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Monday, 11 Adar 5775 – March 2, 2015
Megilla first introduces Ester, it describes her as an
orphan girl who was adopted by her cousin, “ki ein lah av va-eim” – “because she had neither a father nor a mother”
(2:7). The Gemara (Megilla 13a)
interprets this phrase to mean that Ester
never had a father or mother: “When she was conceived, her father died, and when she was
born, her mother died.” Rashi
explains this to mean that Ester’s father died immediately after he engaged in
relations with Ester’s mother, before conception, and thus he cannot formally be
termed a “father.” And Ester’s
mother, similarly, died during labor, before delivery, and thus she never
attained the formal title of “mother.”
The Gemara’s comments may be significant with respect to the well-known
question concerning the status of a child delivered by a surrogate mother, in
whose uterus a fertilized egg from a different woman was implanted. One might conclude based on the
Gemara’s description of Ester that “motherhood” is established at the time of
delivery, and not at the time of conception or at any point during the gestation
period. After all, Ester’s mother
was not formally considered her “mother” because she was alive at the time of
delivery. As such, it would seem, in
the case of a surrogate mother, it is the woman who delivered the child, and not
the mother whose fertilized egg developed into the infant, who is considered the
We may, however, refute this proof in light of the comments of the
Maharal in his Or Chadash commentary (p.
112). The Maharal explains the
Gemara’s comment based on the well-known halakhic principle of “ubar yerekh
imo” – a fetus is regarded as a
“limb” of the mother. The fetus is
viewed not as an independent organism, but rather as a part of the mother’s
body. Therefore, a woman is not
considered a “mother” until after the child exits the womb and becomes an
independent entity. Just as a woman
is not the “mother” of her limbs or organs, she likewise is not the “mother” of
her fetus before birth. According to
this explanation, the Gemara’s comments are not necessarily relevant to the
question regarding a surrogate mother.
The Gemara establishes only that there is no such thing as “motherhood”
until a fetus is born – which is different from saying that the woman who
delivers the child is the halakhic mother.
According to the Maharal, the Gemara’s assumption is simply that there is
no such thing as a “mother” of a fetus.
It is entirely possible, however, that if a fertilized egg is implanted
within another woman, once the fetus is born we consider the baby the child of
the woman whose egg was fertilized.
The fact that a fetus cannot have a mother before birth does not mean that
motherhood is defined by delivery and not by conception; it means only that it
begins only at delivery. Therefore, the
Gemara’s comment provides no proof to the argument that the woman who delivers a
child conceived by another woman is considered the halakhic mother.
(Based on Dovid Lichtenstein’s Headlines: Halachic
Debates of Current Events, pp. 246-248)
Rav David Silverberg
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