A Fertile Controversy

Jerusalem — All they ever wanted was a child. For a decade the observant couple, who live on a moshav in the north, had been trying to have a baby, only to have their hopes dashed time after time. The wife, who could not conceive naturally, underwent numerous in-vitro fertilization treatments. Even when these proved successful, she suffered eight miscarriages due to an immunological disorder that caused her body to reject the fetuses.

Desperate, the couple went in search of a woman who could bear them a child.

Taking advantage of Israel’s surrogacy law, which was enacted in March 1996, the couple — who cannot be identified for legal reasons — advertised for a surrogate mother. Ultimately they chose a 30-year-old single mother of a young boy, also a resident of the north. She needed money. And she had a fertile womb.

Last month the woman gave the infertile couple the gift of life — twice — as she delivered healthy twins, first a boy, then his sister at the Rambam Hospital in Haifa. But before they could take home their bundles of joy, the couple found themselves in the middle of a heated national debate over Israel’s first case of surrogate motherhood.

While the case has given new hope to thousands of infertile couples, it has angered women’s rights advocates opposed to what they regard as “womb-for-hire” arrangements.

“We were against the law before it was passed, and now that surrogate children have actually been born, we’re even more against it,” said Rivka Meller-Olshitzky, chairwoman of the Israel Women’s Network.

Calling surrogacy an “inhumane” procedure, Meller-Olshitzky said that Israel’s first-ever case only proves the point.

“The results have been awful, both physically and emotionally,” she said. “The surrogate was under terrible stress and at times wanted to have an abortion. The pregnancy itself wasn’t easy, and she had to have a ceasarian section. Her body was prepared for motherhood, but instead of being a mother her children were taken away.”

Equally disturbing, Meller-Olshitzky said, was the biological parents’ insistence that the surrogate lead a particular lifestyle.

“We understand that the couple tried to limit her freedom to move around, to do what she wanted to do,” she said. “In our view this is a form of slavery using the most modern technology. This isn’t progress.”

According to media reports, the couple were overprotective of the surrogate, asking that she refrain from using public transportation or from engaging in many other activities in the fear that it would over-exert her. The surrogate, according to a TV special on the subject that aired Sunday night, lived with couple on their moshav for the first eight months of her pregnancy but left in disgust just before giving birth.

To date, the couple have been unable to share their side of the story because the surrogacy law prohibits any publicity. They reportedly have petitioned an Israeli court to free them from this constraint.

Dr. Josef Itskovitz, who heads the Rambam Hospital surrogacy program, told The Jewish Week that the twins’ birth was “very emotional.” He confirmed that the surrogate asked that the babies be whisked away from the delivery room, and that some members of the medical team wept when the infants were separated from their “birth” mother.

Etti Pilpel, legal adviser of the Na’amat women’s organization, is fearful that “surrogate mothers in Israel will be used as hired wombs. It’s still too early to know what the psychological damage will be to the surrogate mother and her other child. Hopefully, it will be minimal.”

Although Na’amat, like the Women’s Network, lobbied against the proposed surrogacy law when it was being considered by the Knesset, Pilpel said the organization is now taking a “wait-and-see” attitude.

“We’re waiting to hear the results from a few cases so that we can evaluate them. It’s too early to draw conclusions,” she said. Pilpel noted, however, that it isn’t too early to learn from this historic case.

“I hope that other [potential] surrogate mothers will benefit from this experience and realize that it wasn’t as easy as some people had predicted. You have to give birth, then give up your child. It’s very, very complicated,” she said.

Pilpel expressed special concern for the surrogate’s child, whose age is unknown. “For months this child saw his mother’s belly growing larger, preparing to give birth. Then, all of a sudden, there’s no baby. The child wants to know what happened to the baby, and becomes frightened for himself. If his mother could give away that baby, he thinks, perhaps she will get rid of him, too. Paid psychological counseling for the mother and child must be mandatory.”

