Volume 6 Number 61

Subjects Discussed In This Issue: 

Halachah, Inventions and Other Matters
         [Manny Lehman]
Surrogate Motherhood
         [Nachum Issur Babkoff]


From: <mml@...> (Manny Lehman)
Date: Tue, 9 Mar 1993 10:46:50 +0000
Subject: Halachah, Inventions and Other Matters

There have been several postings lately stemming from the suggestion
that the Conservatives had justified or even "permitted" driving cars on
Shabbat because "cars had not been invented at the time of Matan Torah
(Giving of the Torah) or in the time of the Gemarah". I don't have the
original posting here so cannot give a precise quote but believe that I
have captured the gist of the alleged argument. The subsequent
discussion has, I believe, been misleading so, with some trepidation, I
record here Beshem Omro (in the name of he who originally said this to
me) , what I believe to be the correct tradition. The Rabbi in question
was the late Rav Joseph Jonah Zvi Horowitz z'zal also known as the
Hunsdorfer and (later) Frankforter Rov. He came to Boro Park after the
war and in the sixties moved to Bnei Brak so may have been known to some
of you.

A Takanah (provision) or Gezerah (edict) of the Rabannan applies only to
what existed at the time when it promulgated. As an example Rav Horowitz
z'zal discussed taking the temperature of a sick person on Shabbat. The
basis for forbidding this would be the gezerah of medidah (measuring)
which was instituted as an issur of Shvuth (literally "resting"). to
prevent people from doing things on Shabbat which would negate its
sanctity, business like activities for example, even if they did not
violate one or other of the 39 Melachot (activities forbidden on
Shabbat) or their Toldot (derivatives). Since thermometers had not been
invented at the time when the gezerah was made they could not have been
included so he permitted their use on Shabbat. He gave me other examples
but one should suffice.

He also clarified another point. The chachamim were always concerned
about public acceptance of gezerot and ttakanot. In fact, if one was not
accepted into practice or if it proved unacceptable by the majority,
Takanah she'en rov hazibbor yecholim la'amod bah (a decree which the
majority of the public (Jewish of course) are unable to uphold) it does
not become established. But once established its continuing
applicability is independent of the any reason given for its original
promulgation. It can only be rescinded by a Beth Din greater in both
authority and wisdom than the Beth Din that made the gezerah in the
first place. To prove these points he cited the takanot re the cheese,
bread, milk and oil of an Akum.  Of these, the first three were accepted
while the latter one was, in practice, not. For a full discussion see
Massechet Avodah Zarah (AZ), perek 2, mishnayot 5 to 6, the commentators
including Kahati and the gemara of the same Massechet beginning 29b. The
particularly revealing point is in mishnah 5 where R. Yishmael is quoted
as seeking from R. Yehoshua the reason why cheese was forbidden. After
two attempts to provide an answer R.  Yehoshua diverted the conversation
to another topic.The gemara explains that this was because he was not
ready to reveal the reason. The gezerah had not yet been in place for a
year and therefore not well established.  Premature revelation could
lead to discussion and rejection by individuals.  In the case of oil the
Mishnah states that the gezerah was abolished because the majority could
not live with it.

Rav Horowitz z'zl made it absolutely clear beyond any possibility of
doubt that these principle applies only to takanot and gezerot (ie. man
made laws of behaviour) but not, in any way, to halachot from Torah
Sh'bek'tav (written (biblical) law) or Torah Sh'ba'al Peh (derived from
the former and handed down from generation to generation). It is
fundamental to our beliefs that G' is all knowing with infinite wisdom
and knowledge covering kavyachol, be'lashon benai adam (in human terms)
past, present and future.  The concept of something not having existed,
not having been invented, is meaningless, totally irrelevant, in
relation to G' given or derived Law.  Since in the case of driving a car
and other examples we are talking of issurei de'oraitha, av melachot and
their derivatives the question of the knowledge of humans at the time of
Matan Torah (the giving of the Torah) or at the time of the Gemara,
simply does not arise.

