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Abortion in surrogacy


Rabbi Ari Shvat

Elul 18, 5777
What ethical and Judaical conflicts arise in the case of an intentionally discontinued birth of a surrogate pregnancy? Mainly, what are the ethical issues surrounding if the gestational mother wanted to abort the baby as she changed her mind? Or if she intentionally aborted the baby to exploit her employers for monetary gain? (This is a question unrelated to the subject but what is Judaism’s take on placing a price on life and babies?) Lastly, what if a couple wanted to discontinue a birth after the gestational mother had already been inseminated? What is Halachically acceptable for this situation?
a. Aborting any fetus by a Jew isn’t considered murder m’d’oraita (Shmot 21, 22, but by a non-Jewish doctor and/or patient is a Torah transgression- yes it’s more serious for a gentile, for they only have 7 mitzvot but those few are extremely serious), but is almost always prohibited for a Jew as well, by an ancient rabbinic decree, unless it endangers the mother’s life or in specific unique cases. The issue isn’t only between the gestating woman and the couple, but also between her and the fetus, and between her and God, and if she aborts, in addition to doing tshuva, she must compensate for the mental anguish and economic investments and loss of the couple. b. There obviously can be no price on life and babies (for they have a Spark of God), nevertheless, we are happy to utilize modern science to enable barren couples to have the joy of conceiving and the Godly pleasure of “creating worlds”= “Pru u’rvu”. Nevertheless, the pain and difficulty of the surrogate mother definitely deserves to be rewarded, for if not, very few would be willing to undergo the difficulties of pregnancy. It’s a pretty big “favor” to ask someone to volunteer! c. A couple should not enter into this surrogate arrangement unless they are 100% positive they’ll go through with it, and otherwise, it’s very irresponsible on all accounts. As above, it is usually forbidden to abort a fetus, a future Spark of God, unless it’s within the first 40 days of conception. Afterwards, a world-wide halachic authority must be consulted, and in general, the answer would be to put the child up for adoption, and the couple would have to pay everything as originally agreed, plus possibly also anguish, etc.
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