Responsa

CARR 261-263

CCAR RESPONSA

Contemporary American Reform Responsa

174. Christian Decorations in a Business

Office

QUESTION: A Jewish employee of an insurance firm has

protested against the planned Christmas decorations. He is one of eight employees in his office.

Most of the offices in that business building are decorated for the holiday of Christmas. Is there

anything in the halakhah which might encourage him to object? What should our attitude

be toward Christmas decorations in non-public places? (Rabbi J. Brown, Long Beach,

CA)ANSWER: This question, first of all, involves the Jewish attitude towards

Christians and Christianity. Ever since Talmudic times, Christianity as well as Islam have been

viewed as monotheistic religions. Therefore, none of the strictures which the Bible and

the Talmud place upon idolatry are relevant for Christianity. The

Talmud began to consider pagans of its day differently from the ancient heathen; it

treated Christians similarly. The precise attitude toward Gentiles during the five centuries of

Talmudic times depended upon specific circumstances. Thus, Simeon ben Yohai could be

uncomfortably negative (J. Kid. 66c, with full reading in Tosfot to A. Z. 26b;

Soferim 15.10). On the other hand, it was possible for Meir and Judah Hanasi to have warm

friendly relationships with Gentiles (B. K. 38a). We comfort their dead, visit their sick, help their

poor, etc. (Git. 29b; Tur Hoshen Mishpat 266). R. EIiya bar Abba said in the name of R.

Johanan that Gentiles outside the land of Israel were not idolaters. They merely continued to

follow the customs of their fathers (Hul. 13b). By the Middle Ages, Christians were

generally no longer classified as idolaters (Meir of Rothenburg, Responsa #386). Rabbi

Isaac of Dampierre placed Christians in the category of Noachides and not of pagans (Tosfot

to San. 73b and Bek. 2b). Menachem Meiri (1249-1306) went further by stating that

Christians and Moslems who live by the discipline of their religion should be regarded as Jews in

social and economic relationships (Bet Habehirah to A. Z. 20a). Maimonides stated that

Christians or Muslims should be considered as gerei toshav. They would assist in the

preparation for the Messianic era (Yad Melahim 8.11 and Teshuvah 3.5; Edut. 11.10,

etc.). He expressed harsher views at other times and considered Christianity idolatrous

(Yad. Hil. Avodat Kokhavim 9.4, etc.). A French Tosafist of the same period expressed

similar views, and so we see that they were not restricted to Sephardic Jewry (Bekh. 2b).

Maimonides dealt with Christianity in the abstract in contrast to the authorities who lived in a

Christian world. A French Tosafist of the same period expressed positive views akin to Meiri, and

so we see that this point of view was not restricted to Sephardic Jewry (Bekh. 2b). This point of

view- became normative, and Christians as well as Moslems were considered in the same

category as gerei toshav. This view was accepted by Caro in the Shulhan Arukh

(Yoreh Deah 148.12; also Tur Yoreh Deah 148) and most forcefully by Mosheh Rifkes,

author of the Beer Hagolah to the Shulhan Arukh (Hoshen Mishpat, 425 at the

end). The statement is remarkable because the author himself had fled Vilna to Amsterdam from

anti-Jewish riots. He stated: “The sages made reference only to the idolaters of their day who did

not believe in the creation of the world, the Exodus, God’s marvelous deeds, or the divinely

given law. But these people, among whom we are scattered, believe in all these essentials of

religion. So, it is our duty to pray for their welfare, and that of their kingdom, etc.” The status of

the Gentile in the general application of Jewish law had, therefore, changed and this positive

opinion of Gentiles was reemphasized at the beginning of the modern era by Emden, Bacharach,

Ashkenazi and other Orthodox authorities (See A. Shohet, “The German Jew, His Integration

Within Their Non-Jewish Environment in the First Half of the Eighteenth Century,” Zion,

VoI. 21, 1956, pp. 229 ff) as well as Mendelssohn (“Schreiben an Lavater,” Schriften,

1843, Vol. 3, pp. 39 ff). As we turn to the specific question of decorations, we

must note that it would obviously be wrong for a Jew to worship symbols which are sacred to

Christians, especially as we do not agree with their trinitarian concept of God (Tosfot to

San. 63b; Shulhan Arukh Orah Hayim 156 and note of Isserles). In our instance, the

decorations used are a general reminder of the holiday season, but they are rarely specifically

religious. Christmas trees, wreaths, poinsettias, Santa Claus, etc. are not objects of worship. In

fact, many devout Christians reject them as they have detracted from true religious devotion, as

well as the importance of Christmas. We can, therefore, find little objectionable to such

decorations in an adult business setting. Our feelings, of course, would be different if we were

dealing with a public institution, or especially a public school. That represents an infringement of

religious liberty and the separation of church and state in our land. It would also be an effort to

influence children toward the majority religion, and we would object to that. We might

also look upon this entire matter by investigating the rights of a minority versus the majority. That

has nothing to do specifically with the relationship of Jews and Christians. Let us briefly look at a

