Responsa

RRR 97-99

Baptism of Child Before Adoption by Jewish Couple

A Catholic mother (with a child born out of wedlock) is willing to have her child adopted by a Jewish cou ple and raised as a Jew, but insists, before giving the baby up, that it be baptized in the Catholic Church. Does this insistence in any way debar the complete Jewish adoption or the raising of the child as a Jew?(From Rabbi Martin Goldberg, Buffalo, New York)

One can understand why the Catholic mother insists upon Catholic baptism and yet, thereafter, is willing to have the child raised as a Jew. The mother’s conscience is involved. Since she has had sexual relationship outside of wedlock, she has committed a sin, and she undoubtedly feels that the least she can do to atone for her sin is to have her child baptized in the Catholic Church. Also, to a Catholic, baptism is a sacrament with permanent effect, and in the eyes of the Church, the child remains a Catholic. Hence, to the mother, whatever might subsequently be done to raise the child as a Jew or Jewess could have no permanent effect on its status, and the child is “saved.”

Of course, Judaism cannot make the same relative evaluation between Catholic baptism and Jewish induction as a Catholic would make. To a Catholic, Jewish ceremonial conducted over a baptized Catholic child is of no avail. The child remains Catholic. With us, the analogous assertion is made with regard to a child born of a Jewish mother. Catholic baptism is of no avail, and this child born of a Jewish mother remains a Jew (see responsa of Solomon Duran with regard to the Marranos, “Rashbash” 89). But our question here asks what is the status in Judaism of a child born of a Catholic mother and baptized, and who is to be adopted by Jewish parents. Specifically, the questioner wants to know whether the fact that the Gentile child is first baptized makes it less proper or more difficult for the child to be converted to Judaism.

First of all, it is clear that any Gentile infant can be converted to Judaism. It is, of course, impossible to explain to an infant or to a young child all the implications of conversion to Judaism. Such a detailed explanation is required with adult candidates for such a conversion. That an infant may be converted to Judaism is clear from the Talmud (b. Ketuboth 11a). The inevitable omission of the cautionary explanations is justified in the Talmud on the ground that it is of benefit to any child to be accepted to Judaism (cf. Reform Jewish Practice, Vol. II, p. 85 ff.).

The only limitation in the older law as to who may be and who may not be accepted as a Jew concerned certain Palestinian pagan nations who “may not enter into the congregation of the Lord” (Deuteronomy 7 : 3 and 23 : 4). But even with regard to this Biblical prohibition, the Talmud indicates that it is no longer in force since “Sennacherib came and mixed up all the nations” (b. Berachos 28a). In other words, those nations originally excluded are no longer distinguishable from other people. Thus, the Biblical prohibition of the acceptance of such races for con version has lapsed. There is no racial or national discrimination, and there has never been a religious discrimination against one class of proselyte or another. This child, if baptized before adoption, is no different in status from a grown Catholic who had been baptized in youth and had, since childhood, received many Catholic sacraments and who wishes, now, to convert to Judaism. He is certainly acceptable.

The only possible objection to the mother’s having the child baptized before adoption is a social or psychological one. This insistence on baptism may mean that she wants to retain her hold on the child and may later try to have the adoption cancelled. If so, the Jewish adopting parents will have a great deal of sorrow. But this possible outcome should be guarded against, and the Jewish adopters should be as certain as possible that the mother is merely easing her conscience by having the child baptized. Certainly from the point of view of Jewish law, there can be no objection to the natural mother’s desire to baptize her child, provided that the child is then properly inducted into Judaism.

RRR 120-127

Status of Apostates (Children and Adults)

The Committee has received during the past year a number of questions which involve Jewish converts to Christianity, and some questions with regard to the reversion to non-Jewish faith on the part of converts to Judaism. A question arose about the status in Juda ism of Christian children, adopted, converted to Juda ism, and then, because of physical or mental defects, the adoption is cancelled and the child returned to the agency. What is the status of such a child? The questions involving apostasy have come up generally in the following circumstance: A child is of an immi grant family in which there is a Gentile father and a Jewish mother, the family having been converted to Christianity in Germany. Now the young girl from this mixed family wants to marry a Jew. May she be married to a Jew without conversion? Analogous to it is the question of a child of a Jewish mother adopted and raised by a Christian family as a Christian. Can this child be married to a Jew without conversion? Does the fact that this child was not raised by her Jewish mother make a difference? As for a Christian child adopted, converted to Judaism, and then, be cause of physical or mental defects, returned to the agency, is this child to be deemed to have remained a Jew? May he or she, for example, when grown up, be married to a Jew, without further question as to reconversion?

