Bioethics, healthcare policy, and related issues.
Apparently feeling jealous that conservative Christians had gotten all the press for complicating assisted fertility technologies with their self-created moral quandaries, Orthodox Jews have now found some idiosyncratic anguish to call their own.
As the New York Times reports, some Jews are concerned that assisted reproduction involving donor eggs (either IVF, surrogate pregnancy, or intra-fallopian gamete transfer) would conflict with the “who is a Jew?” ruling that Jewish identity is transfered through the maternal line.
If the gestational mother is Jewish but the eggs are from a non-Jewish donor, is the kid a Jew or not? Likewise, if a Jewish woman donates eggs to a non-Jewish gestational mother, is that kid Jewish? (The latter is rare, because Jewish women tend not to be egg donors – thus increasing the likelihood of the former problem, where a Jewish woman seeks eggs but can only find a non-Jewish donor.) And, further, if a Jewish couple provides a fertilized egg for a surrogate pregnancy, because the Jewish woman cannot undergo gestation, and the surrogage mother is not Jewish, is that kid – born from an egg from a Jewish woman and raised in that woman’s Jewish household, but gestated by a non-Jew, one of the chosen people, or a wolf in sheep’s clothing?
One wants to be sympathetic, but it’s impossible not to notice that the entire problem is yet another instance of the naturalistic fallacy gumming up people’s insistence on reading the physical world through a religious lens. The question of Jewish status is obviously one of social categorizing. Even if we apply a strict criterion grounded on biological fact – descent through an unbroken maternal line – we are simply attaching that social category to that biological fact; there is nothing genetic about Jewish identity any more than there is something genetic about being a Republican, a Manchester United supporter, or a member of any other social group that tends to cluster by family membership.
When we add in the fact that Jewish identity can be divorced from biological descent – even by the most stringent definitions – we have a category that is only contingently, and to some degree randomly, tied to any biological process. All branches of Judaism allow for conversion both into and out of the faith (though the Orthodox branch discourages conversion in, they do recognize it). In all branches, then, there are some Jewish families whose line of descent truncates in the relatively recent past at a non-Jewish woman, and there are individual converted Jews who themselves have no line of maternal Jewish descent, but in both cases these people are fully Jewish. And, there are persons born into Jewish families with intact maternal lines who convert out, and are then no longer Jewish though their line of descent is as it was. Thus, though maternal descent is the traditional criterion for Jewish identity, it is neither necessary nor sufficient for being a Jew. Jewish identity most often correlates with, but is not synonymous with, biological identity; the fact that Jewish identity can be granted or revoked by entirely non-biological processes demonstrates that it is itself entirely non-biological in nature.
(Note that there are long-standing debates over whether Jews are a distinct “race”, which reference the frequency of certain phenotypes or genotypes among Jews. This has nothing to do with the discussion above. Aside from the vagueness of “race” as a biological category, this is a debate strictly focused on biological identity, not religious belief. Assuming that there is a “Jewish race”, one would then be or not be a member of it regardless of one’s religious belief. Racial Jews who converted to another religion would still be racial Jews, but not religious Jews; converted religious Jews who were not racial Jews would never become racial Jews, and their descendants would always retain some percentage of genes from outside the racial Jewish line. Also, racial Jewish identity, if it exists, passes through both the maternal and paternal lines equally; religious identity is understood not to. Clearly, the two notions are distinct, and it is the question of religious identity that is at issue in the assisted-fertility controversy.)
The confusion over Jewish identity, then, stems from treating a question of social identity as if it were entirely determined by biological facts – a straightforward example of the naturalistic fallacy (the idea that natural facts, by themselves, determine matters of morals or values). Asking whether “Jewish identity” descends with the egg or with the process of gestation is like asking whether being a Red Sox fan is determined by the egg or the uterus – it’s an idiotic question. Though the “maternal line” critierion is obviously prompted by concerns over genetic identity (it guarantees that, if the mother is Jewish, the child is descended from at least one Jewish parent, whereas a patrilineal criterion would not, since one is not always sure who the father of a baby is), and though at the time of its adoption there could not be any practical distinction between descent from a woman’s egg and descent through a woman’s uterus, today’s technology makes it clear how far social values, rather than biological facts, are bound up in the question. From a biological point of view, the answer is unambiguous: genetic relationship is carried entirely by the egg (although conditions during gestation do affect the development of the fetus, they do not change its genetic makeup or relationship of descent). If Jewish identity were syonymous with genetic identity, there would be no controversy over the issue. The fact that there is a question whether genetic relationship or gestation identifies the mother through whom descent is counted demonstrates that social values, not genetic facts, determine Jewish identity even when seemingly objective scientific facts, such as maternal relations, are adduced to decide the matter.
Since the question is entirely social, not scientific, and since the technological advances of assisted reproduction have divided egg donation and uterine gestation so that the social question is now muddied, the obvious solution is to simply designate one or the other as the kind of “motherhood” that determines the matrilineal criterion. The authorities could simply say that if you’re born of a Jewish mother you’re Jewish, and by “Jewish mother” we mean this – where “this” is either an egg source or the gestational mother. As long as it’s acknowledged that that choice is arbitrary, there’s no fallacy involved, and as long as it’s applied consistently there’s no problem determining who is a Jew. And that is what most people involved have done, as a matter of fact:
In Reform Judaism, the point is moot. “We determine who is Jewish much more by upbringing and commitment than by birth,” said Rabbi Harry Danziger, president of the Central Conference of American Rabbis. In 1983, with mixed marriages on the rise, the conference resolved that a child is presumed to be Jewish if one parent is Jewish, as long as the parents and child formally identify with Judaism.
