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.
12 Responses to “Do You Invite the Egg Donor to the Bris?”
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July 4th, 2006 at 8:41 AM
But being a Jew is not, for the purposes of this discussion, like being a Red Sox fan.
Imagine a country whose constitution dictated that anyone whose mother was a citizen was also a citizen by right. Imagine that a child discovered that although his birth mother was not a citizen of that country, the woman who provided the donor egg by which he was conceived was a citizen of that country, and asked that he be granted citizenship on that basis. Should his request be granted?
It depends, of course. It depends on what the word “mother” means. Specifically, it depends on what the word “mother” means in the context of this particular country’s constitution. And you would expect that different legal scholars might well answer the question in different ways.
Isn’t this a better analogy than the Red Sox one? Whether someone is Jewish according to Jewish law is a question that has practical consequences. And it seems to me that you can only say that the question at hand is “idiotic” if you are prepared to say that the question “who is a Jew” is itself an idiotic one.
July 4th, 2006 at 4:42 PM
Being a Jew is like being a Red Sox fan in that it is commonly “inherited” by way of membership in families strongly committed to that identity – but can be changed at will, in a way true genetic inheritance cannot be. It is a social fact that happens to parallel, to a limited degree, biological facts – but to attempt to define it in terms of biological inheritance is a gross blunder.
The citizenship analogy is, I suppose, better than the Red Sox one in that it’s not an analogy – it’s virtually identical to the Jewish identity question, so of course it harbors the same ambiguities. The purpose of an analogy is to translate a difficult question into correllative, but less ambiguous, terms, so that one can see the ambiguities more clearly.
My post is not really about Jewish identity; it’s about the tendency of religious conservatives to believe they can read moral or religious certainties off of “obvious” facts of nature. Jews are much less guilty of this than Christians, so it was interesting to me to find a Jewish example – and I pointed out that even so their resolution of their problem was much more robust than in many Christian cases.
But, even if only in ways that early Jews could never have foreseen, “maternal descent” as a determinant of Jewishness is an illusory fact – the arbitrariness of which is now becoming apparent. That determination can only be made in an arbitrary way – as two of the three major branches of Judaism have done with perfect success. And since the arbitrariness of maternal descent is now apparent, attempting to determine maternal descent in a non-arbitrary way, now, is like attempting to discern someone’s allegiance to the Red Sox through DNA studies.
Perhaps I didn’t make this clear enough, but what I regard as “idiotic” is not the attempt to define Jewish identity, and not the attempt to arrive at a revised definition of “mother” to preserve the practicability of the traditional definition of Jewish identity. What is idiotic is to continue to insist that this question has a non-arbitrary resolution, and to debate the factual accuracy of one or another such definition as if it were not arbitrary. This, apparently, is what some Orthodox scholars are doing: debating the scientific facts of descent by egg or by gestation while at the same time introducing wholly unrelated issues such as the likelihood of incest – without at any point acknowledging that there is no scientific resolution of their concerns, or even the fact that they themselves have drifted away from the supposedly relevant facts while trying to arrive at one. That discussion is similar to the discussion of the genetics of being a Red Sox fan – there is no resolution to be arrived at, and the more scientific minutiae you pour into the discussion, the more ridiculous it only becomes.
July 4th, 2006 at 8:30 PM
But if the resolution is predicated on an interpretation of the Talmud, or by reference to one branch of Judaism’s understanding of its own moral precepts, it’s not arbitrary. None of theologians referenced in the Times piece has resolved the question by flipping a coin — each has considered the meaning of the word “mother” under Jewish law and applied their interpretation of the concept to the present circumstances.
To say “I am an Orthodox Jew” is not the same thing as to say “I am a Red Sox fan” — one may adopt the latter identity “at will,” but not the former.
July 4th, 2006 at 10:20 PM
it’s not arbitrary. None of theologians referenced in the Times piece has resolved the question by flipping a coin
“Arbitrary” doesn’t mean “random”. It simply means there are no objective grounds for a distinction. They could choose either possible answer and have reasonable grounds for defending it – what they can’t do is determine by debate that one such answer is unquestionably right and the other unquestionably wrong on some sort of scientific grounds.
I don’t fault the scholars for trying to find a meaningful or important distinction, so they can make a choice that best fits their overall religious beliefs. But the discussion reported by the Times seemed to suggest they were still trying to make biological distinctions (whether motherhood is defined mostly be genetic relationship, or by some process that takes place in the uterus), and I think it is now clear that the question they are asking is not one of biological fact.
