Parshas Breishis: In His Likeness and Image - A Challenge for Shlomo Hamelech

 

    ויחי אדם שלשים ומאת שנה ויולד בדמותו כצלמו ויקרא את שמו שת    

And Adam was 130 years old and he fathered in his likeness and according to his image.

Parshas Breishis teaches us the “way of the world”. How the world was created, how mankind was created, and how we are meant to replicate ourselves.

The Navi (Yeshaya 45:18) tells us that a primary mission of creation was for all mankind to reproduce.

כי כה אמר ה' בורא השמים הוא הא-להים יצר הארץ ועשה הוא כוננה לא תהו בראה לשבת יצרה

For so says Hashem who created the skies, He is the G-d who formed the earth and made it, He established it - He did not create it to be desolate, He formed it to be inhabited.

And we all learn, some way or another, that there is a very natural way to accomplish this mission.

והאדם ידע את חוה אשתו ותהר ותלד את קין 

And the Adam knew (was intimate) with his wife Chava and she became pregnant and gave birth to Kayin.

This two-makes-three system is a total marvel. So much so that I see it as absolute proof that G-d created the world. How could such a complex multi-faceted system evolve by “accident”?

As an aside, for decades, I have been continuously perplexed about how evolutionists can even begin to explain this phenomenon. I Googled it up now (and I have done it several times in the past), and I still can’t get any clear answers. There is talk about why sexual reproduction is beneficial and when it originated (about two billion years ago) but every serious site seems to dance around the subject of how it originated.

One site seems to portray a very objective essay on this question. You can see it HERE. The following excerpts are the main points from the Conclusion:

Darwinists are no closer to solving the origin-of-sex problem today than they were in Darwin’s day. The advantages of sexual reproduction are well-known, and include the production of enormous genetic variety compared to asexual reproduction...

 

Theory aside, sexual reproduction is almost universal in the higher plant and animal world, even if evolution cannot explain it in Darwinian terms. This serious gap in evolution was largely ignored by Darwin, and by most evolutionists today, because they have not been able to propose even plausible “just-so” stories to explain the evolution of sex. Like many difficult evolutionary questions, the best strategy is to ignore the entire problem, which is what evolutionists have done. ... The problem of how reproduction occurred before both systems were evolved concurrently has never been answered.

 

The peer-reviewed literature effectively documents the fact that the evolution of sexual reproduction is a major unsolved, and unsolvable, problem for evolution. The former editor of Nature, John Maddox, writing about the question of when and how sexual reproduction evolved, stated that “Despite decades of speculation, we do not know” how sexual reproduction evolved (Maddox 1998, 252). This classic study of the origins of sex concluded, “how or why sex [evolved] is a deep mystery” (Judson 2002). As Professor van Rossum has concluded, “a salient characteristic of living beings, sexual reproduction, defies Darwinism, and [is] not based on an improbability, but on an impossibility of explanation” (van Rossum 2014, back cover). The fact is, evolutionists admit that they are perplexed about the whole question of [origin of] sex (Eckholm 1986, Section C, 1).

So we have a marvelous system of reproduction. But it doesn’t only get us here. It also gives us families and “clans” together with family identities and family traits. It let’s us know who we are and what our outstanding traits are as well as our vulnerabilities. We call this ethnicity. We also call it genetics.

The Torah calls this בדמותו וכצלמו  - in their likeness and according to their image.

Along with this ethnicity, it gives us a sense of belonging. As we say, “Blood is thicker than water” or “We can pick our friends and we can pick our enemies, but we can’t pick our relatives”. Another related maxim is, “Home is the place where they have to let you in.” I, you, or he is a descendant of this or that ancestor. We are one of the bunch, a MOT (member of the tribe), blood relatives. Nobody can change this.

It’s in our genes.

Along with this comes the motherly instinct and maternal love. When a woman carries a fetus in her body throughout gestation, she is naturally bonded to whatever comes out. No matter what.

This is the upshot of natural, biological reproduction; and this is how it was meant to be. And this is what all of us want. We do not only want offspring, but we want our offspring to be like us – in our likeness and according to our image. We want them to carry our genes.

Most of us are blessed to be able to reproduce naturally without much effort and without any intervention. Sadly, there are a select few who are not so fortunate. For this group, the road to reproduction may be long, arduous, emotionally draining and prohibitively expensive.

For some, any type of natural reproduction is virtually impossible. If they still want to be parents, their only option is to adopt or foster children born of others. They can be parents and have quasi-offspring. But they will not be in their likeness and according to their image.

Others suffer from conditions that make conception or gestation difficult but are still able to reproduce with the help of modern medical intervention. If things work out, they can have the natural genetic offspring that everyone wants.

