Wednesday, March 2, 2011

Infertility and the Bible 7: Options Available to the Childless - Surrogacy

Last week we looked adoption practices in antiquity. This week we look at surrogacy.

Surrogate Mothers and Second Wives

If prayers and magic did not work and adoption, for whatever reason, was not an option, there was the possibility of surrogacy. Unlike today, however, this was not a matter of hiring someone to carry a child to term for the couple. The process involved the husband taking an additional wife. As noted above, numerous marriage contracts from antiquity contain the stipulation that if the wife does not bear children, the husband has the legal right to take another wife. But this is not simply a case of polygyny in which a man has multiple wives of equal status.[1] Rather this is more accurately described as polycoity whereby the first wife retains her status as the primary wife and the subsequent wife has a secondary status to that of the first.[2] The purpose of the secondary wife is for producing an heir within the household. Her status, however, does not make her the equal of the primary wife simply by providing an heir to the husband. She is still of a lower status than the first wife. This is demonstrated most clearly in the Law Code of Hammurabi §145 which states: “If a man take a wife, and she bear him no children, and he intend to take another wife: if he take this second wife, and bring her into the house, this second wife shall not be allowed equality with his (first) wife.”

The option of taking a secondary wife was an alternative primarily available to the wealthy.[3] It is difficult to conceive how a childless, peasant couple could afford to budget another adult into their economic situation. Or, what family was going to give their daughter to a man who was not only childless but also poor? Conversely, it was not always economically or socially advantageous for a man to marry a second wife. At the very least, a barren wife could help with running the household or working in the fields.[4] But a man could, in addition to his wife, have children with a concubine or one of his female slaves.[5] Furthermore, slaves were sometimes part of a woman’s dowry that she brought with her into the marriage agreement.[6] A childless woman could offer her personal handmaid to her husband as a way to produce an heir. The Law Code of Hammurabi §144 and 145 describes just such a situation and the biblical stories of Sarah, Rachel and Leah reveal that the Genesis narrator was aware of this possibility (Gen 16:1-3; 30:3, 9).[7] But this remedy was far from being complicated. On the one hand, it could potentially solve the inheritance problems connected with childlessness. On the other hand, it threatened to complicate the status issues facing the wife. The presence of another woman in the household who produced an heir meant that the division between slave and wife became intertwined and confused.

The handmaid was always of a lower status than that of the wife.[8] Although she might be in a sexual relationship with the husband she was not the primary wife. The giving of the handmaid to the husband for the purpose of bearing children complicated the situation, however, since she belonged to the wife, but was now also the husband’s other wife.[9] The female slave was the property of the owner and could, under normal circumstances, be exploited and disposed of like any other piece of property.[10] But when the slave/master relationship resulted in motherhood, the female slave was afforded some protection from the regular status of property. According to LH §171, a slave who had borne her master children was to be released after his death. Furthermore, LH §146-147 discusses the case of a wife who gives her handmaid to her husband.

If a man takes a wife and she gives this man a maid-servant as a wife and she bears him children, and then this maid makes herself equal with the wife, because she has borne him children, her master shall not sell her for money, but he may keep her as a slave, reckoning her among the maid-servants. If she has not borne him children, then her mistress may sell her for money.

These stipulations demonstrate that the introduction of motherhood potentially alters the status of the slave. Raymond Westbrook has described the child-bearing slave woman as possessing a split-legal personality. She remains the slave of her mistress while becoming the wife of the latter’s husband. The primary wife loses some of her rights over the slave.[11] She can discipline her by reducing her status within the household, but she can no longer sell her since the introduction of motherhood has altered her status and there is a tangible relationship between the handmaid and the husband as evidenced by the child. Although a slave, she is still a wife, but the dividing line between these two statuses is not always clear. As a result her status is somewhat ambiguous since she cannot claim the rights and benefits of a wife, but she also cannot be disposed of in the same way as that of any other slave. Thus, motherhood brought a change in status to the female slave.[12]

