The Israeli Supreme Court ruled  May 11 (U.S. Mother’s Day) that motherhood by surrogacy trumps motherhood by genetics in terms of “legal parentage.”

Baby Sophia was produced through in vitro fertilization (IVF) and born in 2022.  She was born to a surrogate mother and her “partner” (it is unclear from newspaper reports whether the two are married or not).

In the course of the pregnancy, it became clear the child was not biologically the surrogate’s and her partner’s.  Unspecified “medical problems” resulted in paternity testing that established the IVF clinic had implanted somebody else’s baby in the surrogate.  Reports do not specify what became of the surrogate-partner’s child.

What followed were four years of litigation by the genetic parents to recover the child.  A trial court held for them but that decision was reversed, finally, by the Supreme Court of Israel on a 4-1 vote.

From my perspective, the most striking part of the Court’s reasoning (as reported by press, the opinion has not yet been posted) seems to be how it arrived at its decision.  Israel permits surrogacy (“agreements for the carriage of fetuses”).  But, according to reports of the ruling, the law does not address the problem of a mix-up in implanted embryos.  Given that legal lacuna, the Court extrapolated from existing legislation, which stipulates that if a surrogate carrying somebody else’s baby decides she wants to break the agreement and keep the baby, she can with a court’s permission. (It is unclear to me whether that ability to break the contract affects only cases where she is also genetic mother or all cases, though it seems the latter is probably the case).

The Court’s venture into legislative legerdemain ignores one fact: in the surrogacy case envisioned by law, the genetic parents had at least consented to involving a surrogate.  In this instance, it appears they did not.  While unclear, it seems the surrogate’s involvement came from the clinic’s embryo mix-up.  Presumably, the genetic parents then had intended to receive and implant their fertilized embryo.

The dissenting judge held that Baby Sophia should go to her genetic parents, and even the majority decided that a “special framework” should be put in place to involve the genetic parents in the child’s life.

The Court majority also put weight on the fact that the birthing mother (AKA the fetal “carriage”) and her partner had raised the child for almost four years and so the child’s “best interests” lay in maintaining this relationship.

Oh, what a tangled web we weave ….

Based on the facts reported, the most egregious aspect of the Court’s ruling appears to be its denigration of biological relationship as a factor – much less a decisive factor – in a parental relationship.  The fact that Baby Sophia is actually blood related to her genetic parents was less relevant than social connections or – to borrow a transportation term – “conditions of carriage.”

Disregard of biology is very much a phenomenon of our gnostic, anti-body culture.  This is apparent, for example, in gender ideology.  IVF by its nature has always denigrated biology by treating gametes not as the basic building blocks of personal relationship but merely necessary ingredients for making a baby.  When gametes come from the person(s) who will eventually raise the child, there is arguably some personal connection. But when they are merely donor-supplied, they degenerate into requisite but impersonal commodities in the baby manufacturing process.  The important point is that, in all these instances, relationship is the product not of biology but of sheer and pure will.  The fact that biological relationship was disregarded even where the parents apparently did not consent to be donors should be worrisome.

Who, then, is at fault?  Only the clinic?  For sloppy chain-of-custody procedures?  Were the genetic parents injured by losing the raising of their child or only damaged by negligent medical procedure?

Echoes of the 2024 Alabama IVF case  – spun up by the pro-abortion side to defend “reproductive choice” – reappear.  Amid the noise generated by that case, what was obscured was why the Alabama Supreme Court allowed the state’s wrongful death statute to be applied.  A couple had conceived and frozen their embryo, on deposit in the clinic.  The clinic had let an unauthorized person into its freezing area, who destroyed that couple’s frozen embryo.  The couple sued.  The question was: could they sue for injuries because of their child’s death or damages because of the irremediable destruction of their “property.”  They claimed the former; it was the clinic that fought that claim because personal injury costs more than property damage.  All the advocates of “reproductive justice” lined up behind the clinic and Big Fertility.

A similar problem seems to have arisen in Israel.

Amidst all this confusion, including the fundamental redefinition of human relationships independent of natural biology, it is amazing how IVF – invoking hard cases – manages to continue to pretend to be “pro-life,” “pro-child,” and “pro-woman.”  It is none of those things.

One suspects the bias towards birthing mothers may be a result of the religious position that Jewish identity is matrilineal, i.e., descending from the mother.  The traditional explanation for that was that, whereas paternity was always disputable, up until our times nobody doubted who the “mother” was.  At least not until maternity was sliced and diced into genetic, gestational, and social shards.

User:Fb78, CC BY-SA 2.0 DE <https://creativecommons.org/licenses/by-sa/2.0/de/deed.en&gt;, via Wikimedia Commons https://commons.wikimedia.org/wiki/File:Frauenberg_030.jpg%5B/caption%5D

It’s not the first time Israel faced maternity disputes.

Some 2,900 years ago, King Solomon was confronted (I Kings 3:16-28) by two woman disputing who was a baby’s mother.  One woman claimed another had switched her dead baby for her living newborn; the other argued her opponent stole the child.

Solomon did not seek to devise a “special framework” for maternal visitation.  He called for a sword and ordered the baby to be cut in two, one half given to each claimant.  One woman objected; the other didn’t.  Solomon knew who was the mother.

Things used to be so much simpler.