Amongst the issues discussed were many others relevant to recent
postings.  That minhag yisrael (except for minhagei shtuss, "idiotic"
customs) din hu (an established Jewish custom has the force of law, of a
halachah) has already been cited by others. This was a matter on which
Rav Horowitz z'zl was very firm. He added, however, the following
interesting insight. Some halachot are themselves dependent on custom,
Lo Tilbash Gever Kli Isha.....(a man shall not wear women's clothes and
vice versa) for example.  What defines mens' or womens' clothing as
such? The answer, it is established by custom. But that raises the
problem of transition. One finds articles of clothing associated with
one sex s1 gradually being adopted by the other sex s2. If this involves
other prohibitions, z'niuth for example, there is no way that such a
transition can be recognised. But where such questions do not arise we
have three states. 1. The article is worn by s1 only. If at that time
someone of s2 wears the garment they are clearly committting an aveira
(transgression). 2. An intermediate situation where more and more of s2
wear the garment including also gradually Jewish s2s who are otherwise
fully observant. Such s2s are still transgressing. 3.  When sufficient
s2s, WHO ARE OTHERWISE FULLY OBSERVENT wear the garment it eventually
becomes permitted. changes in the Halachah CANNOT BE BASED ON THE
PRACTICES OF THOSE NOT FULLY OBSERVANT though they can be influenced by
actions which are wrong on the basis of custom and for which
transgressing individuals are answerable before G'. The situation is
paradoxical but realistic, a common and significant trait of Judaism. Only
those who recognise the authority of the Halachah can set the norm. The
example he gave was that of certain types of hat initially worn only by
men. Then women began to wear them. At first this was condemned by the
rabbinical authorities but ultimately they became acceptable because
practice had made it so.

I put these points forward with some trepidation because they could so
easily be misunderstood or misinterpreted. I trust that I have had the
Sayata DeShmaya to report the matter in a correct and clear manner and
without causing anyone to be misled.

Prof. M M (Manny) Lehman, Department of Computing
Imperial College of Science, Technology and Medicine, London SW7 2BZ, UK.
Phone: +44 (0)71 589 5111, ext. 5009, Fax.:  +44 (0)71 581 8024
email: <mml@...>


From: <babkoff@...> (Nachum Issur Babkoff)
Date: Tue, 9 Mar 93 17:33:46 +0200
Subject: Surrogate Motherhood

In the latest issue, Susan Slusky describes the following situation:

> There was a recent situation where 'everybody knew' that a couple had
> achieved pregnancy with ova harvested from a third party, inseminated
> with the husband's sperm outside the body and then implanted into the
> wife's uterus.

She then asks:

> Are there responsa that distinguish whether it is the
> genetic mother or the mother on the other end of the umbilical cord who
> establishes the baby's status as a Jew?  

The answer is that there are a multitude of Responsa on this and many
other related topics. In Responsa lit. the major expert on this topic
would have to be Rabbi Eliezer Waldenberg, who is (was?) THE "Posek" for
Sa'arei Tzeddek hospital in Jerusalem (his Responsa are better known as
Tsitz Eliezer). Asside from him, however, there are a mutitude of
articles written on the topic, in the various Halakhic journals. In
"Tchumin", for example, there are at least four discussions on I.V.F.
and the Halakhic ramefications thereof. There is another collection
that has occasional discussions on this topic, and that is in the "Torah
Sh'beal Peh" conferences publications. I recall that Rabbi J.D. Bleich
discusses I.V.F. in Tradition, but I don't recall which volume('s?).

In general, from what I could gather from what I've read on the topic, is
that there isn't one answer for all the Halakhic possibilities. In other
words, in some of the articles/responsa, you will find that the question of
whether the mother is the "genetic mother", or the woman "on the other end
of the umbilical cord", varies, not only from one opinion to the next,
rather from the purpose for which the question is asked! 

For example: R. Zalman N'chemia Goldberg (Tchumin 5, pp. 248-259) feels that
the mother is the person "on the other end of the umbilical cord".

A halakha that would be consistent with that conclusion, is that 
sons who are born SUBSEQUENT to their mothers conversion, are prohibited
from having relations with each others spouse, which would not be the case,
had they been considered related to their mother from the time of conception
For although "...their conception is in unholiness, their birth IS in
holiness". (If genetics were the deciding factor, then they should have been
considered related no matter what. Therefore we see, that for that
particular purpose, we relate to birth as the deciding factor).

On the other hand, the editor of Tchumin, feels that genetics should be
understood as the dominant factor when the issue of parenthood is concerned.
(Tchumin 5, pp. 268-269).