Jewish view of minority rights within a totally Jewish setting. If an injustice has been done and

not been rectified, then an individual may interrupt synagogue services and demand that

attention be given to his case. This right, probably of Palestinian origin, was reaffirmed by a

taqanah of R. Gershom (Finkelstein, Jewish Self Government, p. 119) and was

also reported in Medieval Spain (Adret, Responsa IV, #56). Its abuse led to some

objections and the curtailment of this right (Sefer Hassidim, ed. Margolis, #107 f;

Solomon Luria Responsa #20). Under other circumstances, however, the minority is

required to adjust itself to the majority. For example, if an individual comes to a community and

finds that their customs of reciting prayers or celebrating a holiday differ from his, he must abide

by the customs of that community and can not make a nuisance of himself (J. Pes. 30d;

Yad Hil. Yom Tov 8:20; Shulhan Arukh Orah Hayim 468; 498 also Peri

Hadash). Actually, the question of minority rights was only urgent in those medieval lands

which restricted the Jewish community to one synagogue and that threat may bring redress of

complaints. A threat of defection by a large segment of the community often guaranteed a fair

hearing. In our case, which of course is not a Jewish setting, the individual may seek some

adjustment in the decorations, but there would be no basis for absolute objection. In summary,

the decorations involved in this business office are not religious and are not used for worship,

and so the Jewish employee has little grounds for objection. He may protest and thus assure

sensitivity to a minority point of view.December 1979

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 195-196

CCAR RESPONSA

Contemporary American Reform Responsa

132. Non-Jewish Voices in Congregational

Choir

QUESTION: May non-Jewish voices be used in a synagogue

choir? Would there be a distinction whether the choir is visible or invisible, or composed of male

or female voices? (S. J. S., Akron, OH)ANSWER: Traditionally, from Talmudic

times to the late Middle Ages, solo or choral voices in the synagogue were limited to males, for it

was felt that female voices might lead to sexual arousal of the male worshipper (Ber. 24a; Sotah

48a; Shulhan Arukh Orah Hayim 75; Hatam Sofer Hoshen Mishpat #190; L.

Löw, Die Lebensalter, p. 311). The Reform Movement has insisted in the

equality of men and women since the nineteenth century (W. G. Plaut, Report to the Breslau

Conference, The Rise of Reform Judaism, pp. 253 ff), and makes no distinction between

male and female voices or the emotion which they might arouse in the opposite sex. These

concerns have dealt only with Jewish singers. Non-Jewish singers have only recently been used

in synagogue choirs. Despite their frequent use, we feel that every effort should be made to

organize a Jewish choir. Even if the vocal quality of its voices is limited, the kavanah of

such a choir will add beauty to the service. It should be possible to organize a Jewish choir even

in small congregations. If this is not possible, then we must view the non-Jewish choir member

like any other non-Jews participating in a Jewish service. When we dealt with non-

Jewish participants in a Jewish service earlier, we insisted that such participation be limited to

sections which were not essential to the service (W. Jacob, American Reform Responsa,

#6) . All public services must be led by Jews, and it would be inappropriate for a non-Jew to lead

a service from the pulpit. We may, however, look at a choir in a somewhat different

light. We would have no objection to a non-Jew attending a Jewish service and worshipping

alongside a Jew. From the days of King Solomon onward (I K, 8.41 f), non-Jews have been

welcomed at Jewish services and their sacrifices could be brought alongside those of Jews (Men.

73b). As we consider prayer to be a substitute for a sacrifice, there is nothing wrong

with a non-Jew reciting the traditional words of prayer alongside those of a Jew, especially

Christians who have been considered benei noah since the early Middle Ages

(Yad Hil. Melakhim 2; Moreh Nivukhim 1.71; Tosafot to Bekh 2b). There would be

no objection to non-Jewish choir members in a choir which sings with the congregation in the

general congregational worship. Let us now look at the choir in its role of presenting

solo pieces in which no congregational participation is anticipated. If those pieces are not a major

part of the liturgy, and do not deal with essential matters of Jewish belief or practice, then we

would permit non-Jewish choir members to sing them, just as we would permit a non-Jewish

layman to recite such a prayer as part of a service. The line of division is between the essential

elements of the service and other segments. We continue to feel that every effort

should be made to have Jewish choir members, even if the quality of their voices is less

desirable. If no Jews are available, then it would be possible to use non-Jews, within the

limitations mentioned.January 1985

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 49

CCAR RESPONSA

Contemporary American Reform Responsa

29. Naming an Uncircumcised

Child

QUESTION: May we name an uncircumcised male child in the

synagogue? In this case the child was not circumcised as the mother has been influenced by

current medical fashion which indicates that circumcision may not be necessary for health

reasons. She fears that circumcision may actually harm the child. (Rabbi R. Raab, Wantagh,

NY)ANSWER: Let me refer you to a rather recent responsum, “The Circumcision of

Infants,” 1982, (American Reform Responsa) which indicates that we consider the

circumcision of male infants an essential and fundamental commandment. Of course those who

are not circumcised would still be considered Jews (San. 44a; David Hoffmann, Melamed

Lehoil Yoreh Deah #79; C.C.A.R. Yearbook, 1890, pp.118 ff; S. B. Freehof,

Reform Jewish Practice, Vol. I, p. 113; S. J. Maslin, Gates of Mitzvah, pp.118 ff).

