TWO ADOPTION PROBLEMS

QUESTION # 1:

A woman divorced her husband. She divorced him in court but has not yet received her Get. She became pregnant and states that the child belongs to her lover. She gave birth to the child and her sister adopted him. The sister now wishes to circumcise the child and give it a Jewish name. Since she did not receive a get from her husband, the child could easily be considered a mamzer, and therefore the question of circumcision is involved and all the problems of mamzeruth. In fact, the mother asked if she could have a Pidyen ha-Ben. (Asked by Aryeh Lev, New York, New York)

ANSWER:

IT IS INTERESTING that Rabbi Soloveitchik said that he would hesitate about calling this child a mamzer. I wish he would publish his response. His students justly admire him, but he deprives the rest of us from seeing his answers in writing.

The persons who asked you the question assume a principle which is not correct. They assume that a mamzer is out of the general orbit of Jewish law and that, therefore, it is a question whether circumcision, etc., are required in his case. But the laws concerning the mamzer are actually entirely different.

A mamzer is restricted only with regard to certain specific marriage laws. He may not marry into a normal Jewish family, but on the other hand, he may marry a slave and thereby a mamzer’s family can be purified (Kiddushin 69a). But beyond these two marriage laws, a mamzer is like all other Israelites and all the laws apply to him. For example, he can be a witness in a Jewish court (Choshen Mishpot 34:21, based on the debate in Baba Kama 88a and the Tosfos there). Also it is specifically declared that he must be circumcised even on the Sabbath (of course if it is the eighth day). In fact, Ezekiel Landau in his Noda b. Yehudah, II, Yore Deah 182, makes it as a general principle that a mamzer is in duty bound to obey all the commandments (with the marriage exception which I have mentioned). This statement of Ezekiel Landau’s is well known. It is stated also by Isaac Lamperonti in his Pachad Yitzchok, under the word mamzer.

So there is no question about the child’s being circumcised. That is mandatory (a mitzvah). Also there is no question about the Pidyen ha-Ben, except that with regard to the Pidyen ha-Ben certain difficulties may arise. It is the responsibility of the father to arrange the Pidyen ha-Ben. In this case, then, this man (the “lover”) would have to acknowledge the child as his and arrange for his redemption.

QUESTION #2:

A couple adopted a child. They do not know the source of the child. When they got the child the father had the boy circumcised for the purposes of gerut. Normally, sometime later, a Bes Din is brought together and the child is given mikveh and it is a kosher Jewish child. There are no problems there. In this instance they slipped up on mikveh. It was never performed. Now the boy is 121/2 years old and is being prepared for Bar Mitzvah. The parents are Orthodox Jews and they want to do what is right in accordance with law. However, they never informed this child that he was adopted. They still do not want him to know that he is an adopted child. They feel they may want to tell him at a much later age or never tell him at all. It is a forgotten matter in the family. The father is prepared to go to mikveh with his boy at this time on the excuse that they want to prepare themselves properly for the Bar Mitzvah at the syna-gogue. However, as far as this boy is concerned he is now a bar-daas and he must know that if it is for gerut he must have kavanah.

ANSWER:

THE QUESTION amounts to this: If a tevillah is not consciously declared to be a tevillah for the purpose of conversion, is it legally such or must the child be told that it is a tevillah for conversion? But if he were told he would find out what his adopting parents do not want him to find out, i.e., that he is an adopted child and born a Gentile.

Of course, if I were answering the question as a liberal, I would say that the tevillah is not indispensable; it can be omitted entirely; that Rabbi Eliezer in Yevamos 46a said that just as the patriarchs became Jews simply by circumcision and did not take the ritual bath, so if a proselyte is circumcised and does not take the ritual bath, he is a full Jew because of his circum cision. But, of course, such a decision would not satisfy an Orthodox rabbi, since the final state of the law is that a preselyte requires both circumcision and tevillah.

In that case, I would raise another question: This child is going to be bathed in order to complete, belatedly, the process of conversion. Does he need to be told the purpose of this tevillah? This depends on the larger question of whether Mitzvos need kavanah, conscious intention, or not. See the debate summarized in my Responsa Literature, page 259 ff.

But aside from the question of whether he needs kavanah for the tevillah to be legal, the law is very clear that if a proselyte takes a tevillah for any purpose other than consciously for proselytizing, that act of tevillah, even though not intended for this purpose, is nevertheless valid for proselytizing. The law is in Yore Deah 268:3, namely, that if a candidate for conversion does not take the bath for the purpose of being proselytized (as, for example, if the man takes the bath to be cleansed of a seminal impurity, or the woman candidate takes the bath for menstrual purification) then even so this bath is valid also for the purpose of conversion. Therefore if the father and the son go to the mikvah together and he does not tell the son that this bathing is for the purpose of completing the conversion, the bath is valid nevertheless for this purpose.

It should be noted, however, that Ezekiel Landau in his commentary Dagul Mirvava to the Shulchan Aruch {ad. loc.) says that when an infant is converted the tevillah must be consciously for the purpose of conversion (i.e., with kavanah). His reasoning is as fol lows: The true essence of the conversion process is the explanation by the Bes Din to the candidate of the commandments and their acceptance by the candidate. The ceremonial rituals are merely additions (necessary but not indispensable, at least with regard to the tevillah). Hence, the law is given in the Shulchan Aruch that if the tevillah is taken for any other purpose it is valid also for conversion. But this easement of the law cannot apply to an infant when converted because he cannot understand the explanations of the commandments and, therefore, the tevillah is not an “addition,” but of the essence. Hence the tevillah in the case of the infant must be with kavanah. But in the first place, Landau’s requirement of kavanah applies to the Bes Din, not to the candidate, i.e., the infant himself. Besides it refers only to the period of infancy, whereas in this case a boy on the verge of Bar Mitzvah certainly knows the meaning of the Mitzvos. Finally, Ezekiel Landau’s statement is only a solitary one. In general we can rely on the law as stated in the Shulchan Aruch that the tevillah need not be for the express purpose of conversion in order to be valid for conversion. Therefore the boy need not learn that he was adopted and converted.