The fact is that according to all the opinions that appear there, there is
no consistency, which ever way you go. In other words, as I previously
stated, for certain purposses we regard the genetic mother as determining
the Halakhic status of the offspring, and in most cases it is the opposite.
(the impression I got from reading these articles, including an article by
R. Avraham Yitzchak Ha'Levi Kilav-Tchumin 5, pp 260-267- is that Hallacha
generaly prefers to view the birth mother as determining Halakhic status,
and that the cases where they prefer to determine according to genetics, is
only "l'chumra", when we are afraid of ridiculous situations, such as
genetic siblings being permitted to marry).

R. Ezra Bik, however, has the opposite view (Tchumin 7, pp. 266-270).
According to him, conception is the time motherhood and fatherhood are
decided, and just as everyone agrees that as far as fatherhood is concerned,
the decisive factors are time of conception and genetics, so too as far as
motherhood is concerned.

I would like to add my own "two cents" here, and remind you of what I
precieve as a common mistake in applying Halakhic/legal concepts, to modern
biological/medical concepts.

The truth is, that the terms: "motherhood", "fatherhood" and "parenthood",
are nothing more than Halakhic/legal concepts! Biology and the sciences in
general use these terms, only when they are comfortable, and usualy apply and
coincide with legal, and natural situations. There are no legal
ramifications for example, as far as ANIMALS are concerned, yet
when our family pet has a litter, we refer to the chilbearing animal, as the
MOTHER. Hallacha does, for its own purposes relate to the childbearing
animal as a "parent", when that is relevant. A good example would be
concerning a discussion previously held on this network, concerning
"shiluach ha'ken", sending away the MOTHER bird. The question of who is the
mother bird, becomes however, irrelevant in ANY OTHER CONTEXT!

For example: Modern legal systems all recognize that a child can be
adopted, and that subsequent to that adoption, all legal ties between the
adopted child and his "natural" parents are severed! Nothing "biological" or
otherwise, phisical changed! Yet for ALL intents and purposes, the parents
of this child are the adopting parents, and NOT the "biological" parents.

It seems to me, that because of our understanding (I include myself only
figuratively :-) of genetics, and how traits are passed on from one
"generation" to the next, we find it comforting to apply familiar legal
terminology, to biological realities. Hence, instead of refering to
offspring as "progeny", we use the term "children". Instead of using the
term "ancestor", we use the term "parent". It does not, however, have any
bearing, inherently, on the Halakhic/legal result.

That is not to say that Halakha can not prefer to use such realities. Yet
if it does, it seems strange to me to try to apply these realatively modern
truths (concerning genetics) mutatis mutandis on ancient Halakhic concepts
which could not have visualized or conceptualized natural occurances of
fetal transplantation. 

Therefore, it seems that the result R. Zalman N'chemia Goldberg reached,
concerning this issue, whereby for most purposes we would view the "birth
mother" to be the legal parent-and that in cases where "siblings" may come
to intermarry we will recognize them as related "l'chumra", seems both
consistent with the historical developement of Halakha as well as science.
Although I would humbly add, that if such "siblings" did in fact have
relations, we would not view their offspring as tainted, at least

>also, does current rabbinic
>opinion view this path for achieving pregnancy as praiseworthy, since it
>Allows a man to fulfill his mitzvah for reproduction, or not
>praiseworthy but allowed, or not allowed but accepted once it occurs or

As a matter of fact, in T'chumin 10, R. Zalman N'chemia Goldberg says that
as long as proper care is taken to insure that "siblings" won't wind up
marrying each other, by using proper registration, I.V.F. should be viewed
as a blessing for couples who would otherwise be unable to bear children. If
I'm not mistaken, however, R. J.D.Bleich, in Tradition (I don't have it in
front of me right now) seems to be more reserved about using I.V.F. but does
not attempt to forbid it outright.

The qestion that most bothers people today, however, which is who gets to
keep the child (baby M. cases), is almost not discussed in the lit. that I
read, although R. Aryeh Frimer told me that his brother R. Dov Frimer came
accross an article where that issue was discussed vis' a' vis' the Halakhic
obligation to support such a child. If I have more time, BL'N, I'll check it

                           Nachum Issur Babkoff


End of Volume 6 Issue 61