These are all practical questions, and therefore it is important not only that we analyze the attitude of Jewish law in the past to these individuals, but also arrive at a practical conclusion for ourselves as to how we should deal with the problems mentioned above.

At the outset, it is to be noted that these problems are not new. To some degree they are dealt with in the Talmud, but they come to more complete discussion in the many responsa dealing with the Marranos, who for cen-turies kept on escaping from Spain and Portugal and appearing in Jewish communities elsewhere. Decision had to be made as to the status of these fugitives. Should they now be converted to Judaism? Or was the conversion unnecessary on the ground that they still were Jews? The question came up likewise in Ashkenazic Jewry due to the waves of compulsory conversion in the wake of the Crusades and later persecutions. It would be well, therefore, to trace the law in its general principles from the beginning.

The Talmud, in Yevamoth 45b, says that a child born of a Gentile father and a Jewish mother is “kosher.” To which Rashi comments, “Since his mother is Jewish, he is counted as one of our brothers.” The Talmud in Kiddushin 68b, in discussing the verse in Deuteronomy 7 : 4: ” … he will wean your son away from following Me,” indicates that “he” means the Gentile father of the son, who will mislead the son away, and so forth. Therefore, the Talmud says, this indicates that “your son” born of an Israelite woman is truly your son, but a son born of a Gentile woman is her son. The principle is so embodied in the Codes: in the Tur, Even Hoezer 4, it is written that the son of any Gentile man and a Jewish woman is “kosher” to marry a Jew; so it is also in the Shulchan Aruch, Even Hoezer 4 : 5 and 19. There is some question whether a child of such a mixed marriage may marry a priest, but most authorities agree that she may do so.

Therefore, there is no question that the child of a Jewish mother is fully a Jew and may be married to a Jew. Now, theoretically speaking, if this daughter of a mixed marriage also marries a Gentile, her child is a child of a Jewish mother and is also Jewish. For how many generations would this Jewish status endure? While, of course, this is a theoretical question, it is interesting to note that Solomon, the son of Simon Duran, of Algiers, says (“Rashbash” 89) that it applies “ad sof ho ‘olom, ” forever. The statement of Duran is as follows: “One whose mother is Jewish, even for many generations, even if the father is Gentile, the child is Jewish, even to the end of the world, ad sof ho ‘olom. ”

But such a person has been raised as a Christian—either, as in the case concerning which the Committee was specifically asked, the child was herself converted to Christianity; or, as in the case of the Marranos, the child was raised in a Christian environment from the very beginning. Granted that the child is Jewish by birth, must it not be in some formal way restored to its Jewish status—by a ceremony akin to conversion? This is discussed in the law and most of the discussion goes back to the Talmud in Bechoros 31a and Avodah Zara la. Here the discussion is specifically with regard to the Am Haaretz, meaning in the Talmudic sense one who is not to be trusted to observe the laws of purity and to give tithes and heave offering properly. What should be the relationship between these non observers (Am Ha’aretz) and the Chaverim (those who are careful to keep all the laws mentioned)? The Talmud says that the Am Ha’aretz, before he can be accepted as trustworthy, must make a formal promise of Chaverus, i.e., to be one of the Chaverim who are careful to observe the law.