A common and widely practiced method of medical intervention is to combine the actual seed from the male and female in a laboratory procedure and induce conception outside of the womb. When successful, an embryo develops and is reimplanted inside a willing female. This is known as in-vitro fertilization or IVF.

Many married couples resort to this method wherein the female seed (egg) is extracted from the actual wife and the male seed is extracted from the actual husband. The resulting embryo is a true genetic biological offspring of this very couple with all the requisite likeness and image and ethnicity. Typically, all parties are overjoyed and continue life as any natural family. Also, although there may me some collateral Halachic questions when Jewish people need to do it, the technique itself involving the actual seed from a kosher Jewish husband and wife for their own use is not a question at all. It is a blessed undertaking.

It doesn’t always happen that way.

We all know that, medically, it is not necessary for the woman seed to come from the actual wife nor the male seed to come from the actual husband. Medically, any viable woman seed and any viable male seed will do the trick. Indeed, for many couples, there can only be successful IVF if the seed of one or parties is obtained from an outside source. Any non-Jews and irreligious Jews go this route. For us Torah observant Jews, it opens up a big slew of Halachic issues.

The primary issue is in a case where the male seed comes from an outside source if such a thing can me permitted at all. Can a married Jewish woman knowingly artificially implant the seed (or an embryo seeded) by another man?

But even if the embryo is the husband’s seed and another woman’s egg, or if it was the seed of another man and was implanted nevertheless, there are a myriad of Halachic concerns. I voiced these concerns in one of my previous posts about the subject of DNA testing for mamzeirus. What is this baby’s status for geirus, kahuna, yichus (mamzeirus), mitzvos Kibud Av v’Em, yerusha, yibum and chalitza, bechorah, and more.

All of the above relates to a couple that knowingly implanted such an embryo with the blessings of the relevant outside donors – who are usually totally detached from a relationship with this offspring. But what if the IVF from outside sources was a mistake? What if this couple successfully created an embryo from their own seed but the wife was implanted with a different one from another couple who did the same? 

 

Who gets custody of the baby?

https://www.timesofisrael.com/court-orders-genetic-test-to-identify-biological-parents-in-embryo-mix-up/

Apparently, this is exactly what happened here in Assuta Hospital about eight months ago. The wife of a couple who seemingly had a viable IVF embryo of their own was mistakenly implanted with an embryo that was not theirs. So far, it hasn’t been pinpointed to whom the embryo belongs, but it seems to have been confirmed that it was not that of this couple.

This means it is the genetic biological issue, and the likeness and image of other people. Yet this woman is carrying it and will, IYH, give birth to it. Very soon.

Who are the true parents of this child? Who gets to keep the baby? (Note – we are talking about conceptionally challenged couples who invest much blood, sweat, tears, prayers, and probably a ton of money into their treatments.)

This question will certainly be looked at from a legal perspective. The article states that the pregnant “mother” has thus far refused to have the fetus genetically tested and has no intention of relinquishing custody to anybody else without a court battle. No telling where this one will go in Israeli court.

The important thing is that, at long last, the Israeli court indeed ordered a genetic test. Personally, I think this is the right move.

Of course, my mandate is to look at this from a Halachic perspective. If this would go to a Beis Din (note- I have no idea if either of the couples are religious or even Jewish), who would Beis Din give custody to?

I think this is a tough one that would even perplex Shlomo Hamelech. The old wave the sword trick isn’t going to work here. And duct tape won’t fix it either.

On the one hand, as I wrote in my previous series, Beis Din is not too keen on letting genetic testing establish Halachic status over the basic guidelines we have employed for generations when such testing wasn’t available. Of course, in those generations, IVF wasn’t available either. As such, many opinions will say that the mother who carried and birthed the baby is the halachic mother, at least for geirus purposes, and consequently should be entitled to keep the baby.

I believe there are other Halachic opinions on this, as well.

The bigger question is, would Beis Din be agreeable to undergoing genetic testing at all?

They almost never allow it in a case of potential mamzeirus, but if we are dealing with two properly married couples, the issue of potential mamzeirus should be off the table (I think). If so, why not allow genetic testing?

What does genetic testing establish anyway in Halacha? Would the results be considered eidus? Umdenah d’mukchach? Raglayim l’davar?

Another interesting question. The only thing that is established is that this embryo did not issue from this couple. They are [currently] “benefiting” from an embryo paid for and produced by another couple. Assuming that we know who the other couple is, are they not obligated to cover the expenses put out by the other couple?

I certainly believe they are. See Choshen Mishpat 375.

Would a genetic test that identifies the real biological parents be sufficient to enforce this claim?

If so, is it fair for the couple to withhold genetic testing in order to evade this obligation?

To resolve these questions, let’s look at how this problem is being handled in court. I know nothing about the details of the court order and what the arguments were that made it take until now (the baby is almost due) nor of the court's considerations in its ruling. But I do know this. In Israeli court, one factor overrides all other factors in child custody disputes: What is the best interest of the child.

