CHAPTER ONE

Defining Parenthood Before and After Assisted Reproductive Technologies

Philosophers of family and bioethicists propose that the status, rights, and obligations of parenthood may attach based on one or more of the following grounds: genetic, gestational, labor-based, intentional, voluntarist, beneficent, and causal conceptions (Brake and Millum 2014, 26-32). They ask: in light of new assisted reproductive technologies (ART), how does society rethink its definitions of parenthood?13 _{What are the bases and boundaries of reproductive obligations and}

freedoms? What substantive differences exist between natural and artificial reproduction? What are the connections and constraints between sex, procreation, and marriage? What personal, psychological, social, and societal implications pertain? And, perhaps, most importantly, what judgments and outcomes are in the best interests of the child?14 _For

theologians and religious bioethicists, they add: Does sacred scripture or religious tradition identify parental grounds? If so, are they of divine command or communal convention?15

13 _{Brake and Millum 2014, 1, 22, credit both changing family structures and demographics, in part born of}

the development and proliferation of ART, as creating a need to interrogate ethical, legal, and public policy questions concerning parenthood and procreation. See Weiler 1996, who charts philosophical

transformations and societal changes regarding conceptions of parenthood through the psychological and sociological processes of “differentiation, abstraction, and nihilization.”

14 _{See Archard and Benatar 2010; Brake and Millum 2014; Hull 2005a.}

15 _{For an overview of the philosophy of family, see O’Neill and Ruddick 1979; Blustein 1982; Richards}

Before Assisted Reproductive Technologies

Before the advent of ART, there were two primary paradigms of parenthood: natural parenthood and adoption.16 _{Within natural parenthood, paternity and maternity are}

respectively defined by a man, i.e., the father, whose seed inseminated a woman through sexual intercourse, i.e., the mother, who in turn conceived, gestated, and gave birth to the child. In other words, natural procreation begot natural parenthood. Before ART and maternal genetic identity testing, while it was possible for a natural mother to abandon or be compelled to relinquish her child, at least at the time of birth the identity of the natural mother was clear. On the other hand, before paternal genetic identity testing, i.e. paternity tests, it was possible for the natural father to be unidentifiable, such as in a case of rape, consensual casual intercourse with an unfamiliar partner, or within a context of a woman having multiple male sexual partners.17 _{Even within a stable marital relationship, before}

genetic identity testing, fatherhood is assigned either by maternal assertion and/or

16 _{The use of the modifier “natural” to describe a kind of parenthood requires a defending explanation since}

the claim of “natural” is often considered suspect by sociologists and philosophers, see Bird and Tobin 2017. Calling something a natural kind indicates that its categorization corresponds to the structure of the natural world, and is not merely a social construct based on human action and intention. It is not self- evident that human fatherhood and motherhood fully meets this criterion. However, “biological” doesn’t fare much better since it also may describe parenthood achieved through ART. See also LaPorte 2003.

17 _{In Jewish law, a child of unknown paternal parentage is known as a “shetuki,” literally, “undisclosed,”}

and has the legal status of a “doubtful bastard.” A “mamzer,” bastard, is prohibited by halakhah from marrying and/or procreating with a non-bastard. Since bastardy is a heritable legal status, halakhah also proscribes a “doubtful bastard” from marrying either a known bastard – in case he is, in truth, not a bastard, as well as a non-bastard – in case he is, in truth, a bastard. See Schereschewsky 1995c, 435-7. Also see Laufer-Ukeles 2014, who argues for greater regulation of ART under the “best interest of children” standard, using the State of Israel as her principal example in which unregulated use of ART can affect the child’s Jewish and civil legal status, including marriageability, due to the state’s privileging of Jewish law in matters of family law.

through marital presumption rather than certain knowledge.18 _{Evolutionary theorists and}

sociobiologists analyze the cost and benefits of such ambiguous paternity.19

Before ART, therefore, every child has but one natural father and one natural mother. It should be noted, however, that some world cultures expand upon these two primary paradigms and uphold beliefs in partible paternity and maternity. For example, many indigenous South American societies espouse a concept of partible paternity, assigning a primary status of paternity to the man who through sexual intercourse first inseminates a woman post-menstruation, but also accredit to the pregnant woman’s other subsequent sexual partners the status of secondary fatherhood (Beckerman and Valentine 2002, 4). This multiple paternity concept theorizes that each sexual partner contributes to a critical mass of semen, called in some cultures “white blood” or “milk,” necessary for the healthy development of the fetus. Similarly, partible maternity privileges the birth mother as primary, but recognizes other women who breastfeed the child as secondary mothers. This multiple maternity concept, like that of multiple paternity, theorizes that both gestation and nursing convey needed mother’s blood to the developing fetus and child through the umbilical cord and breast milk, respectively (Just and Monaghan 2000, 85-6). While these cultures value collective parenting, sibling kinship over marital bonds, and non-androcentric authority structures, the underlying idea of partible parenthood within these cultures is that each biological contributor to the development of the fetus

