Ovums and the silence of the Mesorah

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Click here to read a fascinating New York Times oped about the intersection of Jewish law and technology. Written by Caren Chesler, a Jewish woman who put off children until she was in her mid-40s, the piece explores the various Jewish legal opinions on egg donation, while also permitting us to rummage around in her consciousness for a bit.

We learn, for instance, that Chesler decided against adoption because someone else's nine year old son has an obnoxious streak(!) and that she thinks "Opinions coming out of Israel carry a lot of weight." Also, she doesn't seem to have heard that Michael Broyde now wears a scarlet letter on his chest. She quotes him as an expert and identifies him as a judge at the Beth Din of America, without qualification.

The question the article attempts to answer is this one: According to Jewish law, who is a child's real mother: The one who carries him and raises him, or the one who donates the eggs? The op-ed purports to discuss the different answers given by different Rabbis but by the end of the piece we can see that this summary was perfunctory. What the Rabbis say and think has no sway on Caren Chesler:

“Muh-MAH!” Eddie said as he ran into my arms. I should have just asked my son who his mother is. He’s known all along

This is a legitimate point of view, of course, and a sympathetic one to boot. But, if that's where your heart is, why go to the bother of first quoting six different Rabbis?

For those interested in such things, here's what her Rabbis said:

• Rabbi Shaul Rosen: Motherhood is a function of DNA. if the egg donation came from a non-Jewish mother the child must be converted.
• Elliot Dorff: You can find scriptural evidence for either position 
• Kenneth Brandler: The child should be converted because this is a case of doubt and we should play ti safe
• J. David Bleich: The child has two mothers, according to Jewish law. And this, together with other issues, makes things so complicated you shouldn't bother with in vitro fertilization in the first place, 
• Gidon Weitzman: Unclear.
• Micheal J. Broyde: It would be easier if Jewish law followed the secular model and recognized the person who wants the bady as its mother. 

What I want to know is this: If the Mesorah is silent, why can't the Rabbis be silent as well. Identifying the egg donor as the "real" mother only complicates things, for all concerned. Why make things complicated absent a clear halachic perspective? Why invent difficulties - and let's be clear: When the Mesorah is silent, any rabbinic activity is by definition "inventive." The rabbis who have decided that this child isn't Jewish are choosing of their own free will to complicate things and choosing to tarnish the child and force him to undergo conversion. Its fair to ask what it is about their psychological makeup that compels such a choice.

Follow-up question: The Mesorah is certainly silent on this subject (ovums were not discovered until the 1820s) but this hasn't kept the Rabbis quiet. What makes us so certain that the same sort of thing didn't happen 2000 years ago? Perhaps the Rabbis of antiquity also spoke when the Mesorah didn't.

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