The secular world does not recognize biological parents. There are only “legal” parents. However, in most normal cases, the biological parents are the legal parents. Where some other people are designated as the “legal” parents for whatever reason, they have all the trappings of parents and the biological parents are out. As such, the issues of yerusha, bechora, Kibbud Av V’Em and yibum are non-issues to them.

Left to this alone, the courts may feel it is best for the kid just to stay where he is.

On the other hand, the courts don’t have the rules of eidus and motzi m’chaveiro alav haraya (burden of proof) like we have in Beis Din. To them, genetic testing is eidus gamur and if a couple who is very likely to be the real parents want to sue for monetary damages, they can win with genetic testing or circumstantial proof that the child is theirs. Thus, if another couple, or a group of couples, demand them to undergo genetic testing for this purpose and, since this is not a question of mamzeirus, the court will not seek approval from the Rabbinate.

If another couple is positively identified as the true biological parents, then the court should be practical and use common sense (though I wouldn’t bet on it).

In this case, the biological parents who are positively identified will not be quiet. They will make noise and court cases and demand a part in this child’s life. And, as being the true parents who invested so much to have their own child, they will never give up. Ever. This child is in their likeness and according to their image.

We can assume that every child truly wants and deserves to be raised by his biological parents and to be a part of his clan and to interact with his blood relatives. The child in this case will certainly be aware that there was a mixup at the lab and he was implanted into his non-biological mother. He will also know that his biological parents want him and always wanted him and fought for him and they were denied the opportunity to raise him.

This is the worst thing that can ever happen as a child. Personally, I see this as a recipe for long-term emotional trauma which can lead to a dysfunctional life at best and depression and suicide, at worst.

All this is in a case where the biological parents can be positively identified. And, especially in the courts, they can certainly be positively identified with a genetic test.

In the current story the birth mother was refusing, and the court has just now ordered it. The court may have asked itself - Is it fair to the child to withhold genetic testing from him/her and deny him/her a relationship with his/her biological parents, extended family, and not to be aware of his heritage and family medical conditions when necessary?

Let’s just go one step further. It is a sure thing that at some point in the future, the kid will discover that his parents are not his biological parents. He will grow to be an adult and, faced with uncertainty in his life, the odds are that he will all on his own take a genetic test to find out the truth.

What happens then?

Clearly, at least from the perspective of the court, it is in the best interest of the child to be genetically tested so that he /she may know the truth. He is certainly entitled to it.

Yet, after all of this, it only makes sense for the court to order the testing if they are inclined to grant custody to the biological parent. My prediction is that this is what will ultimately happen.

So, let’s get back to Beis Din. What would happen there?

Now that I come to think of it, maybe Shlomo Hamelech can guide us in this case. Without a sword.

Firstly, Shlomo did not open up a Choshen Mishpat and preach about  המוציא מחברו עליו הראיה. There are some cases that need to be determined by a  לב שומע, לשפוט את-עמך, להבין, בין-טוב לרע

The “birth” mother is refusing to undergo genetic testing because she wants to keep the child. Not because this is really what is best for the child. My guess is that if she were that child, she, like most children, would want to grow up with her biological family. I know I would.

Hence, she wants what is best for her. Not what is best for the child. She is a selfish person not a selfless one. She is just like the mother who switched babies in the case of Shlomo Hamelech.

Shlomo Hamelech did not only grant the child to the second woman. He also declared “She is his mother”. We understand this to be extra words with additional meaning.

What did he mean?

Firstly, there is a known Midrash that says that Shlomo didn’t really say it. He only granted the baby and it was a heavenly voice – bas kol – that proclaimed “She is his mother” to confirm his judgement as accurate.

But, if we look at the simple text, that Shlomo HaMelech said it, what was he trying to say?

What he was saying is that she was capable of being his mother. She showed the attributes of a mother that qualified her for the job even if the baby wasn’t really hers. Conversely, the other claimant clearly did not want what was best for the child and, as such, wasn’t even qualified to be anybody’s mother.

I see the same behavior here. As distressing as it is for a woman to relinquish a child that she carried, it probably no more distressing than being guilty of killing one’s own child as was the case by Shlomo. Yet, a true mother must be capable of overcoming her distress for the benefit of the child.

Once we understand all this, I think that if this case would reach the Rabbinate, Beis Din should take all this into consideration and do what is best for the child. I believe they should approve a genetic test before the child grows up and does it himself. The results would be no less than an umdenah d’mukchach. The true parents should get custody of the child and the birth mother honorable mention.  

There is a reason why HKBH created man to reproduce in their likeness and according to their image. Blood is thicker than water.

It’s part of the gene pool.