A rabbinical court in
Israel has held that a minor born of a donated egg would not be recognised as a
Jew, although the egg donor is listed as Jewish in the population
register. The child’s mother who wanted
to determine the status of her minor son was refused because the donor
identity’s secrecy prevents the court from investigating the donor’s
Judaism.
According to the judges,
the interior ministry’s records are not in accordance with Jewish laws – they
are certainly more lacks than the Rabbinate’s – therefore additional
examination of the donor’s Jewish status is needed as a condition for
determining the child’s religious status.
The case highlights the
problems for all Jewish intended parents seeking egg donation either by itself
or as part of a surrogacy process. For a
person to be considered Jewish, their mother has to be a Jew. When it comes to egg donation, it has long
been considered that having an egg donor who was a Jew is sufficient.
The case highlights the
difficulty with anonymous donors. In
Australia a donor is either a known donor or a de-identified donor, i.e. the
child can find out after turning 18. In
the United States, both types of donors are available, but many egg donors are
anonymous. The child will never know who
was the donor. The Attorney-General in
the case demanded that the donor’s identity be kept secret and refused to
reveal it, because this was believed to deter future Jewish women who wished to
donate eggs, fearing that their identity would be exposed. This means that the minor will never be able
to prove his Jewish status.
An implication of the
case might be that any Jewish egg donor needs to be a known donor. If a de-identified donor donates eggs – and
the child cannot find out who that woman is until he or she turns 18 – then
that child may not be able to be identified until becoming an adult that he or
she is Jewish.
This will mean inevitably
that Jewish intended parents will be competing with other Jewish intended
parents for any available Jewish egg donors who are prepared to be known donors
– which means that the compensation likely to be paid to those egg donors is
going to be higher (whether this occurs overseas) because they may well be as
scarce as hens teeth. This in turn
potentially brings up legal issues for Australian intended parents who
undertake egg donation agreements overseas – that they don’t inadvertently
commit breaches of Australian laws dealing with human tissue and human cloning
and potentially put themselves at risk of being
punished for an offence of up to 15 years’ imprisonment.
In the words of a
commentator on Reddit:
“It’s a halachic dispute but this
beit din decided one way. The issue is,
as seen above, that the anonymous donor is explicitly listed as Jewish, and the
beit din wants to do a Jewishness test on them, which would require revealing
their identity.”
Anyone who is Jewish
considering undertaking egg donation and as part of their family formation
journey should carefully plan the process in light of this judgment.