I never meant to say that the question they were asking was unimportant. As I said in the original post, I think they are committing the fallacy of treating values questions as answerable by facts of natural science, in the way they are going about resolving the issue. Note that the other two branches of Judaism both came to perfectly reasonable – and different – answers to the same question in ways that did not appeal to science. One even opted for a definition of motherhood that rejects genetic descent as a criterion. Some of the Orthodox seem to be clinging to facts of biology and gestation as determining points for what is at bottom a matter of personal or religious values.
To say “I am an Orthodox Jew” is not the same thing as to say “I am a Red Sox fan” — one may adopt the latter identity “at will,” but not the former.
I don’t understand this. It’s true that identity as an Orthodox Jew is a rather more formal matter than being a baseball fan – for some people, I suppose their “fan” identity changes from season to season, but religious identity, particularly in a very conservative sect, is not supposed to. Non-Jews also need a rabbi to formally convert them, in order to be recognized as a Jew by other Orthodox Jews, so in that sense it’s not totally “at will”, that’s true. But the point I was making is that it’s purely a matter of human decision who is and is not a Jew. Both Judaism and Red Sox boostership are identities that can be adopted by those who do not have them, and renounced by those who do, by an act of personal decision (with necessary formalities, in some cases). They are not inherited biologically even though the traditional definition of Jewishness references biological descent. That was all I was trying to point out.
July 5th, 2006 at 12:43 AM
Let’s go back to the quote I started my original comment with:
If the rabbis were framing the question as a scientific one, I’d agree with you. But I don’t think that’s what they’re doing. I think they’re framing it as a Halachic question, and disagreeing about the answer.
In your original post you suggest that the egg/uterus question could not have arisen before the advent of non-assisted fertility, but in fact it’s a question that’s explicitly addressed in the Talmud. Consider a woman who converts to Judaism while pregnant — if having a Jewish mother is a matter of a “Jewish egg” than the child of that pregnancy is not Jewish, but if it’s a matter of gestation — or, more precisely, of childbirth — then the child is.
It’s my understanding that some Orthodox rabbis refuse to recognize the children of women who convert during pregnancy as Jewish by birth, but that Conservatives find support for such recognition in Halachic texts. If that’s the case, and if that is the basis for the split on the in vitro question, then I’d argue that there’s no naturalistic fallacy involved here at all.
July 5th, 2006 at 8:54 AM
some Orthodox rabbis refuse to recognize the children of women who convert during pregnancy as Jewish by birth, but that Conservatives find support for such recognition in Halachic texts.
That’s fascinating. I’m always amazed by the level of detail found in Halachic reasoning.
But if this is the case, then I’d argue that there is a naturalistic fallacy, and Jewish scholars should have realized that when they first encountered the conversion-during-pregnancy problem. Perhaps, before Mendel, it still would not have been obvious just how a mother contributes to the child biologically (under the homunculus theory, she only contributes by gestation, but I don’t know if or when Jewish scholars held to that theory). If so, then the non-biological nature of the question would be less clear. But to the extent that they realize that the freely-made decisions of human beings (whether to convert or not) can determine an issue that is formally defined in terms of biological relationships, they ought to be able to see that those relationships are just covers for a socially-determined category. Once again: all the other Jews figured it out. So continuing to talk about biological facts (“the genetic gift”, “the nurturing process”) to resolve that question of socially-determined identity is to make a mistake, long after the nature of that mistake has become apparent.
July 5th, 2006 at 9:34 AM
One can say that the original rules were handed down at a time when people had a less sophisticated understanding of biology than we do today and still contend that they are binding on people in the present. And I don’t think it’s necessary to believe that a certain law has a valid scientific basis to say that the scientific specifics of a given procedure are relevant to one’s applications of that law.
No. All the other Jews interpreted the Talmud differently, or construed their faith’s relationship to the Talmud differently.
I disagree. To say that the original Talmudic distinctions are arbitrary does not imply that they are therefore no longer binding, any more than a demonstration that a secular law relies on an arbitrary distinction necessarily renders that law invalid. One may reject the original basis for a ruling and still argue that the ruling must be followed.
Think of it as religious stare decisis.
July 5th, 2006 at 11:01 AM
One may reject the original basis for a ruling and still argue that the ruling must be followed. Think of it as religious stare decisis.