18 _{See Caro, Shulkhan Arukh, Even Ha’ezer 4:26, who says that even in a known case of an adulterous wife,}

absent clear paternal determination, we credit paternity to the husband since quantitatively the majority of sexual relations are presumed to have taken place between husband and wife.

and viability of the child earns through his or her causal contribution a parental status (Beckerman and Valentine 2002, 4).20

Judaism preferentially locates procreation within a sanctified monogamous marital relationship,21 _{prohibits sexual relations out of wedlock,}22 _{and stigmatizes}

children born of adulterous or incestuous sexual encounters23 _{(Barilan 2014, 124).}

However, in a few instances, Jewish lore recognizes the idea of partible paternity and maternity, making ready modern Jewish halakhic and bioethical consideration of partible parenthood in cases of collaborative reproduction through ART. Consider the story of Goliath, the giant Philistine warrior, who David, as a diminutive youth and not yet king of Israel, felled with a slingshot. The Bible calls Goliath in Hebrew “ish habeinayim,” literally rendered as “man of the in-between” (Samuel I, 17:4), the exact meaning of which is uncertain,24 _{but which the Babylonian Talmud (TB Sota 42b) understands as}

referring to the notion that Goliath’s extraordinary physical prowess was due to having multiple biological fathers. Goliath’s mother, who the rabbis identify as Orpah the Moabite, sister of Ruth and daughter-in-law of Naomi,25 _{sometime after her return to her}

20 _{Beckerman and Valentine 2002, 3 ff., argue that their findings regarding partible paternity challenge the}

“standard model of human evolution,” which posits that monogamy increases male confidence in paternity, thereby favoring paternal investment, i.e. providing food and shelter, to a woman and her child, who the male presumes is his own. For a review of the “standard model,” see Pinker 1997, 488-90; Wilson 1998, 170.

21 _{See Shulkhan Arukh, Even Ha’ezer 1:1, “Every man is obligated to marry a woman in order to}

procreate.” For a contemporary discussion of these values, see Blau 2007.

22 _{See Maimonides, Mishneh Torah, “Laws of Forbidden Sexual Intercourse,” chapter 22; cf. Dorff 2013b.} 23 _{See Shulkhan Arukh, Even Ha’ezer 4:13, “Who is a bastard? [A child of one] who has sexual relations}

with one of the [biblically forbidden] illicit unions...” Children born out of wedlock, however much discouraged, do not carry the stigma of bastardy.

24 _{See Stein ed. 2003, 607, whose Jewish Publication Society Hebrew-English TaNaKh (Hebrew Bible)}

tentatively translates the phrase as “the man of spaces between.”

family in Moab had sexual relations with numerous male partners on the night of

Goliath’s conception: “What is the meaning of ‘beinayim’? … Rabbi Yochanan said, ‘He was the son of a hundred fathers and one mother.’” (Bleich 2015a, 66-7; Lichtenstein 2014a; Loike and Tendler 2014a, 57n40).26 _{Despite such extraordinary accounts in}

Jewish lore, before ART, the primary paradigm of natural parenthood, and the only one recognized by Jewish law, assumed a unique biological mother and a unique biological father.

The second primary paradigm of parenthood before ART was neither natural nor biological, but social and legal – namely, adoption. In adoption, the government, often through court decree, artificially creates a legal relationship between a child and his or her adoptive parent(s) akin to that of natural parents and child, as well as severs the rights and responsibilities pertaining to the child’s natural parents. Adoption is an ancient institution, whose earliest written reference appears in the Babylonian Code of Hammurabi and was regulated in the Ancient Near East, as well as in Greco-Roman civilization. Indeed, in Ancient Rome, adoption was understood as a legal change in parenthood (Huard 1956). However, in modern western civilization, until the mid-

nineteenth century in the United States, and the 1920s in England, adoption was more the provenance of common law and informal arrangement than judicially regulated custody

26 _{Rashi, ad loc., s.v. “Bar Meah,” denies the possibility of multiple fathers and understands the talmudic}

passage as identifying Goliath as being of obscure paternity: “one was his father, the rest adulterers.” Tosafot, ad loc., s.v. “Meah,” however, entertain the idea that the sperm of multiple men can contribute to a single pregnancy. This is different than the question of superfetation, i.e., a woman’s multiple ova can be impregnated by different male sexual partners, either in the case of twins, see Mueller 2015, or months apart within a single state of pregnancy, and see Reichman 2009.

assignments and legally created and recognized kinship relationships.27 _{Motivation for}

adoption has also changed. While there has always been a societal need to care for orphaned children, in the twentieth century, new emphasis was placed on the desire to enable both parentless children and childless couples to experience and enjoy a complete family life (Broyde 1988).

