From: chr04ha@vmsa.technion.ac.il
Subject: Re: Question on "Jewish mother = jewish children"
Organization: Technion, Israel Institute of Technology
Date: Sat, 19 Dec 1992 00:51:09 GMT

In article <1992Dec17.192641.12992@alchemy.chem.utoronto.ca>, 
jgoldber@todah.chem.utoronto.ca (Joel Goldberg) writes:
> In article <1gobr3INN4r8@gap.caltech.edu> peri@cco.caltech.edu 
(Michal Leah Peri) writes:
>>Another question:
>>If I (a Jewish woman) give birth to a child conceived by ZIFT, and the
>>ovum was not my own (and not known to be from a Jewish woman), would
>>the child still be Jewish?
>>Conversely, if I donated an ovum to a non-jewish woman and she bore
>>the child, would the child be Jewish?
>  According to the g'mara, the answer is unknown. In (chulin?) they

Can you, or anyone, locate this discussion more precisely? 

>  discuss the case of two animals that are placed so that their wombs
>  are touching, and the one give birth directly into the uterus of the
>  second, the young subsequently emerging to daylight from the second.

>  This is close enough to surrogate motherhood as to make no diffrence.
>  The g'mara asks "which animal is the mother?" and the answer is "teko,"
>  which means that no answer is known (and/or that it will be resolved
>  by Eliyahu ha tishbi etc.)

"Teko" literally means "let it stand",(its interpretation as an acronym 
(that it will be resolved by Elijah) is folk etymology.  While the chances
of such an occurrence as described above are slight, to say the least, 
there  are many cases of "teko" on issues that could very well come up 
in court, where a practical decision would have to be made  without waiting 
for  Elijah to show up and settle the Halachic dispute.

The rule is based on the still more common circumstance where the Halacha is
clear enough, but the evidence in a particular case is inconclusive. Here, the
rule that appears many times in the Talmud (e.g. Gittin 63b) is:  "Safek isur
lehumra, safek memonot lekula", i.e. "Doubt in the case of a religious
prohibition is ruled on strictly, doubt in the matters of property is ruled on
leniently." The same rule was carried over to fixing Halchot  that had been
left as "teko".  (See e.g. the commentary of the Rosh (Rabbi  Asher) on Brachot
25b): in matters of religious observance, the more restrictive point of view is
adopted; in money matters, the more liberal view prevails.

Now, if the case under discussion is a dispute between the owners of the two
cows about the ownership of the calf, the ruling might be very different from
the decision on whether it is to be regarded as first-born, and therefore 
the owner (of both cows) has to sacrifice it or redeem it from the Temple.

> 
>  Of course, the discussion, and the entire page, were simply mental
>  exercise as far as the talmudists were concerned, but they did
>  address the issue.

Therefore, as far as drawing Halachic conclusions with respect to surrogate
motherhood is concerned, the discussion  ceases to be mere mental exercise 
and its context becomes crucially important.

Amitai
 *---------------------------------------------------------------*
 | E.A. Halevi, Department of Chemistry, Technion - I.I.T.       |     
 | "Mipnei seiva takum, vehadarta pnei zaken" - Leviticus 19, 32 |
 *---------------------------------------------------------------*
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