Conservative Judaism clarified its position in 1997, when the Committee on Jewish Law and Standards of the Rabbinical Assembly took up the question of surrogacy. “The sole position is that the religious status of the child follows that of the gestational mother in cases involving surrogacy and in all other cases,” said Rabbi Joel Meyers, executive vice president of the Rabbinical Assembly. The assembly holds that children born to a non-Jewish surrogate would require conversion to be recognized as Jewish.
Reform Jews, recognizing rightly that the entire question is social, not scientific, leave it up to the individuals themselves to determine their identity. This seems both welcoming and level-headed. Conservative Jews have arbitrarily chosen uterine gestation rather than genetic descent as the determining factor, which again solves the problem unambiguously without resorting to fallacious thinking. (They also chose the category that includes the largest number of disputed cases, since surrogate motherhood is the least popular fertility option and the use of non-Jewish surrogates would be a subset only of that group. This minimizes the number of couples who have to be told “your baby is not really Jewish”. Add to this that their choice holds that the identity of the baby is determined by the process of gestation and birth – the most visually obvious link between the mother and child – and their resolution is probably more emotionally congenial than the alternative. In this way, they settled on a practical and politic resolution of the controversy, which makes sense but, interestingly, expressly denies that genetic relationship to the Jewish mother is any part of the criterion for Jewish identity.) Both these groups have solved the problem effectively and reasonably.
However, and predictably, the most conservative and traditional of the branches of Jewish belief has also come up with the most confused and convoluted resolution of the question of identity:
In the Orthodox tradition, rabbis are split on the subject. They look to Halachic sources — the Torah, Talmud and other Jewish texts — and come to different conclusions.
“It would seem from the Talmud that perhaps maternity is not just defined by the genetic gift, but by the nurturing process that happens within the fetal development,” Rabbi Brander said. “Others say no, it should be defined simply by the genetic gift.”
Adding to the complexity is the concern of some rabbis that the use of anonymous donors could lead to unwitting marriage between family members.
“Most Orthodox rabbis say using a Jewish donor egg is better, because then you don’t have to worry about whether the donor is Jewish or not,” said Rabbi Brander. “Some say you should use a non-Jewish donor’s egg, so there will never be a concern about this child marrying someone who might be related to them.”
The practical matter of inbreeding is a reasonable question (though in fact it carries little risk unless the practice is repeated for multiple generations in a given family). However, the reference to this issue as a deciding factor in determining parenthood also proves that the issue of maternal descent is not a biological one. (Inbreeding is a biological issue, but it is not identical to the biological issue of maternal descent. So citing the fear of inbreeding as grounds for defining “Jewish mother” to include non-genetically-related egg donors obviously concedes that the category “Jewish mother” is open to arbitrary redefinition – it is not merely a matter of scientific fact.) The notion of “nurturing process” is odd, also, because it seems to imply that both genetic relationship and this gestational nurturing are required to identify one person as another person’s mother. That is not problematic where the two are inseparable, as they are in non-assisted fertility. However, if they both are required to establish the maternal-fetal line of descent, then that suggests that babies born from donor eggs, in which no individual woman supplies both the genetic material and the gestational nurturance, have no mothers at all. That seems obviously to be a non-starter; the fact that some Orthodox rabbis apparently favor it only underscores that their definition of motherhood is divorced from the biological reality of assisted fertility. The article goes on to note that some Orthodox rabbies routinely perform infant conversion on babies born from eggs of non-Jewish donors, “just in case” – which bespeaks a commendably practical attitude, and also a degree of lingering confusion over their own definitions of identity and motherhood.
What I take from all this is the observation that none of these problems would exist if the definition of Jewish identity had originally been recognized as one of social categorization and not biological fact. To their credit, the early Jews hit upon a criterion of identity that was, at that time, unambiguous, avoided the obvious problems of paternal uncertainty, and offered a perfect correlation between biological descent and social-group membership. It was not until the development of highly artificial technologies that divorced genetic descent from maternal gestation, in just the last few decades, that the inherent arbitrariness of their definition became recognizable in other than a hypothetical sense, let alone a practical problem. So the matrilineal descent criterion for social identity stood the test of time for several thousand years – a vastly better record than any of the Catholic church’s similar forays into reproductive fallacies (most of which were dead on arrival), it should be noted. But the angst exhibited over this question arises only because of the persistence of a vision of a group of people as historically distinct – separate, unique, and self-perpetuating – in ways that no group is, in fact. The reliance on biological criteria for membership in a group defined by religious belief, marriage, and conversions of faith obviously cannot withstand scrutiny. If by luck that scrutiny could be avoided until technology had far advanced, that makes the underlying beliefs no more valid than otherwise. The naturalistic fallacy undermines any and every blurring of human and natural distinctions, and “Jewish identity” is no exception.
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