The same term is used in the discussion of apostates who want to return. Repentant apostates are asked to take upon themselves the promise of Chaverus, i.e., to obey Jewish law. As to whether any formal ceremony other than such a promise is to be required of them, there is a general agreement that the ritual bath is not really required by strict law (m’d’oraiso), but some would require the ritual bath as a rabbinical caution (m’d’rabbanan). Thus it is decided by Moses Isserles in Yore Deah 268 : 12. However, it is noteworthy that in the discussion in the Talmud, in Bechoroth, Rabbi Simon and Rabbi Joshua, speaking of the nonobservant and whether we should accept their repentance, say that under all circumstances we should accept them because of the verse in Jeremiah (3 : 22), “Return, ye recreant children”; and the Talmud says that the law is according to this pair of lenient authorities. The status of the nonobservant Jew, and that of the proselyte are brought together in the Tosefta (Demai II). In the discussion on the Shulchan Aruch passage mentioned above, Elijah of Vilna quotes this lenient discussion in the Talmud as applying also to apostates who revert to Judaism. In general, the Talmud is lenient also with regard to children of Jewish birth who, unaware of their Jewish origin, are raised among non-Jews (Tinok hanishbah bayn hanochrim). See the discussion in Shabbas 68 b ), especially with regard to their being excused since in their ignorance they violated the Sabbath.

The general mood of the law with regard to all those who seek to return was to make as little fuss as possible and to interpose no hindrances. The rest of the statement of Solomon Duran as to these reverts is as follows: “The requirements of conversion do not apply to them at all. When they wish to return to Judaism, we do not have to tell them about the various commandments (as we do to Gentile converts) for they already stand sworn as part of Israel from Mount Sinai and they do not need the ritual bath for conversion.” That this is not merely a chance liberal statement is evidenced by the fact that it is quoted by Joseph Caro in his “Bes Joseph” (Bedek Ha Bayis) at the end of Yore Deah 268, where the question is discussed. It is noteworthy, too, that Rabbenu Gershom, the Light of the Exile, speaking in the Rhineland, also says in a similar case (in fact, with regard to a priest) that we should be as lenient as possible and refrain carefully from reminding them of their former state lest we discourage thereby the apostates from returning in repentance (“Vitry,” pp. 96-97).

It is clear from this that no ritual of conversion should be required of a child of a Jewish mother. To do so would indeed violate the law and imply that they are not Jews, which would be errpneous. However, the decision of Is series that they avow Divre Chaverus could well be accepted by us as a cautionary action. We should ask the person involved to promise to maintain a Jewish home. This, at the most, is all that is necessary.

Now as to the other and somewhat related question: What about a child born of a Gentile mother who, in infancy, is adopted into a Jewish family, converted to Judaism, and then, after conversion, is returned to the adoption agency because of some physical or mental defect? Is this child, because of the original conversion in infancy, to be deemed permanently a Jew? This may become a practical question if, when the child grows up, he or she wants to marry a Jew.

In general, the law concerning an infant who is converted is different from that governing an adult who is converted to Judaism. An adult accepts Judaism of his own free will after a careful explanation is made to him of all the circumstances involved in becoming a Jew. But an infant is converted without knowing what is involved. The Talmud says (Ketuboth 11a) that an infant may be converted by the authority of the Beth Din, not, of course, on the ground of the child’s intelligent acceptance of the conditions involved, which is impossible, but because becoming a Jew was deemed to be an advantage, and we may do a favor to a person even without his consent. Therefore, with regard to an adult convert, he cannot completely discard the allegiance which he had accepted. He simply becomes a sinful Jew and he may still enter into Jewish marriage, just as an apostate Jew may (see Tosefta, Demai I I : 5; Yore Deah 268 : 12).

This convert to Judaism who reverts to his former faith is, of course, not deemed a Jew in the full sense of the word. Just as in the case of a born Jew who apostatizes, he is, for example, not to be relied upon with regard to various mitzvos. The wine in his possession is Gentile wine, and his bread is Gentile bread. But with regard to marriage, he has the same right as an apostate Jew. The only exception with regard to apostates in the marriage relationship concerns the levirate marriage and Chalitza. If, for example, a man dies and has no children, and his brother is an apostate, some few authorities ease the requirement that the widow obtain Chalitza from this apostate. But otherwise the apostate, whether born Jewish or having been converted as an adult, retains his Jewish status in marriage relationships (cf. Ezekiel Landau, “Nodah b’Yehudah” II, Even Hoezer 150).