Current medical fashions are irrelevant for us as we consider circumcision to be a religious rite,

not a health matter. Unless there is a serious medical problem, all male children should be

circumcised on the eighth day. Circumcision remains for us as the sign of the covenant followed

by Judaism since the days of Abraham, our Father. As this boy will be raised as a

Jew, the lack of circumcision will embarrass him throughout life. Furthermore, if the operation is

postponed, it will only become more difficult and painful. We urge that every effort be

made to convince the parents that the boy should be circumcised. Such a youngster should

not be named at a synagogue service and everything should be done to assure his

circumcision.August 1986

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 505-507

CCAR RESPONSA

American Reform Responsa

159. Surrogate Mother

(Vol. XCII, 1982, pp. 205-207)QUESTION: What is the status of a child born to a surrogate mother who has been impregnated through artificial insemination with the sperm of a man married to another woman? The child will eventually be raised by the husband and his wife. (J.Z., New York City)ANSWER: We must inquire about the Halacha and the use of surrogate mothers, as well as the status of the child. The Talmud and later Rabbinic literature seem to have dealt with a subject akin to the question of a surrogate mother when they discussed pregnancies which were not caused by intercourse. The Rabbis felt that a girl could conceive by taking a bath in water into which male semen has been discharged (Chag. 14b); in other words, without intercourse or penetration. This line of thought has been continued by some later commentators and respondists (Eibeschutz, Commentary to Yad, Hil. Ishut 15.6; Ettlinger, Aruch Laner to Yev. 12b). The medieval author of Hagahot Semak, Perez ben Elijah of Corbeil, felt that a woman should be careful and not lie upon linen on which a man had slept so that she might not become impregnated by his sperm (Joel Sirkes to Tur, Yoreh De-a 195). Here we have instances of conception through an unknown outside source, and this was not considered to cause any halachic problem for the woman or the child, who was legitimate. Yet there is a striking difference between these situations and ours, as the child in question there was raised by its natural mother while ours will be raised by other parents. Furthermore, there is a commercial aspect in our situation, as the surrogate mother presumably has been paid for her efforts. A Biblical parallel seems to exist in the tales of the Patriarchs (birkayim, Gen. 30:3, 50:23) as Hagar was given to Abraham by Sarah so that there would be a child. Similarly, Rachel gave Bilhah to Jacob. In both instances the primary wife reckoned the child as her own and was able to accept (as Rachel) or reject (as Sarah) it. The differences here, however, are as follows: 1. the child and biological mother were part of the same household and family; and 2. the biological mother continued to play a major role in the life of the child. There are also some problems with an apparent Talmudic parallel, i.e., the situations of a concubine, whether of a temporary or permanent nature (see the responsum “Concubinage,” #133 above). These women bore the children of a man who usually was already married to another woman as his primary wife, but the concubines raised the children themselves. There is nothing then akin to our problem in the literature of the past. A vague example in Noam (vol. 14, pp. 28ff) actually deals with organ transplants, in this case ovaries. The midrash which dealt with the transfer of a fetus from Leah to Rachel and vise versa (Targum Jonathan to Gen. 30:12; Nida 31a; Ber. 60a) is also not relevant, as the parents seemed unaware of this. We would, therefore, have to treat the use of a surrogate mother as a new medical way of relieving the childlessness of a couple and enabling them to fulfill the mitzvah of procreation. It should cause us no more problems than modern adoptions which occur frequently. There, too, the arrangement to adopt is often made far in advance of birth, with the complete consent of one or both biological parents. Here we have the additional psychological advantage of the couple knowing that part of the genetic background of the child which they will raise as their own. This may prove helpful to the adoptive parents and, at a later stage, to the child. If we were to treat this child as the offspring of a concubine or the result of a temporary liaison between a man and an unmarried woman, there would be no doubt about its legitimacy. The issue of Biblical and Rabbinic Arayot does not arise. We should look at the halachic view of artificial insemination with a mixture of sperm as is common practice. The majority of the traditional authorities consider such children legitimate (Nathanson, Sho-el Umeshiv, part 3, vol. 3, #132; Uziel, Mishpetei Uziel, Even Ha-ezer, #19; Walkin, Zekan Aharon, Even Ha-ezer 2, #97; Feinstein, Igerot Mosheh, Even Ha-ezer, #10). Waldenberg (Tsits Eliezer, vol. 9, no. 51.4) considered such children to be Mamzerim. Additional discussion of the different authorities may be found in vol. 1 of Noam (1958). S.B. Freehof also considered them legitimate (“Artificial Insemination,” #157 above), but Guttmann was cautious (see #158 above). We would agree that there is no question about the legitimacy of such children, as long as the surrogate mother is not married. However, we realize that problems still exist in civil law in various states. It is more difficult when we consider a married surrogate mother. Different factors are involved. On the positive side, we have the mitzvah of procreation to fulfill. Certainly, that mitzvah ought to be encouraged in every way possible. It is for this reason that both adoption and artificial insemination have been encouraged by traditional Judaism and Reform Judaism. In a period when the number of Jewish children has declined rather rapidly, we should do everything possible to make children available to families who wish to raise them. Problems are raised by the marital status of both couples in civil law and Halacha. Is this to be considered adulterous or not? Certainly, under normal circumstances sexual relations between a man and a married woman would be adulterous. The fact that the woman with whom the relationship is carried on has a husband who is willing to permit it makes no difference. In this instance however, insemination would be conducted artificially and no sexual penetration would occur. It would, therefore, not differ materially from circumstances under which artificial insemination with sperm from an unknown donor takes place. In that case, too, the donor may very well be married and certainly the woman recipient is married. This form of artificial insemination has been accepted by us (see #157-158 above), by Freehof, and with some reservations by Guttmann. At least two of three Orthodox authorities (Baumol, Emek Halacha, #68; Schwadron Maharsham, vol. 3, #268) have permitted this, too, however with reservations. We would therefore not consider the use of a married surrogate mother as adulterous, as the beginning of the process is akin to artificial insemination. We would therefore hesitantly permit the use of a married surrogate mother in order to enable a couple to have children and await further clarification of medical and civil legal issues.Walter Jacob, ChairmanLeonard KravitzIsaac NewmanHarry RothRav SoloffBernard Zlotowitz

