish) and the parents are traditional but not fully observant, places us at the nexus of two unresolved questions: the question as to the propriety of conducting such a conversion and the question as to whether the donor or host mother is regarded as the Halachic mother. One could argue that such a situation merits leniency since there are two considerations to be lenient (a double doubt, “Sefeik Sefeika”)—perhaps the child will emerge as observant, and perhaps the child is already Jewish by virtue of either its birth or donor mother.
One could also argue that it is a Zechut Gamur to become Jewish rather than remain a Safeik Jew. It is normally not a Zechut Gamur for the child to convert if he will not observe Torah since he will be accountable to Hashem for violating Torah, for which he would not be held accountable if he remained non-Jewish. However, a child whose birth or donor mother is not Jewish must observe the Torah whether or not he converts, due to the possibility he is Jewish and he will be held accountable if he does not do so. Moreover, it is highly difficult for an individual to have his Jewish status to be unresolved and thus might be a Zechut Gamur for his doubtful condition to be resolved.
Rav Ezra Bick, in a letter that appears in a 2014 issue of the Medical Halacha journal Assia, agrees with this assertion, adding that it is untenable for someone to be in a situation where he is not permitted to marry anyone, as stated in the Mishnah (Gittin 4:5) regarding one who is a half-slave and half free individual. One whose Jewish identity is in doubt may not marry either a Jew or a non-Jew. Thus, in such a situation it is reasonable to state that all should agree that it is a Zechut to convert a child whose either birth mother or genetic mother is non-Jewish provided that either his birth or genetic mother is Jewish. Rav Mendel Senderovic stated in a Shiur delivered to a Dayanim convention held at the Beth Din of America on November 1, 2018, that he agrees with this approach.
However, Rav Hershel Schachter expressed at the same convention that he disagrees with this assertion. He argues that while such a child would benefit from a social perspective from such a conversion, the Beit Din is not regarded as conferring a Zechut upon a child who is unlikely to be an observant Jew. Rav Schachter insists that social benefit is irrelevant to Geirut. Accepting the yoke of Mitzvot is the sole criterion in the conversion process. Thus, since a child raised by non-observant parents is not likely to observe Mitzvot, Rav Schachter does not sanction such a conversion, even if the child is already regarded as a Safeik Jew.
Conclusion - Rav Michoel Zylberman
At the Dayanim convention, I asked Rav Michoel Zylberman, the Geirut Administrator of the Rabbinical Council of America/Beth Din of America, as to the policy of the RCA and BDA concerning this matter.He told me that they adopt somewhat of a compromise approach to this issue.They will require the adoptive parents in such a case to be observant.However, they would be a bit more lenient regarding the level of Torah observance of the adoptive parents, in an IVF situation.
[1] Couples who require IVF normally wish for the procedure to be performed on the wife’s own egg, after which she will carry the fetus herself. However, sometimes the wife has a medical condition that prevents her from carrying a fetus. In such a situation, she might provide the egg for IVF and seek a surrogate mother to carry the fetus. In other cases, the wife cannot produce eggs, so she seeks an egg donor for IVF, but she then wishes to carry the fetus herself. A couple should consult their Rav, however, as to whether it is permissible to undergo either of these types of IVF.