Thus, the adult convert, like a Jew by birth, possesses what international lawyers call an “indelible allegiance,” at least with regard to marriage and divorce. However, a child who has been converted without his own intelligent consent, but merely on the theory that a favor has been done him, is given the permission to renounce the conversion when he grows up. So says Rabbi Joseph in the dis-cussion in the Talmud (Ketuboth 1 1a). This is embodied as law by Asher ben Yehiel in his Compendium on the Talmud. He adds, however, that if the convert, when he is full-grown, is known to observe Jewish law, this observance is deemed to mean consent; and then he can no longer renounce his allegiance. So it is in the Shulchan Aruch, Yore Deah 268 : 7 and 8. The child in question, therefore, has the right to determine whether his conversion in infancy remains valid or not. If he chooses to live a Jewish life as he grows up, he is a Jew; if not, his conversion is void.

To sum up: Those who are born of Jewish mothers and those who are converted to Judaism as adults have an indelible allegiance to Judaism with regard to marriage laws. The only real exception to this is the circumstance in which a woman is free from the need of Chalitza if her husband’s brother is an apostate.

(Originally published in Central Conference of American Rabbis Yearbook, Vol. LXX, 1960.)

RR 127-131

Burial of an Apostate

A Jewish family in Los Angeles asked an undertaking establishment to arrange for the burial of their close relative who had just died in a Catholic institution in San Francisco. The nuns in charge delivered the body at the request of the family, but informed the family that the man had been converted to Catholicism and had received extreme unction. The question is this: Is a Jewish institution, or are Jews in general, in duty bound, according to Jewish law and tradition, to pro vide burial for an apostate from Judaism? The family also asks that the body be put in shrouds (tachrichim).

(From Louis J. Freehof, San Francisco, California)

The origin of the law is to be found in the post-Talmudic treatise Evel Rabatti (Semachos, chapter 2). The discussion there includes suicides, criminals executed by the court, people under ban, apostates, and so forth. The general injunction given with regard to all these sinners is that we do not tear the garments for them (Keriah) and we do not engage in any burial activity with them (Eyn Misaskin). This law, namely, the general injunction that we have no concern with, or burial responsibility for, such people, is repeated almost verbatim in all subsequent legal discussion and in the Codes.

Yet, although this formal prohibition is stated and repeated, it is noticeable that there has been continual limitation of the scope of the prohibition. Sometimes the limitations have to do with one of the types of people involved (the suicide, or the man under ban, or the apostate, and so forth). Sometimes the limitation concerns one or the other elements of the general prohibition, such as the formal periods of mourning, or standing in line at the cemetery to console the mourners, or providing shrouds, and so forth. In general, not much distinction is made between these sinners, and what applies to one applies to the other. One can say that the prohibition against formal mourning for this group is the one which is most fully observed. This is due to the general principle that whenever questions have to be settled as to mourning (i.e., how long it should endure, and so forth) the rule is to make the lenient decision; that is to say, whenever in doubt, the decision is to mourn less or not mourn at all. Therefore, this part of the general prohibition (namely, the mourning ritual) usually remains firm through all the discussions of the law. Yet, even in this case, permission is occasionally given to participate in regular mourning. See, for example, the responsum of Moses Sofer, “Chasam Sofer,” Yore Deah 326, where he says with regard to a certain honored family concerning whom the inquiry was made (when a member of the family committed suicide) that he certainly would permit such a fam ily to save itself from gossip and shame, which would come if they conspicuously kept from mourning for the deceased suicide.

Moses Sofer’s decision to permit mourning in the case of a suicide was based upon his concern for the honor of a family. This motivation explains much of the development of the law in this case. The original source of the law in Evel Rabatti summarizes what is permitted and what is not permitted in regard to this group of sinners, by saying that whatever is for the honor of the dead we do not do (since they do not deserve any honor from us), but that whatever is for the honor of the living we do observe. Based on this distinction, every element in the ritual of burying and mourning has been, and must be, separately evaluated. Whatever is for the honor of the dead we do not do, and what is for the honor of the living we do observe. Thus, almost no authority except, perhaps, Ezekiel Katzenellenbogen, of Altona (“Knesses Yecheskel” 37), would say that we give a hesped (eulogy), since the hesped is clearly for the honor of the dead.

