CCAR RESPONSA
5760.8
Withholding Paternity Information from a Father
She’elah
A single Jewish woman is pregnant by a Gentile man she has known for a short time. The pregnancy was unplanned, but she is happy about it and plans to raise the child. However, she does not wish to tell the child’s father. They remain friendly, but she does not want to share custody. They are not currently involves in a relationship; in fact, the man is now in a relationship with another woman, which may result in marriage. She plans to tell the child about his/her father only when the child is old enough to ask directly. She wonders, however, if withholding this information is a Jewishly proper thing to do. (Rabbi Faedra L. Weiss, Indianapolis, IN)
Teshuvah
We assume that this woman will consult an attorney to determine her duty under the law to share this information with her child’s father. The rules governing parental obligations fall under the category of dina demalkhuta dina, the principle by which Jewish law accepts as valid and binding the legitimate acts of the civil government.[1] While the law of the state will ultimately dispose of this matter, the task before us is to consider how Jewish law and tradition would speak to it. On that score, we believe the answer is unequivocal: this woman has a moral obligation to inform the father of her child of the fact of his paternity.
We base our answer upon the following considerations.
1. Judaism teaches us that it is forbidden to deceive other people, even when the deception arguably would not result in palpable harm to them.[2] True, the tradition recognizes that there are times when an overriding value, such as peace within a marriage or a family, justifies a certain measure of deceptive behavior.[3] Yet those instances are rare; surely the general standard of conduct as taught by Jewish tradition is that honesty and truthfulness ought to guide our actions. One who wishes to act deceptively must satisfy a high burden of proof that this case is serious enough to warrant a departure from that standard.
2. We do not think that our case justifies such a departure. Indeed, it seems that the only value served by withholding information from the father is the mother’s desire not to share custody of the child with him. Yet under Jewish law she is not entitled to do this. The Mishnah speaks of mitzvot haben `al ha’av, obligations that the father owes to his son.[4] The Talmud[5] lists these as follows: the requirement to have his son circumcised;[6] to perform the mitzvah of pidyon haben;[7] to teach him Torah;[8] to find him a wife; and to teach him a trade. These texts refer in part to religious obligations that apply only within a Jewish context, and they reflect distinctions in gender roles that no longer make sense to us as Reform Jews. It is our practice to read such texts in an egalitarian way and in a way that does not make invidious distinctions between Jews and non-Jews in determining ethical duties, responsibilities that we as human beings bear toward other human beings. When we read the texts in this manner, they teach us that a parent is obligated to provide for his or her child’s basic needs, to help educate that child so that he or she may become a responsible member of human society. This duty is expressed as well in the halakhah‘s rules concerning the custody of children. In a situation where the minor child does not live together with both parents, each parent owes certain personal and financial obligations toward him or her.[9] These obligations are ultimately adjudicated by the beit din, the Jewish court, in accordance with the best interests of the child, yet it must be kept in mind that both parents figure into the court’s deliberations.[10] In other words, the father as well as the mother owes duties of care and support to this child, and it would be wrong to deny him the opportunity to meet those duties and thereby to fulfill his obligations as a parent.
What if the child’s father does not wish to share custody of or provide financial support for his child? He may renounce his obligations through the process of adoption, by which all parental duties are transferred to the adoptive parent or parents.[11] This renunciation, however, must be intentional. A father who does not know of the birth of his child cannot be said to have renounced his obligations toward that child. To put this another way: the mother is not entitled to be a “gate-keeper,” the sole arbiter who will determine whether the biological father can be a true father to the child he has helped to create.