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 205-206

CCAR RESPONSA

New American Reform Responsa

131. Assuring the Status of a Child

QUESTION: A child, a member of my congregation, has a Jewish father and a non-Jewish mother. I understand that in accordance with the decision of patrilineal descent this child is potentially Jewish if appropriate action is taken by the family, i.e. berit, a naming, a Jewish education. The couple, however, feels that there is a period of uncertainty therefore in the child’s life, and they wish to remove that uncertainty about his status. How may this be done? (Fieda Rosenfeld, New York NY)

ANSWER: The resolution on patrilineal descent (W. Jacob (ed) American Reform Responsa Appendix p 547) was designed to provide complete equality between men and women as we have done in all other matters connected with Reform Judaism. Furthermore it was intended to meet the different conditions of our own time when descent and a cohesive community no longer guarantee Jewish identity. Therefore we have placed a vigorous emphasis upon commitment to Judaism on the part of the individual in accordance with his/her ability and age. This has meant that from an adult we expect participation in Jewish life, and from a child education towards such participation. A number of responsa have discussed both the rationale behind the resolution as well as problems associated with the resolution (W. Jacob Contemporary American Reform Responsa#38-42; 59-62; 96).

If parents wish to remove any doubt, and this may be desirable for a variety of reasons, they may do so through a formal gerut (conversion). By taking this step either at the time of the berit milah or later they will assure that no one can question the Jewish identity of their child. We would, of course, continue to stress the need for a Jewish education and for later involvement in the Jewish community for the infant ger.

September 1989

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 441-445

CCAR RESPONSA

American Reform Responsa

145. Status of Children

(1980)

QUESTION: The child of a Jewish mother and Gentile father is normally considered as Jewish. For how many generations does this Jewishness continue, if in the succeeding generations the mothers, though not practicing Jews, are the daughters of Jewish mothers? (Rabbi Simeon J. Maslin, K.A.M. Congregation, Chicago)

ANSWER: As the questioner has stated, Jewish tradition is quite clear on the status of children born to a Jewish mother and a Gentile father: That child is Jewish (Yev. 45b; Tur, Even Ha-ezer 4; Shulchan Aruch, Even Ha-ezer 4.5ff). Nothing would have to be done by these children in order to be accepted into the Jewish community, although–practically speaking–some authorities, both ancient and modern, would encourage study and education on their part. There would be no obstacles in the way of such children marrying other Jews or participating in any way as Jews, provided that they wished to be recognized as Jews. If they held other religious beliefs, they would be considered as apostates and the rights and privileges accorded to them would depend upon the particular circumstances (Zimmels, Die Marranen in der rabbinischen Literatur, pp. 21ff; Rufeisen v. Minister of Interior, 1962-16-P.D. 2428; Schereschewsky, Dinei Mishpacha,pp. 81ff).

We must now consider two distinct sets of circumstances under which this question may arise. Let us first treat apostates or Marranos who may have returned to Judaism after one or more generations. This problem received considerable discussion over a period of centuries. After that, we will deal with the modern circumstance in which there has been an intermarriage, but without the adoption of or inclination to adopt another religion.