That’s an interesting point.
I have some comments on it in a new post on the main page.
As for the question whether former arbitrary decisions are still binding, obviously they can make their own decision about that. But it still seems to me that the original decision appears to have been intended to reflect perceived biological facts. It also appears that the current discussion of that decision is still intended to ground its conclusions on perceived biological facts. And if so in both cases (or even just the latter), then it seems obvious to me that that line of reasoning is as invalid as Catholic claims that homosexuality is immoral because it’s “abnormal” (i.e., it draws an invalid moral conclusion from observations of natural fact, and it gets the facts wrong anyway). That’s not to say they can’t come to whatever decision they like – just that they can’t claim that decision is dictated by the biology of “motherhood”, as some Orthodox scholars still seem to be trying to do.
My only claims have been that there is simply nothing about biology that makes it obvious what the answer to this question (about the definition of motherhood) should be, trying to derive those answers from biology is fundamentally misguided, and that should be obvious by now even if it wasn’t before. I don’t think stare decisis invalidates those claims.
July 5th, 2006 at 11:24 AM
I don’t know a lot about Orthodox Jewish theology, and it’s certainly possible that some Orthodox are falling victim to the fallacy you describe.
There is, though, at least one other way of looking at it. One can say, “These are the rules. They came down from us from God (or from our ancestors), and we are obligated to follow them as best we can. We may consider them arbitrary, but that doesn’t diminish their importance.”
I’m not talking about making a decision on the basis of biology, and I don’t think the rabbis necessarily are either. I’m talking about using one’s understanding of biology to inform one’s understanding of religious texts.
If, as some Jewish theologians seem to have concluded, the Talmud indicates that under Jewish law it is the act of child-bearing that creates the mother-child relationship, not the act of conception, then that fact is relevant to the Jewishness of a child conceived by the implantation of an egg from a non-Jewish donor into a Jewish woman.
Consider this line of reasoning:
1. The doctrines set down in the Talmud are authoritative statements of Jewish law.
2. The Talmud states that the mother-child relationship is created in childbirth, not conception.
3. Children born to Jewish mothers using donor eggs from non-Jewish women are thus Jewish by birth under Jewish law.
Where’s the fallacy in that argument?
July 5th, 2006 at 3:22 PM
[...] Brooklynite has been all up in my shit and stuff over the naturalistic fallacy, particularly my claim that it characterizes Orthodox Jewish arguments over how the law of Jewish identity by matrilineal descent should be understood in light of donor-egg technologies such as IVF or surrogate pregnancy. I perceived that attempting to resolve that question by reference to biological facts – as it seemed to me some Orthodox scholars are doing – is a case of the naturalistic fallacy, to which Brooklynite responds: I disagree. To say that the original Talmudic distinctions are arbitrary does not imply that they are therefore no longer binding, any more than a demonstration that a secular law relies on an arbitrary distinction necessarily renders that law invalid. One may reject the original basis for a ruling and still argue that the ruling must be followed. [...]
July 5th, 2006 at 3:32 PM
1. The doctrines set down in the Talmud are authoritative statements of Jewish law.
2. The Talmud states that the mother-child relationship is created in childbirth, not conception.
3. Children born to Jewish mothers using donor eggs from non-Jewish women are thus Jewish by birth under Jewish law.
Where’s the fallacy in that argument?
I don’t think there is a fallacy there. But note that #2 is not what the Orthodox rabbis are reported to have said. Apparently the Talmud isn’t explicit on this point – which is why some were emphasizing genetic linkages and others the gestation process. If the text is ambiguous enough that they can’t resolve the issue by direct reference, then they need a way of prioritizing the reasonable alternatives. And to the extent that they think – as it appeared to me some of them do – that they can resolve it objectively by reference to the biological facts associated with either alternative, they are making a mistake. (To the extent they are just talking about what is closest to, if not precisely identical to, the Talmud, or what would be best for the Jewish people overall, or whatever, then they’re not making that mistake.)
July 5th, 2006 at 4:19 PM
It does appear to be what Conservatism’s Rabinical Assembly said, and what some Orthodox rabbis have concluded. There’s exactly one sentence in the article that points to a disagreement with that analysis, and it’s this:
One rabbi’s gloss of the position of other rabbis with whom he disagrees. That’s it.
But no, I don’t know what argument the “genetic gift” rabbis are making.