The Right to Parenthood and the Best Interests of the Child: A Perspective on Surrogate Motherhood in Jewish and Israeli Law

תקציר

This article will address the attitude of Jewish and Israeli law with regard to the legal and moral issues raised by the practice of surrogate motherhood. At the outset, it should be emphasized that the term "surrogate mother" is a misnomer. As employed in legal literature, a surrogate mother is a woman who produces a child for a couple by becoming artificially impregnated, carrying the fetus to term, and surrendering all parental rights to the child upon birth. However, since she is actually the biological mother of the child, a more precise label would be "surrogate wife," because she performs the procreative function for the husband of the adoptive couple in the place of his legal wife. The change in terminology is not mere semantics, because it directs our attention to the fact that surrogate motherhood is not new to the 1980s, but instead existed as far back as biblical times. In that era, however, the surrogate mother was legally wed, prior to engaging in intimate relations, in addition to the sterile wife, unlike today's surrogate mothers whose contractual status is temporary, not sacred.