Let us begin with the status of apostates and their children. We should remember that the attitude toward apostates has fluctuated within the Rabbinic tradition. The final view of the Shulchan Aruch is clear, and has generally been accepted since the 16th century; but other points of view also prevailed from time to time. In the Gaonic period, the Geonim were divided both on the matter of what the apostate must do when he returns, and whether he should be considered as a Jew. These views also determined whether their children were to be considered as Jewish. Hai Gaon (as quoted by Adret, Responsa VII, #292) felt that an apostate could not be considered as a Jew. Centuries later, the rabbis of the Mediterranean basin had to face the problems of the Marranos (Anusim). Their attitudes differed greatly and may be summarized under five headings: (1) Apostates were Jews who had sinned, but nevertheless Jewish (Isaac bar Sheshet; Simon ben Zemah of Duran, but on some occasions he did not grant this status; Solomon ben Simon Duran; Zemah ben Solomon); (2) Those who considered the apostate as Jewish only in matters of matrimony (and so their offspring were Jewish), but not in any other area (Samuel de Medina); (3) Marranos (Anusim) were non-Jews in every respect, including matters of marriage; their children were not considered to be Jews (Judah Berab, Jacob Berab, Moses ben Elias Kapsali, etc.); (4) An apostate is worse than a Gentile (ben Veniste, Mercado ben Abraham); (5) Descendants of the Marranos who have been baptized are like Jewish children who have been taken captive by non-Jews, and their children are Jewish (Samuel ben Abraham Aboab). All of these references and excerpts from the relevant literature may be found in H.J. Zimmels, Die Marranen in der rabbinischen Literatur,pp. 21ff.

Some of the authorities cited above would terminate the Jewishness of the child with the first generation. Others would continue it. The most generous of all is Solomon ben Simon Duran (Rashbash, Responsum #89), who stated that such children would continue to be considered Jewish forever into the future, as long as the maternal line was Jewish. He also felt that nothing needed to be done by any generation of such apostates when they returned to Judaism: no ritual bath nor any other act was considered necessary or desirable. In fact, he emphasized that no attention be given to their previous state, for that might discourage their return. Rabbenu Gershom gave a similar view and urged the quiet acceptance of all who returned to Judaism (Machzor Vitry, pp. 96 and 97).

The other extreme has been presented by Rashi (in his commentary to Kid. 68b and Lev. 24:10). He felt that any returning apostate or the children of a Jewish mother who had apostacized were potentially Jewish, but must undergo a process akin to conversion if they wish to become part of the Jewish community. That point of view was rejected by most later scholars (as, for example, Nahmanides, in his commentary to Leviticus 24:10; Shulchan Aruch, Yoreh De-a 268.10f; Ezekiel Landau, Responsa, #150, etc.). We, therefore, have two extremes in the Rabbinic literature; both, of course, represented reaction to particular historic conditions.

Solomon ben Simon of Duran wished to make it easy for a large number of Marranos to return to Judaism. Unfortunately, this did not occur; even when it was possible for Jews to leave Spain, the majority chose to remain. Rashi’s harsh statement probably reflected his generation’s attitude toward the small number of apostates who were a thorn in the side of the French community. Normative Rabbinic Judaism chose a middle path; it accepted the child of an apostate as Jewish, and encouraged the child’s return along with some studies, but without a formal conversion process.

The modern State of Israel has taken a somewhat different position on apostates. For purposes of the Law of Return, it does not recognize an apostate who remains a member of another religious faith. Such individuals would not qualify for automatic entry into Israel under the Law of Return (Rufeisen v. Minister of Interior, 1962-16-P.D. 2428). The latest amendment to the Law of Return retained this interpretation (Law of Return, Amendment No. 2, March, 1970).

Modern cases likely to come to our attention involve entirely different circumstances. We would generally deal with a mixed marriage in which no conversion has taken place; there would also be no attempt to conceal the Jewish identity of the mother or her children. In many such cases the children receive no formal Jewish education and are only vaguely aware of any Jewish identity, perhaps through the celebration of a holiday or some other random act. If the daughter of such a union also married a Gentile and this pattern continued in subsequent generations, what will the status of such offspring be?

We must again state that we are concerned solely with individuals who remain without non-Jewish religious identification. If they have converted to Christianity, then we would consider them and their children as Christian, in contrast to our tradition. In this we would follow our earlier decision and that of the Israel, courts (“Apostate Proselyte,” CCAR Responsa, 1979; Rufeisen v. Minister of Interior, 1962-16-P.D. 2428). We could not consider such individuals akin to the Marranos, as no duress has led them to Christianity, but they have taken this step of their own volition.

If the offspring have remained without formal religious identification through the generation–which is perfectly possible in contemporary America–then we would follow Solomon ben Simon of Duran with modification. We would recognize the potential Jewishness of such offspring forever into the future, but we would insist on some form of education in order to understand Judaism and to express a commitment to it. No formal conversion nor any other rite would be necessary for the acceptance of such individuals, but a sincere interest and intent are required. We may then summarize that we would accept children of mothers who are presumed Jewish despite apostasy or intermarriage on into the future, without any limitation to the generations which have passed. It would make no difference whether they have nominally adopted another religion for the sake of safety or whether they have remained without formal religious identification. In both cases, we would insist on some education and commitment before full acceptance into the Jewish community could occur.

Walter Jacob

See also:

S.B. Freehof, “Status of Apostates (Children and Adults),” Recent Reform Responsa, pp. 120ff.

