Contemporary American Reform Responsa
35. Adopted Children and Their Biological
QUESTION: A number of adopted children have requested that
they automatically be told the names of their natural parents. They are prompted to do so for a variety of Jewish reasons. If the natural parents are Jewish, they wish to recite qaddish; in the various life cycle ceremonies they want to use the name of their biological parents. Furthermore, they want to be sure of not accidentally marrying a relative who is forbidden to them. What is the relationship of adopted children to their biological parents according to Jewish tradition? (Rabbi D. Gluckman, Olympia Fields, IL)
ANSWER: The entire question
of legal adoption by parents who are unable to have children for a variety of reasons is a modern matter. Formal adoption in the modern sense was known to the ancient Romans and others, but not to the ancient Jewish community. Jewish law, however, contains a great deal of discussion about children raised by those not their parents. In virtually all instances, these children were orphans brought into the home to be raised by relatives or friends. There is discussion about their status, names to be used, rights of such children, etc. Some of these matters have been discussed in an earlier responsum entitled “Adoption and Adopted Children” (W. Jacob, American Reform Responsa,#63).
When tradition deals with rearing orphaned
children, the question of parental names and inheritance and matters of concern. These adopted orphans also continue to have different rights within their new home which are distinct from those of any natural children who were in the household. In matters of inheritance it is clear that the orphaned child is entitled to anything left by the biological parents. On the other hand, unless special provisions are made in a will, the “adopted” children (in this case, orphans), do not possess the automatic right of inheritance of the biological children, yet provision can be made for them as a person may dispose of his estate as he wishes (B . B. 134a, 127b; Kid . 78b; Tur Hoshen Mishpat 279.1; Moreh Nivukhim 3.41; Yad Hil. Nahalot 6.1).
In the matter of qaddish, one view has stated that it is the duty of the
natural children to say qaddish for their biological parents. This commandment is incumbent upon them, while for adopted children the obligation is assumed. It is prompted by love and conscience, but it is not their duty (Jacob Colon, Responsa; Hatam Sofer, Responsa Orah Hayim #164). On the other hand, the earlier Isserles disagreed and stated that children have the same rights in this matter as biological children (Isserles to Shulhan Arukh Orah Hayim 118), as for example, in leading congregational services at the time of yahrzeit, etc.
If we turn to marriage and the fear of marrying a
relative, we must view this discussion in the perspective of earlier times; we were principally dealing with orphans who were sometimes scattered to various households due to poverty or accident. The likelihood of marriage to a forbidden relative, even under those circumstances, was considered too small to be considered a danger (Shulhan Arukh Even Haezer 4.26).
In a marriage of adopted children the ketuvah usually gives the name of
the adoptive parents and b’diavad was valid in a get (Shulhan Arukh Even Haezer 129.10). Those who were strict used hamgadlo with the name in the documents and possibly also on other occasions (Shemot Rabbah, 46 end; Isserles to Shulhan Arukh Even Haezer 129.10; Steinberg, Responsa on Adoption, p. 20). If the adoptive parents wish to preserve the family name of an orphan’s biological parents (if known), then these names may be used. In our times the names of these parents are known only to the court and the biological parents wish their name to be forgotten.
In all these matters ancient
Jewish law and customs, and modern American or Israeli law, are primarily concerned with the welfare of the child. Most decisions were made according to this principle (Aderet, Responsa #28; Radbaz, Responsa I, #123; Shulhan Arukh Even Haezer 82 and Pit-hei Teshuvah; The Law of Adoption,Israel, 1957).
Of course the
majority of modern adoptions deal with children who are not born of Jewish parents. Therefore, the various considerations raised by the questioner will not arise. When such a child is brought into a Jewish home, that child should be converted to Judaism and introduced to Judaism in the same way as any other young convert (W. Jacob, American Reform Responsa, #63). Although a convert may recite qaddish for non-Jewish parents, this is not obligatory (S. B. Freehof, Recent Reform Responsa, p. 137), nor obviously is there any obligation or desire to continue the former family name, so this question does not arise; this is also true as Jewish law considers a convert a new person without relatives (Yeb. 22a). The issue of marriage to a prohibited relative, therefore, is mute.
We must also concern ourselves with the
right to privacy of the biological parents. In most instances, social or family problems have led the biological mother (and sometimes the father) to release the child for adoption. The laws of most states protect the privacy of the natural parent/parents. The information possessed by the court is confidential and must not be released (based on Lev. 19.16; Yad Hil. Deot. 7.2). Such confidential information may only be divulged to save lives or to protect against serious injury and financial loss (Yad Hil. Rotzeah 1.13; Shulhan Arukh Hoshen Mishpat 426.1; Jacob Breish, Helkat Yaakov, III, #136.) We would, therefore, respect the privacy of the biological mother and father.
In conclusion, we would urge the adopted children
to view their adoptive parents as their natural parents and treat them in precisely the same way as biological children treat their parents. This course should be followed in every instance including the recitation of qaddish.
If needed, please consult Abbreviations used in CCAR Responsa.