Therefore, the question as to whether we are in duty bound to bury these sinners, or to provide tachrichim or not, depends upon the prior question, whether burial and tachrichim are for the honor of the dead or for the honor of the living. This very question is the subject of an elaborate debate in the Talmud (b. Sanhedrin 47c ff.). This debate is evaluated by Abraham de Boton (“Lechem Mishna” to Maimonides, Yad, “Hilchos Avel” I : 10). He bases his judgment on the Tosfos which he cites, namely, that although burial does involve the honor of the dead (and therefore one would think we are not in duty bound to provide this honor for these sinners), nevertheless some disgrace is always involved for the living if the body of the sinner is not properly buried. The fact that the honor of the living is always involved is cited by Abraham de Boton as the explanation of a crucial decision in this matter by Solomon ben Aderet, Rabbi of Barcelona, thirteenth century. (See his responsum 763.) Solomon ben Aderet (Rashbo) says that when Evel Rabatti states that we do not do anything for these sinners (eyn misaskin), this does not mean that we are free from our responsibility for burying them and providing shrouds. Although Solomon ben Aderet is one of the greatest authorities, his opinion would not stand up against the earlier authority of Evel Rabatti if he stood alone. But his opinion is cited by Joseph Caro; see “Bes Joseph” to the Tur, Yore Deah 334, where he quoted this responsum and also another by Rashbo to the same effect. Caro quotes them without the slightest disagreement. So, too, in the Shulchan Aruch, Yore Deah 333 : 3 (the discussion here is specifically about an excommunicated man), Schach (Sabbetai Cohen) cites the opinion of the Rashbo, and states that it has been quoted by Joseph Caro (“Bes Joseph”) and he accepts it as the rule. So the Be’er Hetev (ad loc.) cites it as a rule that the Evel Rabatti does not mean at all that we should refrain from providing burial and tachrichim for these sinners. It is noteworthy that the great Rabbi of Egypt of the sixteenth century, David ben Zimri, said in his commentary to the Yad, “Avel” I :10: “It seems that we must bury them, but not alongside of the righteous.” A full responsum on the question is found in the Responsa of Bezalel Shaffran, rabbi in Rumania, responsum 131. He is asked a question from Yassy about the burial of an apostate. The questioner says they have a minhag in Yassy not to bury such persons in the Jewish cemetery. Shaffran denies that the minhag is valid. He quotes all the authorities, Maimonides, Rosh, Rif, who emphasize that we do not mourn for apostates but imply that We do bury them, and he also quotes Solomon ben Aderet, who specifically says that we do bury them. He also quotes Joel Sirkes (Bach) to Yore Deah 362, who con eludes that we do bury but do not give tachrichim. He then tells that Or Zerua (II, 422 : 3) takes the opposite point of view, that we do not bury them, but he calls attention to Joseph Saul Nathanson’s commentary, “Yad Shoul” to Yore Deah 345, which says that Or Zerua’s statement that we do not bury applies only to the specific case of a shochet who supplies Jews with trefe meat. Finally, he leaves the matter unsettled.

In a footnote, the son of Bezalel Shaffran, Enoch Shaffran, Rabbi of Bucharest, says the matter is decided, and that we do bury them; and he quotes Moses Sofer, Yore Deah 341, who says that we do, and then adds that it is the custom to bury them with tachrichim.

An interesting older responsum on the question of burial of a sinner is found in the Responsa of Jacob l’Ves Levi, 49 (rabbi in Turkey, seventeenth century). This responsum concerned a woman who threw in her lot with her excommunicated son, and violated all the laws of the community and the faith. (By the way, this woman is identified by Perles as the mother of Uriel Acosta [Monatsschrift, vol. XXVI, 1877].) He decides, on the basis of all the opinions cited above (going back to the fundamental decision of Solomon ben Aderet) that it is our duty to bury her. He adds, of course, that if the rabbinical court wishes to make a special example of her and not bury her, they have the right to do so; but that is only under special circumstances of community tension when the safety of the community is involved, when it is permitted even to deprive a sinner of the right to have his son circumcised, or the right of the son to study in the communal school. See Responsa of Nachmanides, 244. Except for these emergency rights of the rabbinate, the general rule is clear: All the sinners listed in Evel Rabatti, including apostates, should be buried by the Jewish community (or their relatives), and also, if desired, shrouds (tachrichim) should be provided