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 298-300

CCAR RESPONSA

Contemporary American Reform Responsa

202. Parental Obligation to a Severely Retarded

Child

QUESTION: A couple with two healthy, normal children has a third

child who is severely malformed and retarded. The child is not aware of people around him, and

his intelligence is limited to a few reflexes. His face will occasionally form what appears to be a

smile, and if food is placed in his mouth he will swallow by reflex. There is no hope for a future

beyond this, however. The child has, for several years, simply lain in a fetal position in a crib in a

nursing home. Do the parents have a continued obligation to visit this child or is it sufficient that

they see to it that he is cared for in the institution where he now resides? Does the tradition

provide some guidelines for determining the degree of medical care to be given to this child in a

crisis? Physicians are generally surprised that the child has lived this long. If the reflex by which

the child eats stops functioning, how far should the medical staff intervene to preserve life? Is

there the obligation to feed him through a stomach tube, for example? (Rabbi M. Remson,

Naperville, IL)ANSWER: Let us begin by dealing individually with each question

which you have asked. Traditional Judaism places an obligation for the maintenance of children

upon the father; it is his duty to provide for all of his children’s needs in accordance with his

ability (Yad Ishut 13.6; Shulhan Arukh Even Haezer 73.6 ff). This includes formal

education, learning a trade or anything else which will enable a child to take her place in the

adult world (Kid. 29a ff; Shulhan Arukh Yoreh Deah 245.1, 4). There is some discussion

about the number of years for which this obligation exists. Originally tradition limited it to six

years (Ket. 49b, 65b; Shulhan Arukh Even Haezer 71.1) and indicated that after that time,

the father was duty-bound to maintain the child as an act of tzedaqah (Yad Hil.

Ishut 12.14, 15, 21.17; Shulhan Arukh Yoreh Deah 251.4). However, the demands of

tzedaqah were to be enforced rigidly according to the actual needs of the child

(Yad Hil. Ishut 13.6; Shulhan Arukh Even Haezer 73.6). This obligation then

continues until age thirteen or in modern times until the child reaches an independent adult

status. Little has been said in our legal tradition about the emotional needs of the

child, but such thoughts have been conveyed through the aggadic

literature. Nothing in the traditional literature limits such care to normal children. In

other words, the obligation is universal and applies to every child regardless of her mental or

physical abilities. Tradition, therefore, indicates that this child, despite its very limited

abilities, deserves both the maintenance and affection which the parents can provide. As I view

this problem through my personal experience with a severely handicapped daughter and that of

others who have dealt with parents of handicapped children, it is clear that unless ongoing

relationships of some kind are established with such a handicapped child, the parents and other

children will always feel guilty. Obviously this child can not be made part of the normal family

life, but ongoing visits and continued concern with his welfare rests as any obligation upon all the

members of the family. Practically speaking, such visits also assure a higher standard of care for

such an individual, as those institutionalized children who receive no visits are frequently

neglected. Now, let me turn to the second portion of your question which asks about

medical procedures in case this child’s normal reflexes stop. We should follow the advice of the

Mishnah, which states that no positive action which will hasten death may be instituted

(M. Shab 23.5, 151b; Shulhan Arukh Yoreh Deah 339). On the other hand, the

same sources indicate that we need not impede the individual’s death when no recovery is

possible. This matter has been discussed at some length by Solomon B. Freehof (W. Jacob,

American Reform Responsa, # 77). Nothing unusual needs be done by the attending

physician; there would be no obligation to feed this individual through a stomach tube, etc. We

followed the decision with our own child. In summary, as long as this handicapped

child remains alive, he should be given all care and affection possible. If his reflexes stop and no

recovery is possible, he should be permitted to die peacefully.February 1984

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 98-99

CCAR RESPONSA

Contemporary American Reform Responsa

61. A Child Raised in Two Religious

Traditions

QUESTION: A couple in which the wife is Jewish and the

husband is Christian were married by a priest and a rabbi. Their child has been baptized and

circumcised. During the early years of the boy’s life, he went to religious school sporadically, but

now the parents wish to enroll him in Hebrew classes as well as regular religious school class in

preparation for Bar Mitzvah. Further probing shows that they also intend to have him

prepared for First Communion. What is the status of this child? Should he be enrolled in the

Bar Mitzvah program? Would the answer to the question be different if the mother were

Christian and the father Jewish? (M. K., St. Louis, MO).ANSWER: The status of a

Jewish child, according to tradition, is determined by the Jewishness of the mother. We, as

Reform Jews, changed this through a resolution passed by the Central Conference of American

Rabbis, in 1983, which stated: “The Central Conference of American Rabbis declares

that the child of one Jewish parent is under the presumption of Jewish descent. This presumption

of the Jewish status of the offspring of any mixed marriage is to be established through

appropriate and timely public and formal acts of identification with the Jewish faith and people.