At this point it is important to signal caution when reading the above legal codes. It would be incorrect to suggest that the codes were somehow descriptive of what always happened. The codes, more than likely, reveal an ideal principle rather than a fixed practice. Indeed, marriage contracts demonstrate instances when a wife retained the right to give her husband her handmaid to produce offspring and then to sell the slave.[13] Such a condition in the contract is probably designed to overcome the type of restraint described in LH §146-147. But even if the legal codes were not always followed, they do represent a window into social perceptions about female slaves that have borne their masters children. Motherhood brought about a change in status to the slave. She was still a slave and under the power of her master and/or mistress, but she was afforded certain protections based on her newly attained status. Consequently, the female slave who bore children to her master had an ambiguous status. Like her childless mistress, she held a position in the household but was not guaranteed the full protection and benefits of one who was the primary wife. By giving her handmaid to her husband, the childless wife projected her own ambiguous status onto her slave by gaining a child through her while at the same time creating a split legal personality for the slave. The handmaid was the slave of the wife, wife of the husband, mother of the heir, but not able to benefit fully from her relationship with the husband or her son’s status as heir.

In sum, surrogacy was one way of solving the challenges of childlessness that created new problems within the household. The childless wife could secure her position within the household by giving her handmaid to her husband to produce an heir. But this resulted in the wife’s ambiguous status being projected onto the slave woman. Although she produced an heir, she is not the mistress of the house and her son holds a separate status. She is protected in that she cannot be sold, but she can be treated harshly and find herself demoted within the household order. Her son is the heir, but she gains nothing from that status. Her status is ambiguous. She is a slave that cannot be sold, a wife who has no power and a mother who will not be supported by her son. Under the stipulations outlined above, she is relegated to living as a slave and then released whenever her master, the father of her son, dies.

[1] Steinberg, Kinship and Marriage, 15.

[2] Sakenfeld, Just Wives, 12.

[3] Marsman, Women in Ugarit and Israel, 192.

[4] Katarzyna Gorsz, “Dowry and Brideprice in Nuzi,” in Studies on the Civilization and Culture of Nuzu, M. Morrison and D. Owen (ed.) (Winnona Lake, IN: Eisenbrauns, 1981), 181.

[5] It is not clear that concubines were always slaves. In the Hebrew Bible, the designation seems to refer to a wife of secondary status (M.E. Shields, “Concubine,” NIDB, 1:713-14).

[6] Marsman, Women in Ugarit and Israel, 105.

[7] LH §144 “If a man take a wife and this woman gives to her husband a maid-servant, and she bear him children, but this man wishes to take another wife, this shall not be permitted to him; he shall not take a second wife.”

[8] Marsman, Women in Ugarit and Israel,123.

[9] Marsman, Women in Ugarit and Israel,144, 442.

[10] Westbrook, “The Female Slave,” 215.

[11] Westbrook, “The Female Slave,” 215, 228.

[12] W Another piece of relevant information demonstrating how motherhood alters the status of the female slave is found in LH §119. The line describes what happens if a man sells his female slave to repay a debt. If he sells her, he is obligated to go back and redeem her from her new master and set her free. “If any one fails to meet a claim for debt, and sells the maid servant who has borne him children, for money, the money which the merchant has paid shall be repaid to him by the owner of the slave and she shall be freed”. Westbrook notes that while the right of redemption was widespread in the ANE, it was normally applied to family members, not slaves. But when the slave had borne children to the master, her status was altered to such a degree that, although still a slave, she was sufficiently regarded as a member of the family so as to benefit from the privilege of redemption. (Westbrook, “The Female Slave,” 217).

[13] Westbrook, “The Female Slave,” 216.


  1. Did practices, such as those you reference in the cases of Rachel and Leah, continue into New Testament times?

  2. Henry,

    Good question. I am unaware of any such practices in the first century. It seems that bigamy was much less practiced than in the time of the patriarchs. The evidence of Zechariah and Elizabeth in Luke may indicate that short of adoption, a childless couple remained that way.