RRR 188-193

Abortion

A young woman has contracted German measles in the third month of her pregnancy. Her doctor says that her sickness creates the possibility that the child, if born, may be deformed in body or mind. Some doc tors, however, seem to doubt that this will happen. In other words, there are various opinions as to the prob ability of the child being born deformed. May she, according to Jewish law, or according to Reform re lation to Jewish law, have an abortion to terminate the pregnancy? (From Rabbi Sidney Brooks, Temple Israel, Omaha, Nebraska)

The Mishnah (Oholos V I I : 6) says that if a woman has great difficulty in giving birth to her child (and it seems as if she cannot survive) it is permitted to destroy the child to save her life. This permission to destroy a child to save the life of a mother is cited in all the Codes and is finally fixed as law in the Shulchan Aruch (Chosen Mishpot 425 : 2). This permission to destroy the child is only given in the case where it is necessary to save the mother. The law continues and says that if the child puts out its head or most of its body, it may no longer be killed to save the mother, since we do not “push aside one life for another.” Therefore, this legal permission to destroy the child cannot be relevant in the case mentioned, in which the foetus in no way endangers the mother and, therefore, on the ground of the law in Chosen Mishpot there is no basis as yet to terminate the pregnancy.

However, Rashi to b. Sanhedrin 72b, where the law of the destruction of the child is cited from the Mishnah Oholos, feels it necessary to explain why the child must be spared if it puts forth its head and yet may be killed if it does not. His explanation (which is cited in later discussions) is of some relevance to our problem. He says that as long as it does not go forth “into the air of the world,” it is not considered a “nefesh” and, therefore, may be slain to save the mother. From this we might conclude that an unborn foetus or infant is not considered a being, and may, if necessary, be destroyed. Yet even so, in this case, the permission is given only to save the mother.

Still, Rashi by his explanation raises the possibility that we need not be too strict about saving an unborn child. In fact, there is some conformity with this point of view in the law (codified in Chosen Mishpot 423) that if a man happens to strike a pregnant woman and the child is destroyed, he has to pay money damages for the harm to the mother and the loss of the child. But why should he not be guilty of a capital crime, having killed the child? Evidently one would conclude that the child unborn is not a nefesh in the sense that killing it would be a capital crime. Joshua Falk (sixteenth-seventeenth century), in his classic commentary,. ” M’iras Enoyim,” to the passage in Chosen Mishpot 425, end of his section 8, develops the opinion of Rashi and says clearly, “While the foetus is within the body of the mother it may be destroyed even though it is alive, for every foetus that does not come out or has not come out into the light of the world is not described as a nefesh. ” He proves this from the case of the man who strikes a pregnant woman and destroys her unborn child. The man must pay damages but is not deemed a murderer, which he would be if the foetus were considered a nefesh. Similarly, in Arakin 7a, if a pregnant woman is condemned to death, she was smitten in front of her body so that the child would die before she was executed. This, too, would indicate that no capital crime is committed in slaying unborn children. However, the cases stated above are mitigated by various arguments given in the literature, and the actual law is that a foetus may not be destroyed, as is seen in the following: The Talmud, in Sanhedrin 57 b , gives the opinion of Rabbi Ishmael that a hen Noach, i.e., a nonidolatrous non-Jew, is forbidden to destroy a foetus. It is a capital crime if he does it. The Tosfos to Chullin 33a says that this indicates that a Jew is not to be put to death (as a ben Noach is) if he destroys a foetus; nevertheless, continues the Tosfos, while it is not a capital crime for a Jew, it is still not permitted for him to do it.

There is a modem, scientific analysis of the law on this matter by V. Aptowitzer, in The Jewish Quarterly Review, new series, Vol. 15, p. 83 ff. However, it is rather remarkable that the whole question of abortion is not discussed very much (in actual cases) in the traditional law. As a matter of fact, I found at first only three responsa which discuss it fully. There are others which I found later. The first responsum is by a great authority, Yair Chaim Bachrach, of Worms, seventeenth century. In his responsum (“Chavos Yair” 31) he was asked the following question: A married woman confessed to adultery and, finding herself pregnant, asked for an abortion. Bachrach was asked whether it is permissible by Jewish law to comply. He discusses most of the material that I have mentioned above, and at first says that it would seem that a foetus is not really a nefesh and it might be permitted to destroy it, except that this would encourage immorality. But he concludes, from the discussion of the Tosfos to Chullin, that a Jew is not permitted to destroy a foetus, that it is forbidden for him to do so, even though he would not be convicted for it.