The performance of these mitzvot serves to commit those who participate in them, both

parents and child, to Jewish life. “Depending on circumstances, mitzvot

leading toward a positive and exclusive Jewish identity will include entry into the covenant,

acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat

Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts

or declarations may be added or substituted after consultation with their rabbi.” This

means that the child of a Jewish mother or a Jewish father is potentially Jewish if the parents act

to assure the Jewish identity of the child through education, appropriate ceremonies, etc. Here,

of course, the parents have done that, but have also, and at the same time, provided the

youngster with a Christian identity. Furthermore, we are faced with two religious traditions which

place exclusive claims upon a child. Traditional Judaism would insist that this child, by virtue of

its Jewish mother, remains Jewish regardless of any actions which may be taken on its behalf or

which the child may take. He would be considered an apostate because he is affiliated with

Christianity, but he would always be welcome to return to Judaism with a minimum of ceremony.

On the other hand, Catholicism places a similarly exclusive claim on the child by virtue of his

baptism, although this need not concern us. We would say to the parents that

although their family life thus far has followed a dual path, they have now come to a juncture at

which a decision must be made. It would have been much simpler if such a decision had been

made at the time of their marriage, then some of these problems would not have arisen. Now,

however, the child must follow one religious tradition or another. We can not in good conscience

prepare a child for Bar Mitzvah with the knowledge that at the same time he is being

prepared for First Communion. Furthermore, the child will not be helped by this equivocal stand

of the parents, for he will merely be confused, both now and in the future when his status will

remain a puzzle to him. This matter must be settled at this moment, and we must insist on a

decision for this child. The rabbi and the congregation should be absolutely certain that the path

upon which the parents agree will be followed and should ask for such an agreement in

writing.September 1983

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5754.3 263-264

CCAR RESPONSA

Child Raised in Two Religions

5754.3

She’elah

A Jewish father, whose wife is Christian, has two sons for whom he would like to arrange Bar Mitzvah ceremonies. On alternate weeks the children receive one hour of Jewish education in an informal setting. Throughout the year they attend synagogue services with their father at regular intervals, and on Sundays go with their mother to church school and services. The parents say that they want the children to learn about both traditions, with the intent of permitting them to choose their affiliation when they grow up.

Inasmuch as the children have not made a commitment to be Jewish, nor have the parents made a commitment to raise them as Jews, should the children participate in Jewish life cycle events such as Bar Mitzvah?

In a similar vein, if the parents claim that they are raising their children to be “both Jewish and Christian” (i.e., if there are simultaneous Jewish and Christian commitments)), are such children entitled to celebrate their Bar Mitzvah? (Rabbi Amy R. Scheinerman, Baltimore, MD)

Teshuvah

Since the children have a Jewish father and a Christian mother they are considered Gentile in the traditional Halachah, while the 1983 resolution of the CCAR would consider them to be potential Jews. We acknowledge their Jewish status if and when a public affirmation of their identity has been made through a formal act.¹

A Bar Mitzvah celebration is precisely this: an affirmation of identity, when a boy becomes subject to the mitzvot and assumes the obligations of Jewish life. If he has not as yet resolved the question of his identity, such a celebration would suffer from an inherent contradiction, and to carry it out nonetheless would be a sham, pretending to something the celebrant and his parents do not want it to be.

Rabbi Walter Jacob issued a teshuvah on this very question. It deals with a child who was born of a Jewish mother and, although baptized as an infant, was halachically considered still to be a Jew. Even so, Rabbi Jacob would not admit him to the Bar Mitzvah course and emphasized that parents and child must reach a decision on the boy’s Jewish identity before he could contemplate a Bar Mitzvah.

This ruling applies, al achat kama vekhama, to the instant case. The rabbi should counsel the parents about the possibility of a delayed or even adult Bar Mitzvah; but at this time, when the boys’ religious future is still undecided, a Bar Mitzvah is out of the question. The celebration is a confirmatory act, not a trial run. It may please parents and grandparents, but its observance under present circumstances would be a denial of its essence.

Notes

CCAR, Ma’agelei Rabbi’s Manual, (1988) pp. 225-227. Contemporary American Reform Responsa, 1987, #61, pp. 98-99.

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 387-390

CCAR RESPONSA

New American Reform Responsa

239. Preferential Treatment of Children in Estates

QUESTION: What is the Jewish law regarding inheritance? May the distribution be rearranged from the standard recommendation and favor one child over another to compensate for the bad luck of that child or inability to take care of itself properly. What role should love play? (Rabbi Richard M. Litvak, Santa Cruz CA)

ANSWER: The entire matter of inheritance is quite complex. Initially it was based on a verse in the Torah which indicated that sons were to inherit and if there were no sons, daughters, and subsequent other kinsman who were specified (Nu 27.8 ff). Daughters were systematically excluded in the early rabbinic period unless no male heirs existed (B B 110a f). Furthermore, the direct descendants of a son also took precedence over any daughters. In this system, lineal descendants took precedence (M B B 8.2, 115a, b; Yad Hil Nahalot 1.3, 5). Sons also inherited from their mother (MB B 8.1), however, the mother’s other family members were generally excluded from inheritance. In this entire system it was taken for granted that daughters received a dowry and, therefore, their economic future was guaranteed. If they were permanently single or not yet married, it was the duty of the brothers to provide for them, including a dowry, so no further economic benefits needed to be bestowed. Appropriate provisions were made in wills to assure or force the giving of a dowry.

