A Cohen "C" marries a non jewish woman "G" who converts before having a baby girl ("S"). Upon moving to Israel, the Rabbinut determined that although conversion was orthodox, because it took place in Romania, "G" and teenage "S" must re-convert (they did re-convert). "S" married Cohen "R" abroad since he could not marry a Ger. They had a boy "I" and a girl "A" who were Chalal and Chalila, respectively.
"I" (who was son of a Cohen who married a Ger) marries a Jewish divorcee "B". I believe that the Jewish divorcee "B" becomes a Chalila when they marry.
They plan to have two children - one boy and one girl via IVF using the egg and sperm of the Jewish divorcee (Chalila?) "B" and the Chalal "I". The Jewish divorcee "B" will give birth to one child. A non-jewish gestational surrogate will give birth to the other child (using the jewish egg and sperm).
1) is the baby boy a Chalal since he is born from a Chalal "I" and a Halachic jew Chalila "B"? are all of baby boy's offspring and their offspring also chalilim?
2) is the baby girl a chalila (since she was born from a chalal "I" and a halachic jew chalila "B")? can she marry a cohen? are all of her offspring and their offspring also chalilim?
3) Does the baby born from the gestational surrogate (using the Jewish mother's egg) need to be converted?
4) if there is an option, is it "better" for the jewish divorcee chalila to give birth to the girl, or to the boy (in terms of not limiting their future marriage options due to chalil/chalila/ger status)? i.e. if the girl is a chalila anyway, and will be forbidden to cohenim, does it matter that she is also a ger (even though she is from a jewish egg and sperm) if born from the gestational surrogate?
I greatly appreciate your analysis.
Maz Paz, United States
1) My answers to questions (1) and (2) assume that the children were born naturally, without a surrogate mother involved.
When a Kohen marries a Giyores, the child is a Chalal. When this Chalal marries a divorcee, the child is also a Chalal. The Shulchan Aruch (Even ha'Ezer 7:16) states that when a Chalal marries a permissible woman, the child is a Chalal and so, too, the son of his son and so on are Chalalim forever.
2) The Shulchan Aruch there states that the daughter of a Chalal who married a permissible woman is forbidden to marry a Kohen, but if instead she married a Yisrael their daughter is allowed to marry a Kohen.
3)
(a) The baby born from the surrogate mother needs to be converted. Several leading Halachic authorities have discussed this question, including Rabbi Eliezer Yehudah Waldenberg zt'l in his Teshuvos, Tzitz Eliezer 19:40. One of the proofs that he cites to his ruling that the mother who bears and gives birth to the child is considered the Halachic mother is from Parshas Vayetzei. We learn that Leah gave birth to six sons from Yakov, and after this the verse (Bereshis 30:21) tells us that she gave birth to a girl and named her Dinah. The Targum Yonasan there relates that before Dinah was born, Leah prayed with a special request. She said that she now has given birth to half of the tribes destined to descend from Yakov. But she knew that she was now pregnant with a boy and Rachel was pregnant with a girl. If Rachel should give birth to this girl it would mean that she would bear less tribes than Bilhah and Zilpah, since the latter two both gave birth to two tribes. So Leah prayed that Rachel should not have less than Bilhah and Zilpah, and a miracle occurred; Yosef moved from the womb of Leah into the womb of Rachel, while Dinah moved from the womb of Rachel into the womb of Leah!
(b) We learn from this episode that it is the woman who gives birth to the child, not the woman who conceived him, who is considered the mother according to the Torah. Therefore, in our scenario, it is the surrogate mother who is the Halachic mother, so it follows that the baby must be converted.
(c) See Nishmas Avraham, by Professor Avraham Sofer Avraham (part 3, Even ha'Ezer, page 33) in the name of Rav Yosef Shalom Elyashiv zt'l, who also said that the baby needs to be converted. In addition, Nishmas Avraham (page 35) cites Rav Shlomo Zalman Auerbach zt'l who said that the baby needs to be converted.
4) Many Halachic authorities do not permit, in the first place, the use of a gestational mother to give birth to the child. Some of the reasons given are:
(a) It is very difficult to supervise and ensure that it is indeed only the sperm of the father that is being used.
(b) This process causes great confusion in society. The child often experiences trauma as a result of uncertainty with regard to who his real mother is.
(c) If the concept of "two mothers" becomes accepted, then it is only a small step to the acceptance of sperm from two fathers becoming a common occurrence. This puts in danger the entire idea of the Jewish family, which has been so precious in all generations.
As a result of the above concerns, the Poskim teach that it is always better to carry out a natural way of bringing children into this world.
Regards,
Dovid Bloom