Yet in the next century the opposite opinion is voiced, and also by a great authority, namely Jacob Emden (“Yabetz” I,43). He is asked, concerning a pregnant adulteress, whether she may have an abortion. He decides affirmatively, on the rather curious ground that if we were still under our Sanhedrin and could inflict capital punishment, such a woman would be condemned to death and her child would die with her anyway. Then he adds boldly (though with some misgivings) that perhaps we may destroy a foetus even to save a mother excessive physical pain.

Solomon of Skola, in his Responsa, “Beth Sholomo” (Lemberg, 1878, Choshen Mishpot 132), says that if it is within the first forty days of the pregnancy, there is no possible objection to an abortion; but even if it is older, the danger to the mother’s life and health determines if an abortion may be performed. However, he hesitates on another ground entirely, namely, that the abortion itself is a danger. Now, he says, the doctors may say that the abortion is not dangerous, but the Halacha says it is dangerous, and we follow the Halacha. Of course, he continues, if she herself insists upon an abortion, that would tend to weigh in favor of it. But still he does not wish to decide.

Yechuthiel Teitelbaum, of Sziget, in his responsa, “Avne Zedek,” Lemberg, 1886, Choshen Mishpot 19, tells of the following case: A woman is six months pregnant and she is dangerously ill. The doctors say that the only chance she has for survival is to undergo an abortion. He quotes the statement of Joshua Falk that a foetus is not a nefesh and decides that an abortion is quite permissible. However, he is careful to add that this decision merely describes what the law is, i.e., l’Halacha, but he does not decide in favor of this as actual practice (l’maase). He then adds that we should not believe doctors who are exceedingly pessimistic; God may send the woman healing (i.e., without the abortion).

A more recent respondent is entirely negative. He is David Sperber, in his responsa, “Afra-casta de Oni” 169, published in Satu Mare, Rumania, 1940. The husband is epileptic; the wife is pregnant. The doctors advise abortion because the child will very likely be epileptic. Sperber quotes the discussion in the laws about whether epilepsy is ground for divorce. He cites them in order to indicate that none of the older opinions on the matter of divorce express any concern about the health of the children. He denies, then, that epilepsy is hereditary; otherwise it would be an element in the discussion as to whether epilepsy is ground for divorce. He is, however, confronted with the statement in the Talmud, b. Yevamoth 64 b , which forbids a man to wed a member of a family of epileptics, clearly indicating that the Talmud held that epilepsy is largely hereditary, which is exactly the opinion of modern doctors. But Sperber insists that the Talmud means that the family is just unlucky. From which he concludes that the child is not at all likely to be epileptic. Therefore, he says it is forbidden to destroy the foetus unless, of course, it endangers the mother.

A much more thorough, affirmative, and intelligent opinion is given by Ben Zion Uziel, the late Sephardic Chief Rabbi (in “Mishp’tey Uziel” III, 46 and 47). He concludes, after a general analysis of the subject, that an unborn foetus is actually not a nefesh at all and has no independent life. It is part of its mother, and just as a person may sacrifice a limb to be cured of a worse sickness, so may this foetus be destroyed for the mother’s benefit. Of course, he reckons with the statement of the Tosfos to Chullin 33c, that a Jew is not permitted (lo shart) to destroy a foetus, although such an act is not to be considered murder. Uziel says that of course one may not destroy it. One may not destroy anything without a reason. But if there is a worthwhile purpose, it may be done. The specific case before him concerned a woman who was threatened with permanent deafness if she went through with the pregnancy. Uziel decided that since the foetus is not an independent nefesh but is only part of the mother, there is no sin in destroying it for her sake.

In the case which you are considering, I would therefore say that since there is strong preponderance of medical opinion that the child will be born imperfect physically, and even mentally, then for the mother’s sake (i.e., her mental anguish now and in the future) she may sacrifice this part of herself. This decision thus follows the opinions of Jacob Emden and Ben Zion Uziel against the earlier opinion of Yair Chaim Bachrach.

(Originally published in Central Conference of American Rabbis Yearbook, Vol. LXVIII, 1958.)