In accordance with verses from Deuteronomy, the first born son received a double segment of the estate (Deut 21.16-17). This applied to the father’s estate and even if the first born was a mamzer. This did not apply to daughters. There was a limitation, however, as the first born received a double portion only from the father’s estate not from that of the mother (Yad Hil Nahalot 2.8; Shulhan Arukh Hoshen Mishpat 277.1). The amount to be divided was calculated by the number of sons and the first born received a double portion of that sum. The status of the estate was governed by the time of death. In other words, if a child was born after the death of the father, that child was disregarded for the purpose of calculating this amount (B B 142b). Just as the first born was entitled to a double portion of inheritance of all kinds, he was also responsible for a double portion of the debts of the estate (B B 124a; Shulhan ArukhHoshen Mishpat 278.9).

The right of a husband to inherit from his wife was absolute, although there was a good deal of debate over what rights still existed if divorce procedures had begun (Yad Hil Nahalot 1.18; Shulhan Arukh Even Haezer 90.1). This right to inherit extended to items which she might inherit from someone else (Maharashdam Responsa Even Haezer #98). A wide variety of medieval ordinances dealt with the complex problems of inheritance when sons stemmed from a former marriage. Sometimes the dowry or a portion, thereof, reverted to the wife’s family if she died without children. This was especially true if she died within the first or second year of marriage (Isserles to Shulhan Arukh Even Haezer, 53.3; 118.8; Asher ben Yehiel Responsa55.1). All of these restrictions were intended to adjust to new circumstances and to treat the heir’s family fairly. They protected the inheritance of the wife’s family especially.

Although daughters were excluded from all these matters of inheritance, the sons who received the inheritance had to maintain their sisters and also provide them with adequate dowries (M Ket 4.6 ff; 53b; 68b; Shulhan Arukh Even Haezer 112.10). Of course, if there were no sons, then the daughters received and divided the total estate (Shulhan Arukh Even Haezer 112.18). These laws took effect under normal circumstances. A person could, however, make other provisions by giving away his property during his lifetime and thus circumvent the normal laws of inheritance. He had to operate within the principle ein shetar lahar mitah (Ket 55 b; B B 152a; Shulhan Arukh Hoshen Mishpat 250.9; Moses Sofer Hatam Sofer Hoshen Mishpat 142). Moses Feinstein disagreed with this principle (Igrot Mosheh Even Haezer 104). Often this was done in such a way that the property was given as a gift while the right of usage remained during the lifetime of the owner (M B B 8.7; Shulhan Arukh Hoshen Mishpat 257.6 f). Some kind of formal kinyan (acquisition) was necessary (B B 149a; San 29b; Shulhan Arukh Hoshen Mishpat 250.3; 257.7; 281.7). Depending on how this was worded he could change his mind during his lifetime. In any case it referred only to property then in his possession. He could also stipulate that his property be distributed in accordance with his wishes and that was to be effective one hour before his death (B B 136a; Tur and Shulhan Arukh Hoshen Mishpat 258). Verbal declarations during a fatal illness were considered valid without kinyan (Git 13a; 15a; B B 151a; Yad Hil Zehiya Umatanah 7 ff; Shulhan ArukhHoshen Mishpat 250.1).

It was in precisely the same way that a father could favor his daughters. This was done through a special deed which becomes effective one hour before the individual’s death (shetar hatzi zakhar). Often the deed stipulated that half of a son’s share shall go to a daughter (Nahalat Shivah #21.1). In order to enforce his wishes, the document could also state that if the gift was not made, an unusually high amount of dowry was to be given to the daughter (Isserles to Shulhan Arukh Hoshen Mispat 281.7). This shetar, which takes effect just before the individual’s death, overcame the problem of the rights of succession. The proper language had to be used to indicate that these gifts were serious and permanent and, of course, there have been innumerable cases of challenges.

In the lengthy discussions of wills and estates, which took place in traditional literature, there is little which deals with the question which you have asked.

Some wills cited in the responsa favored one child over another for the reasons mentioned in your questions. Others overcame the problems, which you raised, through the ethical will, a document which appealed to the conscience of the heirs. Although this avenue is open to anyone, it has become primarily a literary device through which scholars and philosophers address the moral problems of their age. The outward form of a father speaking to his children actually addresses a larger audience.

The tradition gradually permitted greater equality among all children in matters of inheritance through the devices mentioned above. The more recent testamentary documents reflect this clearly. Reform Judaism would encourage it. This would, however, not preclude making special provisions to deal with unusual problems among children. In other words, placing funds in a trust to safeguard them against misspending, etc. Traditional Judaism has permitted and Reform Judaism encouraged the equal treatment of all children so that closeness of family and the love of siblings for each other will continue from generation to generation.

November 1987

If needed, please consult Abbreviations used in CCAR Responsa.