There are rabbinical authorities who reject outright the idea of using donor eggs. Others believe that a woman may receive donor eggs as long as her husband has consented. The question of the mother is extremely complicated to answer. This is certainly a critical question as it impacts on the status and identity of the baby. According to traditional Judaism, the status of "who is a Jew" is determined by whether or not the mother is Jewish. In the case where the genetic mother and the gestational mother are the same person, then the issue is clear. What happens when the genetic mother is a different person from the gestational mother? Which mother is considered the mother for the halachic decision on religious status? If the genetic mother is not Jewish and the gestational mother is, what is the status of that infant? Rabbi Moshe Heinemann, Rabbinic administrator of Star-K Kosher Certification states unequivocally that if the egg is from a non-Jewish woman, then the baby is not Jewish. In this very stringent ruling, when a donor egg is used, the birth mother is not considered the halachic mother.

Other rabbinic authorities have also addressed this question and have concluded that there is halachic uncertainty regarding who is the mother. Rabbi Moshe Tendler writes: "the contributions of the gestational mother are quite consequential" (Pardes Rimonim, 1988). In fact, many halachic authorities regard the birth mother, rather than the egg donor, as having maternal status. The halacha on many issues relies on what can be readily observed with the naked eye. For instance, microscopic or small amounts of non-kosher contaminants in kosher foods, do not necessarily render the food non-kosher. Thus, the decision on maternity may be based on which mother gives birth (an action which is incontrovertible, and readily proven), rather than which mother provided the egg (a microscopic contribution, albeit a critical one). On the other hand, considering the important role Yichus, or inherited status, plays in some Jewish circles, genetic status could be of paramount importance, and perhaps the mother who provided the egg should determine Jewish status.

Men and Women Must Procreate

The biblical commandment to have children is the first commandment given to Adam after he was created. A similar directive is given in Isaiah 45:18, which reads: "He did not create the world to be desolate, but rather inhabited." Since Adam was specifically charged with "Be fruitful and multiply" that positive commandment has been interpreted as an obligation on the part of the man to reproduce. The quote from Isaiah, commentators have explained, pertains both to men and women: thus women are included in the obligation to fill the world.

It is clear that the scriptures have directed Jews to procreate, and this directive is so critical that Torah scholars agree it could be accomplished by natural or artificial means. The challenge of assisted reproductive technologies will be to sort out the complex relationships created by artificial reproductive processes, and to determine where to draw the line in terms of what techniques are ethical and permissible, which advances are questionable, and which are unacceptable.

Miryam Z. Wahrman is Professor of Biology, Director of General Education, and Director of the Center for Holocaust and Genocide Studies at William Paterson University of New Jersey where she has also served as Chair of the Department of Biology and Chair of the Faculty Senate.