Judaism through 3rd Party Assisted Reproduction

It is well known that Judaism, and therefore, being Jewish, is passed through the mother. With the development of donor eggs as a means for creating a family, the arbiters of who is and who is not Jewish, the rabbis, have been forced to decide whether a child born of a Jewish woman using donor eggs of a non-Jewish egg donor can be considered Jewish under Halacha law.

Recently, a group of influential rabbis in Israel has decided that the donor must be Jewish for the children of her eggs to be considered Jewish.

What does this mean for Jewish couples struggling with infertility and ways to build their families while preserving their religious beliefs?

First, there is a very limited supply of Jewish egg donors. Women who are Jewish can command a substantial premium for their eggs, although generally reputable agencies that follow the American Society of Reproductive Medicine guidelines do not allow for much variation in pricing. Regardless, on the open market, an individual or couple can offer a higher sum for a Jewish egg donor who meets their additional criteria. Unfortunately, this has the effect of pricing some families out of the market, or forces them to wait for a donor who meets their criteria at an agency with a smaller pool to choose from. If a baby is produced from a “non-Jewish egg,” when it is old enough, he or she would have to undergo Orthodox conversion when reaching the age of bar mitzvah or bat mitzvah.

Second, for couples using a gestational surrogate, the surrogate may not need to be Jewish. For a good summary of the issues raised in Jewish surrogate motherhood, check here, at there The Women’s Health and Halacha Website. If this ruling from the Rabbis in Israel means the genetic mother is the halachic mother, it may be easier on some level for Jewish couples to locate an acceptable surrogate (countered by the increased difficulty of finding a Jewish egg donor if one is needed).

Cultural issues such as these are only some of the concerns raised by most intended parents. It is crucial that families looking to grow through gestational surrogacy or egg donation consult not only with their religious leaders, but also with a reputable attorney. An attorney can help you screen out fraudulent egg donors, or donors who are taking advantage of your religious convictions. Here at Family Formation Law Offices, we specialize in providing the highest level of professionalism and ethical representation to our clients. We encourage all individuals, couples and families look to grow or build their family to call today to arrange for your free consultation.

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Building Your Family – Gamete Donation

Gamete donation, the donation of male or female genetic material, is often used in third party reproduction. Typically the Donor wishes to donate his semen/sperm or her ova/ovum to the Intended Parents for their use in the conception of a child. Although there is a federal prohibition about selling body parts, I have not found a similar prohibition concerning the sale of genetic materials. Nonetheless, compensation for donors is for the inconvenience, discomfort, time and risk involved in retrieval of genetic materials. Donations of genetic material may be done anonymously (usually via an intermediary) or with full identifying information disclosed.

With donations of ovum or sperm (under a doctor’s supervision), there is always a written consent or contract which spells out the intention of the parties. Clinical transfers of the donated ovum, sperm or the resulting embryos will not be effected without a consent or contract, unless the sperm is transferred from a licensed tissue bank. CA Penal Code 367g speaks to gamete donation directly. Section (a) states, ” It shall be unlawful for anyone to knowingly use sperm, ova, or embryos in assisted reproduction technology for any purpose other than that indicated by the sperm, ova or embryo provider’s signature on a written consent form.” Section (b) states that “It shall be unlawful for anyone to knowingly implant sperm, ova, or embryos through the use of assisted reproduction technology into a recipient who is not the sperm, ova, or embryo provider, without the signed written consent of the sperm, ova or embryo provider and recipient.” And (c) of the statute, “Any person who violates this section shall be punished by imprisonment in the state prison for three, four, or five years, by a fine not to exceed fifty thousand dollars ($50,000.00) or by both that fine and imprisonment.” By the way, (d) reads “Written consent, for purposes of this section, shall not be required of men who donate sperm to a licensed tissue bank.”

Contract provisions usually include statements that the Donor does not intend to parent any child born of the donated genetic materials and understands and intends that the donation of ovum is a donation of genetic material only. Further recitations include that the Donor wishes no parental relationship or responsibility with respect to any child born of the donated material. Typically, medical costs of the retrieval procedure are borne by the Intended Parents and the Donor assumes all medical risks associated with the preparation and retrieval of genetic materials. The contract also speaks to custody of the resulting children indicating that the recipient of the donated material will take parental responsibility for any child conceived regardless of the child’s physical or mental condition.

Concerning the legal basis of the contract provisions speaking to parenthood and custody, California Family Code §7613(b) indicates that if the insemination will take place under a doctor’s supervision, and the recipient is not the Donor’s wife, the Donor has no parental rights or liabilities whatsoever in regard to the child. Under equal protection, the same argument applies to the donor of ova. Additionally, see Buzzanca v. Buzzanca. (1998) 61 Cal.App.4th 1410

Typically donors of ovum receive between $3500 to $7,500 for pain and suffering and the assumption of risk as this is an intrusive medical operation with extensive preparatory medications and testing. Donors of sperm receive nominal amounts for pain and suffering. Expenses incurred are extra.

Family Formation Law Offices provides cost-effective, flat fee reviews of contracts for ovum donation, regardless of whether the ova are donated for use in the intended mother’s uterus or in that of a surrogate. Our office is no longer accepting applications from potential egg donors, but for parents seeking to use an egg donor, we provide referrals to several reputable agencies who we have worked with in the past. We offer a free 15 minute phone consultation to discuss your legal needs. Call or email us today to arrange your appointment.

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