Baby M and Judicial Discretion: Hard Cases in Halakhah

In the mid-1980s, William and Elizabeth Stern, unable to conceive a child, turned to surrogacy. They entered into an agreement with a woman named Mary Beth Whitehead, who would be inseminated with William’s sperm, carry the baby to term, and surrender parental rights after birth in exchange for a $10,000 payment. Initially, Whitehead agreed to the arrangement. But after giving birth to a baby girl, she found herself deeply attached to the child. Rather than surrender the baby, she fled with her. What followed was a dramatic custody battle that captured national attention.

The case forced the New Jersey Supreme Court to confront a situation for which there was no clear legal formula. On one side stood the surrogacy contract and the Sterns’ longstanding desire to raise a child. On the other stood Whitehead’s biological and emotional bond with the baby. Contract law seemed to point in one direction. Biology pointed in another. How should they proceed?

After overturning the trial court and invalidating the surrogacy contract on legal and public policy grounds, the judges concluded that “the child’s best interests determine custody.” The case could not be resolved through contract law alone. Although the surrogacy agreement itself was unenforceable, custody was nevertheless awarded to the Sterns on the basis of the child’s welfare, while Whitehead received visitation rights.

The Baby M case raises a broader question that extends far beyond family law. What should judges do when the law does not yield a clear answer? Is judicial discretion a legitimate tool of judgment, or does it inevitably compromise the integrity of the court?

The Sages confront a variation on this question in the context of monetary law. Imagine, says the Talmud (Bava Batra 34b–35a), that two litigants come into court, and each produces a valid-looking document, both dated the same day. Neither party has prior possession of the item under dispute and neither advances a stronger claim. As a result, the usual tools of adjudication are unavailable. In this case, Rav rules that the property is divided equally between the parties, avoiding the need for the court to choose between two equally plausible claims. Shmuel disagrees and introduces an alternative, shuda dedayanei, in which the judges award the property to one of the parties. Taken at face value, Shmuel’s proposal is startling. If the two claims are equally strong, on what basis can a court simply choose a winner?

One view, adopted by Rabbenu Tam (Tosafot, Bava Batra 35a s.v. shuda) and Naḥmanides (Ḥiddushei HaRamban, Bava Batra 35a), takes shuda literally: the judges are empowered to award the property at their discretion. The Talmud Yerushalmi refers to this doctrine as shuḥada dedayanei, “the bribery of the judges” (Yerushalmi Ketubot 4:10). Of course, as both Rabbenu Tam and Naḥmanides point out, the Yerushalmi does not mean that in such unresolved cases, bribery is actually permitted. Still, the Yerushalmi is registering its discomfort with allowing the court to decide on its own. When a court decision is not anchored in evidence, it seems arbitrary.

A second approach sharply limits the scope of shuda. Rashi explains that the judges do not in fact choose at random (Rashi to Ketubot 85b s.v. shuda dedayanei). Instead, they look at the broader context of the case – at factors such as the relationship between the parties and the circumstances surrounding the dispute – and use that information to determine which litigant is more likely to have received the property. On this reading, shuda does not mean that the court suspends judgment altogether, but it does mean that the judges issue a ruling when they can identify only the most likely outcome. Rashbam takes this reading of the sugya a step further (Rashbam to Bava Batra 35a s.v. shuda dedayanei). Like Rashi, he allows judges to rely on contextual clues. But he understands that on the basis of those clues, the judges reach a definite conclusion about ownership. For Rashbam, shuda is not an approximation but a real determination.

Each interpretation comes at a cost. Rabbenu Tam and Naḥmanides acknowledge that the evidence does not permit a clear decision, which can lead to an allocation that undermines the court’s credibility. For Rashi, the court does base its determination on some evidence, but he still allows the court to decide the case without full clarity as to who the rightful owner is. Rashbam avoids that difficulty by treating the evidence as sufficient for certainty, but he risks claiming more for the evidence than it can support. In different ways, all three face the same tension: the need for judges to arrive at a decision while acknowledging the limits of what they actually know.

A careful reading of a later authority, the Tur, suggests that he recognized this tension (Tur, Ḥoshen Mishpat 240). The Tur adopts Rashbam’s position and treats shuda as a genuine determination of ownership. As commentators note (Beit Yosef, Ḥoshen Mishpat 240), he does not cite his father, the Rosh (Responsa 77:1), who follows Rabbenu Tam in reading shuda as a case of pure judicial discretion. This omission is striking and suggests that the Tur was sensitive to the risk of judges awarding the item without sufficient evidence. But if he is concerned with the integrity of the court, how can he justify ruling like Rashbam, who allows for a definite decision without firm evidence?

This may be why the Tur adds a further limitation. Drawing on Rabbenu Ḥananel and Rabbenu Barukh, as cited in the Mordechai (Mordechai to Ketubot §243), he restricts shuda to cases judged by a true expert. These authorities do not spell out their reasoning explicitly, but within the Tur’s framework the logic is easy to reconstruct. Ordinarily, a judge rules by applying legal texts and formal proofs to the case at hand. In cases of shuda, however, those tools have been exhausted. The judge must rely on judgment alone and still reach a more or less definite conclusion. That sort of decision cannot be made lightly; it requires familiarity with how transactions typically occur, how documents are drafted, and how people usually behave in disputes. Only the most experienced judges have developed the judgment needed for such a task. Anything less risks giving the impression that the court is arbitrarily favoring one party. This limitation helps ensure that shuda remains – and is seen as – a highly restricted form of judgment, one that depends on genuine expertise. For the Tur, shuda is less a tribute to judicial power than a reminder of its limits. Where there is clear evidence, the court rules accordingly. Where there is no clear evidence, only experienced judges may decide the case without undermining the integrity of the law.

The Baby M case raises a difficult question: what should judges do when ordinary legal tools do not yield a clear answer? The sugya of shuda dedayanei suggests that the Rabbis recognized a similar tension. Sometimes the evidence does not clearly resolve the case, but the court must make a decision anyway.

But the Talmud also recognizes the danger of such decisions. Judicial discretion can easily shade into arbitrariness or overconfidence. That is why the Tur limits shuda to true experts – judges with deep familiarity not only with legal texts, but with the realities of human behavior and the patterns of ordinary life. When clear evidence is unavailable, instinct alone is not enough. In such cases, in the words of the NJ Supreme Court ruling, “considerable experience in these matters” is essential.

That insight extends far beyond the courtroom. We are often tempted to resolve uncertainty too quickly, to turn partial evidence into firm conclusions. The challenge, in life as in law, is not simply to judge. It is to judge responsibly while remaining honest about the limits of what we actually know.