The Double Legal Consciousness of Religious Jewish Surrogates

Abstract: Religious Jewish-Israeli surrogates embody a double legal consciousness as they endeavor to navigate two bodies of law simultaneously: the Israeli Surrogacy Law, which regulates the surrogacy agreement, and Jewish law—halakhah—which obligates them to follow religious commandments. Legal consciousness is shaped within local cultures and molds not only how people think about law—their ideas and opinions—but also what they do; in the words of Susan Silbey, it is "a type of social practice, in the sense that it reflects and forms social structures." Drawing on narrative interviews with twenty-five Orthodox Jewish-Israeli women who signed fully legal surrogacy agreements to carry babies as gestational surrogates in accordance with the Israeli Surrogacy Law, we suggest that Orthodox surrogates encounter particular dilemmas during surrogacy stemming from their double legal consciousness. Specifically, we address their dilemmas relating to the observance of religious fasts, using the phone on the Sabbath to notify the intended parents that they should come to the hospital, condom use during surrogacy in light of the prohibition of "wasted seed," menstrual impurity during embryo transfer attempts, and embryo reduction and termination of pregnancy. We delineate the different positions women take when the civil agreement imposes obligations that contradict their religious obligations.