Eliezer Jaffe, a professor at the Hebrew University School of Social Work, said he understands these concerns but that they are largely unfounded. Jaffe, an expert in overseas adoptions, said that “while there is always the potential for misuse,” Israel’s “excellent” surrogacy law was designed to prevent this.

“In most other countries when a couple contract with a surrogate, they do so privately and there’s no legal scrutiny. In Israel, the procedure must first be approved by a [government] commitee. There’s a lot of supervision,” he said.

Indeed, the surrogacy law sets forth very strict guidelines: Prior to striking a deal, the biological parents and the surrogate must plead their case before the Ministry of Health’s surrogacy committee, which is comprised of gynecologists, a pyschologist, social worker and clergy member.

At that time, the surrogate mother must prove that she is not a first-degree relative of the biological couple, to prevent any possibility of incest according to halacha, or Jewish law. By the same token, the surrogate cannot be married, to prevent the possibility that her child could be considered a mamzer. The product of a relationship between a married woman and a man who is not her husband, a mamzer is banned from many aspects of Jewish communal life, including marriage to a Jew.

How much the biological parents can pay the surrogate is limited to “living expenses.” These include health insurance, the surrogate’s legal fees and compensation for “loss of time and suffering” during pregnancy. Although no sums are actually mentioned in the law, a member of the surrogacy committee said the accepted limit would be $25,000.

Meller-Olshitzky of the Women’s Network dubbed this sum insufficient.

“If a woman becomes a surrogate, and we hope she won’t, she’s entitled to be paid as if she were working 24 hours a day for nine months. Being pregnant is not a part-time job,” she said.

Still others, including Itskovitz of Rambam Hospital, fear that the couples and surrogate might try to circumvent the “living expenses” clause in other ways.

Although he is a staunch advocate of surrogate motherhood, Itskovitz said he “was a little upset” that the couple with the new twins appear to want to cash in on their newfound fame.

Itskovitz said that a film company had made a film about the couple’s experiences, with the consent of the couple and the surrogate, but that the film cannot be broadcast unless the court allows them and the surrogate to be identified. The couple and the surrogate would then receive payment, he said.

“Money should not be an issue in this situation because it only complicates things,” he said.

While everyone in Israel seems to have an opinion on the subject, the chief rabbinate has remained silent.

Dr. Mordechai Halperin, a physician and rabbi who sits on the Health Ministry’s surrogacy committee, said the rabbinate has made “no official halachic ruling” on whether surrogacy is permitted under Jewish law, though Ashkenazic Chief Rabbi Yisrael Meir Lau appeared on the TV special saying he believed surrogacy posed no halachic problem.

“At the time that the law was being drafted, several Knesset members asked [Sephardic] Chief Rabbi Bakshi-Doron for advice,” said Halperin. “Some of those demands, such as the fact that the mother must be single and not a first-degree relative, are in the law.”

Halperin noted that the issue of surrogacy has been tackled by two renowned rabbis: Shlomo Zalman Orbach and his son-in-law, Zalman Nechemia Goldberg.

“Rav Goldberg wrote an article stating that he could envision a situation in which there would be severe halachic problems, but that if surrogacy was supervised correctly by the chief rabbinate, it might be permitted. Rav Orbach wrote that practically speaking, surrogacy can cause problems, and that therefore it should not be done. He didn’t say that it was prohibited according to halacha.”

Despite the inherent dangers of surrogacy, Eliezer Jaffe believes it “is worth the risk.” There are, he said, “some very good [women] out there who have a great deal of altruism. Sure you hear horror stories, but there are many surrogacy success stories. But only the horror stories are publicized.”

Stressing that there are almost no adoptable infants in Israel, and the fact that many Israeli couples cannot afford the exorbitant adoption fees charged abroad, he said, “There are women who can’t give birth, but who can produce eggs while their husbands can produce sperm which are later fertilized. Surrogacy gives them the opportunity to have their own children.”

Meller-Olshitzky acknowledges their plight, but says that she and others will soon launch a public campaign to revoke the surrogacy law.

“I understand the couples’ suffering,” she said, “but can’t see in my mind how their suffering will end by inflicting suffering on others.”