At the Sheba Tel Hashomer Medical Center, the baby was born today (Wednesday) at noon from the embryo exchange failure in Assuta Rishon Lezion. The pregnant mother who gave birth to her by caesarean section demands to raise her and have her at her disposal, while at the same time, in the fertility unit, attempts are being made to understand who are the genetic mother and father of the fetus that was mistakenly inserted into another woman’s womb. In an unusual halachic ruling, based on the ruling in Hebrew law and on an issue that has never been on the agenda until now, the rabbis and experts of the Poa Institute for Fertility and Medical Halacha state that the baby belongs to the father and the mother whose womb came out into the world and which she carried in her womb for nine months.
In a public halachic opinion published by the institute’s rabbis last month, it was determined that the baby, after being born, should be handed over to her genetic parents and the pregnant woman should be compensated. This ruling was based on the assessment that the identity of the biological parents was known, but as I recall, the genetic test conducted and published this week revealed that the couple considered to be the genetic parents are not the baby’s parents, they state that efforts to look for them should not be continued. “Since there is a woman who is certainly carrying the child in her womb, and she is also interested in giving birth to him and raising him, she should be allowed to raise the child and not investigate at the moment who the genetic parents are.” It was written in the opinion at the institute headed by Rabbi Menachem Burstein, an expert in fertility.
In the explanation of the ruling, it is stated that “since in the face of this certainty we have a doubt as to who the genetic parents are, and it is also not clear that we will have the opportunity to clarify this doubt (since in order to clarify the doubt we must genetically test all possible parents, and who guarantees us that everyone will be interested in this test in order to know that their embryo is genetically theirs, and then start conducting a long legal battle over its upbringing, and that they are not at all interested in raising a child born in this way), and therefore as we said earlier: “There is no doubt that leads to certainty”, but here the doubt and the certainty are reversed, and in any case it is better not to do Nothing more and let the birth mother raise the child according to the rulings that she is indeed his mother.”
Rabbi Burstein explains that “the last time we addressed the question, we started from the assumption that the identity of the genetic parents is known. We wrote that there is a dispute in Halacha as to who is considered the mother – the pregnant woman or the genetic mother, and therefore we decided that since there is doubt as to who the mother is, while the father from a halachic point of view is certainly the genetic father ( the spouse of the genetic mother), in any case, one should go after the only certain factor – the identity of the father, and give the child to the genetic parents. However, as of now, the genetic test has revealed that those who were most likely considered to be the genetic parents – are not, and the identity of the genetic parents has not yet been determined. The question arises whether in the situation It is incumbent upon us to look for the genetic parents in order to give them the child or it is better to sit back and not do it.”
However, the Pua Institute disagrees and points out that “it seems that it is simply our duty to know who the genetic parents are (and at the very least who the genetic father is), this is to prevent in the future the fear of consanguineous marriages (a brother will marry his sister from his father, since he does not know who his father is and does not know who his daughters are anyway ).However, at the moment we are not dealing with the prohibition questions, but with the legal questions – who has the right to raise the child.”
In the halachic ruling, the proposal was also made to locate the biological parents and allow them to raise the baby in joint custody. “In our opinion, such an option does not take into account the good of the child who will grow up stably, and will not divide his time between two different families. From Solomon’s sentence at the beginning of the Book of Kings, we see that the option of division is not a good option,” the Pua Institute clarifies.