The Establishment of Maternity & Paternity in Jewish and American Law

Michael J. Broyde¹

Rabbi Broyde teaches Jewish law at Emory University School of Law in Atlanta.

I. Introduction

This Note surveys and compares various issues relating to the establishment of maternal and paternal relationships in American and Jewish law and advocates solutions to certain problems within Jewish law. The Note is organized into three parts. Part One deals with the establishment of paternal relationships in both Jewish and American law, with an emphasis on those arising from artificial insemination. Part Two analyzes surrogate motherhood under both legal systems, as well as the general rules for establishing maternal identity. In analyzing how Jewish law treats surrogate motherhood, this Note presents a detailed analysis of the talmudic sources dealing with surrogate motherhood and argues that Jewish law focuses on conception and implantation in establishing maternal identity. The American law section summarizes the case law in this field and points out the analytic disharmony between the different court opinions. Part Three explains the adoption law according to American and Jewish law and focuses on the fundamental differences in methodology used by each system. The appendix to this article analyzes the effects of sex reassignment surgery on parental and marital status, and the method of establishing sexual identity according to the American and Jewish legal systems. Fundamental principles used by each system to establish parental and personal status are emphasized throughout the Note.

This Note concludes that while Jewish law has maintained both an analytically clear definition and consistent application of rules to establish maternity and paternity, American law has not; instead it has chosen to focus on the individual equities of the parties before the court, thus sacrificing consistency for equity.