3. The Mishnah also speaks of mitzvot ha’av `al haben, obligations owed by a child to his or her parents.[12] These obligations are summarized under the heading of the mitzvot concerning the honor and reverence that one must show toward one’s parents.[13] Obviously, a child cannot fulfill these mitzvot unless he or she knows the identity of the parent; it is therefore wrong to withhold that information from the child. In our case, the mother “plans to tell the child about his/her father only when the child is old enough to ask directly.” This approach places the mother’s needs before the child’s and creates an atmosphere of secrecy and shame for the child which is not the child’s responsibility. To withhold the father’s identity until the child is ready to verbalize a request for it is to withhold information that is vital to the child’s self-understanding. Each of us creates a narrative for ourselves, a story that expresses in the most personal sort of way our conception of our origin and place in the world. We begin this journey of self-explanation at a most early age. Children learn at a very young age that everyone is “supposed” to have a father and a mother. While there are many legitimate different family constellations, it is critical that the mother acknowledge and talk about this child’s situation, so that its particular situation will be a natural part of his/her own self-understanding and personal narrative. To do otherwise requires the child to invent or imagine a story, and the child will get a message that there is a secret around his or her origins. We think, therefore, that it is essential for the mother to communicate this information to her child as soon as possible.
4. The mother may, of course, argue that withholding information from the father serves her child’s best interests. We think, however, that in most cases the opposite is true. It is better for the child’s long-term emotional health when he or she has the opportunity to know both parents. We suspect, moreover, that the mother’s desire to withhold this information from the father has less to do with her child’s best interests than with her own unresolved issues concerning her relationship with him. As our prophets teach us (Jeremiah 31:28-29 and Ezekiel 18:2ff.), it is wrong to make children suffer for the sins of their parents.
NOTES
- For a discussion of this principle, see our responsum 5757.1. We argue that the validity of dina demalkhuta rests upon the fact that those who dwell in the “kingdom,” by virtue of their residence there, imply their willingness to accept the kingdom’s laws. This is especially true for those of us who are citizens of democratic political systems, who enjoy political rights and equality with all other citizens. Since the citizens of such a state make its laws, they accept in advance the validity of all legislation that falls into the purview of the state’s legitimate legislative power. While some laws, such as those that unfairly discriminate among citizens or that impede the free exercise of their civil and political rights, would not be accepted as “legitimate” under this doctrine, regulations concerning the legal obligations between parents and children are widely accepted as a valid exercise of the community’s power and jurisdiction.
- The concept is geneivat da`at, literally the “theft of the mind.” See BT Chulin 94a; Yad, De`ot 2:6 and Mekhirah 18:1ff; and SA CM 228:6.
- For example, in Genesis 18:13 God intentionally misquotes to Abraham Sarah’s remark in verse 12, in order to spare him embarrassment and to preserve peace between husband and wife. See BT Bava Metzi`a 87a and the final chapter of tractate Derekh Eretz Zuta. Nachmanides to Gen. 18:13 offers a less daring evaluation of God’s report, although he acknowledges that God’s statement does not reveal the whole truth.
- M. Kiddushin 1:7.
- BT Kiddushin 29a.
- Yad, Milah 1:1; SA YD 260:1.
- Yad, Bikurim 11:1; SA YD 305:1.
- Yad, Talmud Torah 1:1; SA YD 245:1.
- See BT Ketubot 65b; Yad, Ishut 12:14, and SA EHE 71:1. The father is obligated under Torah law to provide maintenance for his children until they reach the age of six, even if their mother has the means to support them. From that point on, the obligation is continued under rabbinic law, as an aspect of the general requirement to give tzedakah: the beit din can coerce the father to provide maintenance, just as it is empowered to coerce an individual to pay tzedakah according to his or her means.
- See SA EHE 82:7.Custody of the child usually resides with the mother. The father, however, may demand custody of his son when the boy reaches the age of six; this derives from the father’s duty to teach Torah to his son (see at note 8). On the other hand, the beit din can decide that the child’s welfare demands an alteration of any of these arrangements (Isserles ad loc.). This “best interests of the child” rule is rooted in a responsum by R. Shmuel di Medina (16th-cent. Salonika; Resp. Maharashdam, EHE, no. 123).
- On adoption, see Teshuvot for the Nineties (TFN), no. 5753.12, pp. 201-207.
- M. Kiddushin 1:7.
- BT Kiddushin 29a; Exodus 20:12 and Deut. 5:16; Leviticus 19:3. On the extent and the limitations of the mitzvah to render honor and reverence, see our responsum on adoption, TFN 5753.12, pp. 201-207.
- If needed, please consult Abbreviations used in CCAR Responsa.