Jewish law, however, has never recognized formal adoption as having the legal power to create new kinship relationships that confer upon adoptive parents a halakhic status akin to natural parenthood. Instead, the Talmud recognizes adoption as an act of righteousness and kindness, i.e., tzedakah and chesed, referring to an adoptive parent as “one who raises another’s child” (Broyde 1988, 2005a; Schereschewsky 1995a). Jewish religious culture primarily uses patronyms, though sometimes matronyms, in its

conventional naming practices, such as in the ritual context of being called to the public reading of the Torah, or for documentary purposes, e.g., a ketubah, marriage contract, or a get, divorce decree.28 _{In the case of an adopted child, halakhists recommend qualifying}

the use of the adoptive patronyms and matronyms with the phrase “hamegadelo – who raised him,” as in, for example, “Isaac the son of Abraham who raised him” (Schachter 1982, 104 ff.). An adopted child cannot share in the lineage distinctions of his or her adoptive parents. Thus, adopted children born to a non-Jewish natural mother require

27 _{Massachusetts passed the first American adoption law in 1851; Britain in 1926. See Herman 2008 who}

charts changes in adoption culture in the United States over the first seventy-five years of the twentieth century through the stages of regulation, interpretation, standardization, and naturalization. See Keating 2008, 113 ff., for the modern history of adoption in England, especially regarding the Adoption of Children Act of 1926.

28 _{Jewish law differentiates between documents that serve as evidence, such as a ketubah (marriage}

contract), and documents whose execution effectuates a legal result, such as a get (Jewish divorce). See Broyde 2001, 1-25.

conversion. Likewise, if the adoptive father is of priestly or levitical lineage, i.e., kohen or levi, such familial status, with its attendant rights and responsibilities, cannot be conferred upon an adopted child (Schachter 1982, 95, 98-104; Gold 1997). Similarly, an adopted child has no natural inheritance rights, though, an adoptive parent may choose to will assets and possessions to such a child, as is indeed his or her prerogative toward any non-relative.29

Perhaps the starkest representation of the lack of natural relationship between an adopted child and his or her adoptive family can be seen in Jewish marriage law. Adopted children raised in the same home may marry each other, or may marry the natural

children of their adoptive parents, i.e., adopted siblings, since there is no natural

relationship. Incestuous relations are limited to natural relatives.30 _{Similarly, the question}

arises as to whether in an adoptive context hilkhot yichud obtain, i.e., the Jewish laws regulating seclusion of two unmarried individuals of opposite genders who are not immediate relatives.31 _{Some halakhists apply formal standards of seclusion laws}

independent of social context, and thus prohibit an adoptive parent and adopted child of

29 _{Some halakhists view adoption through a civil court decree as determinative of legal intent, and thus}

legitimate a legal presumption that adoptive parents intend to treat an adopted child as a natural child for purposes of inheritance, see Schachter 1982, 95.

30 _{See TB Sota 43b; Caro, Shulkhan Arukh, Evan Ha’ezer 15:11. Even adoptive parental custody cannot}

create an incest prohibition of biblical force between an adoptive parent and adopted child, though other concerns of abuse may pertain, and such unions may still be rabbinically proscribed, see Broyde 1988, 147. Cf. TB Megillah 13a, where the Talmud cites the teaching of Rabbi Meir regarding Esther 2:7, “‘[He (Mordecai) was foster father to Hadassah – that is, Esther – his uncle’s daughter, for she had neither father nor mother. The maiden was shapely and beautiful; and when her father and mother died, Mordecai adopted her] as his own daughter’ – read not as his own daughter, but as his own household, i.e., as his wife.” Such a reading speaks to the varied ways in which orphaned children were cared for in the ancient world, as well as exponentially increases the level of intrigue underlying the biblical book of Esther’s dramatic narrative.

opposite genders to be secluded absent the presence of the other adoptive parent, arguably creating a logistically difficult and psychologically unhealthy living situation. While other halakhists, taking note of the permissive and positive judgments of biblical and rabbinic examples of adoptive relationships, contextualize the laws of seclusion as not applying to adoptive parent-child relationships (Berzon 1987, 107-12). Similarly, the laws of mourning, such as the liturgical recitation of the mourner’s Kaddish, being primarily of rabbinic legislation, may be assumed by an adopted child qua the parents who raise him or her, while they are not imposed upon an adopted child toward his or her natural parents (Schachter 1982, 94-5; Broyde 1988, 148-9; 2005, 142-5; Wolowelsky 2001).32

Thus, while Jewish law does not confer legal parenthood upon adoptive parents, it will treat social parents, at times, but not comprehensively so, akin to natural parents. This is because while Jewish law does not principally recognize adoptive parents as legal parents, it does recognize them as moral and spiritual parents. Consider the below

talmudic passage whose intent is to impress a moral and spiritual judgment, rather than legal assertion:33

Whoever raises an orphan in his home, Scripture accounts it is as if he gave birth to the child. Rabbi Chanina learns [the above lesson] from here: “And the women neighbors gave him a name saying, ‘A son is born to Naomi’” (Ruth 4:17). But was it Naomi who gave birth? Didn’t Ruth give birth? Rather, Ruth bore him and Naomi raised him. Therefore, he is identified as Naomi’s child. Rabbi Yochanan says from here: “And his Judahite wife bore Jered, father of Gedor; Heber, father of Soco; Jekutiel, father of Zanoah. There were the sons of Bithiah, daughter of

32 _{See Lamm 2000, 216-7, who categorizes adopted children mourning “those who have taken them in and}

cared for them” as “discretionary mourners.”

33 _{For an overview of the literary sources of Jewish law, see Chapter Two, “Process and Methodologies of}

Halakhah,” p. 89 ff. For their method of citation and abbreviation, and sources of translation, see References.

Pharaoh, whom Mered married” (I Chronicles 4:18).34 _{But did Bithiah bear}

Moses? Didn’t Jocheved give birth to Moses?! Rather, Jocheved bore him, but Bithiah raised him. Therefore, Moses was identified as her child. (TB Sanhedrin 19b)

The Talmud then extends further the scope of moral and spiritual parenthood to even those who provide for physical sustenance of others, beyond parental-surrogate nurturing and rearing:

Rabbi Elazar learns it from here: “By Your arm You redeemed Your people, the children of Jacob and Joseph” (Psalms 77:16). Now, did Joseph father [the twelve tribes]? Didn’t Jacob father them?! Rather, Jacob fathered them, but Joseph supported and sustained them. Therefore, they [i.e., the twelve tribes] are called by his name. (ibid.)

Finally, the Talmud then assigns moral and spiritual parenthood to educators who teach a child Torah.

Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan: Whoever teaches Torah to his fellow’s child, Scripture accounts him as the child’s parent. As it is said, “This is the lineage of Aaron and Moses at the time that the Lord spoke with Moses on Mount Sinai” (Number 3:1). But in the very next verse it says, “These were the names of Aaron’s sons...” (3:2). [The intent of the Torah here is] to say to you that Aaron fathered and Moses taught them, and therefore they are [also] called by his name. (ibid.).

This superlative evaluation of raising another’s child as a form of moral and spiritual parenthood is indeed practically reflected in natural parent-like obligations of support, care, and governance toward the child, and in reciprocal duties of honor by the child toward his or her adoptive parents in life and thereafter.35 _{However, the legal mechanism}

underlying these duties and obligations stem not from a legal status akin to natural

34 _{The Rabbis interpreted “Jered,” “Heber,” and “Jekutiel” all as alternate names of Moses, and Bithiah, the}

daughter of Pharaoh, is the Egyptian princess that pulled Moses from the reeds of the Nile.

parenthood, but from the consequences of other legal principles and institutions. Thus, the adoptive parent who raises another’s child is viewed in Jewish law, alternatively: one, as an agent of the natural parents who is empowered to fulfill in their stead their duties toward the child (Broyde 1988, 147); two, as an appointed, or de facto, legal guardian, i.e. apotropos, of the child, who is duty-bound to care for the child’s lodging, sustenance, and education, as well as to serve as a trustee for any property belonging to the child (Schereschwersky 1995a, 442; 1995b); three, as a person bound by a promise or oath to provide for the welfare of the child, as if it were his or her own (Silverstein 1974). Thus, as opposed to American law, for example, Jewish law does not fundamentally recognize the authority or power of a governmental agency or court to sever or destroy the bonds of natural parenthood, or conversely to create for adoptive parents a full legal status equal to that of natural parenthood (Broyde 1988, 149-52). Interestingly, in the modern State of Israel, in keeping with contemporary international legal conventions of adoption, the 1960 Adoption of Children Law empowers district courts, and with consent of all interested parties, state-recognized rabbinical courts, to sever pre-existing ties between a child and his or her natural parents, and create new familial ties with adoptive parents