CURR 14-18

MEMORIAL CANDLES ON YOM K1PPUR

I have been asked concerning an older custom of burning candles in the synagague on Yom Kippur in memory of departed parents. Is this custom widespread and is it well established? (From Rabbi Walter Jacob, Rodef Shalom Temple, Pittsburgh, Pennsylvania.)

IN THE Shulchan Aruch, Orah Hayyim 610:4, Joseph Caro says that it is the custom on the Day of Atonement to light many candles in the synagogues and to spread beautiful cloths. To this Isserles adds that it is a custom that each individual, adult or minor, should kindle a light for himself in the synagogue and also a light for the soul of his father and mother who died. Then he adds: “And so it is proper to do, for thus some of the great scholars have written.”

Thus Caro does not mention the custom of memorial candles at all, but it is Isserles who mentions it. This would indicate that it was a custom which did not develop among the Sephardim, but only among the Ashkenazim. Furthermore, the fact that even Isserles merely recommends it as something worth doing because “some of the scholars recommend it,” would indicate that even among the Ashkenazim it was not a well-established or widespread custom. It would, therefore, be worthwhile to trace the evolution of this custom and perhaps explain how and why it developed.

It is clear that the custom developed as an elaboration of earlier and related practices with regard to the Day of Atonement. The Talmud (b. Shabbas 119a) speaks of how to honor the Day. The verse from Isaiah 58:13 reads: “Do honor to the Holy Day of God,” and the Talmud says this verse refers to honoring the Day of Atonement. The Talmud continues to the effect that since it is impossible to honor the Day of Atonement in the way in which the Sabbath is honored, namely, by extra meals, therefore it should be honored by fine garments. (That is why Caro says that it is the custom to spread handsome cloths in the synagogue on the Day of Atonement.) Asher ben Jehiel (thirteenth century) in his commentary to the Talmud {Yoma, the last chapter) adds another way of honoring the Day of Atonement besides with handsome cloths. He cites the verse in Isaiah 24:15: “In regions of light (b’urim) honor the Lord,” and he calls attention to the fact that Targum (Jonathan) translates the word “urim” as candles or lanterns. Therefore he says there is a custom also to increase the number of candles kindled in the synagogue.

Another reason for increasing the lights of the synagogue besides “honoring the Day,” is given by the Kol Bo (an early Halachic source of debated date, possibly thirteenth or fourteenth century; see Jewish Encyclopedia, Vol. VII, p. 5 3 8) . The Kol Bo says that since people stay all day and all night in the synagogue and have to read all the time, they need many more lights.

Jacob ben Asher in the Tur quotes his father’s opinion (Orah Hayyim, 610) but neither father nor son speaks of individuals each lighting a candle for himself, but merely of increasing the lights of the synagogue. Then how did the idea arise of having individual lights for each person on Yom Kippur? The Kol Bo quotes Asher ben Jehiel that individuals used to light lights for each person. Jacob Weil (fourteenth century) in his Responsa 191 and 192, speaks of the fact that Moses brought down the second tablets of stone on Yom Kippur. Therefore the day represents the “complete” availability of the Torah. Therefore, since men and not women are in duty bound to study the Torah, only the men have individual lights on Yom Kippur. He also says that on this day the judgment is completed for the souls of men, and since the verse (Proverbs 26:27) says: “The soul of man is the light of God,” the lights also began to signify the redemption of the soul of the individual wor-shiper. Thus the Kol Bo says, “God says, ‘Light a light before Me that I might protect your soul which is also called light.'” The parallelism of God’s light (the Torah) and our light (our lives) is based upon the Midrash (Deuteronomy Rabba 4:4).

From the concept that the individual Yom Kippur light was for the redemption of the souls of the living, it was easy to move over to the additional idea that it should also signify a memorial or a redemption for the departed, because it was long held that the dead need redemption, as do the living. This is based upon the verse in Deuteronomy, 21:8: “Atone for Thy people Israel which Thou hast redeemed.” The closing words, “which Thou hast redeemed,” refer to those who came out of Egypt. They were already dead and yet the verse asks that they, too, be given atonement. Therefore the Sifre at the end of Shoftim says, “This teaches us that the dead, too, need atonement.” So the Kol Bo (68) among the various reasons for lighting the extra lights, men tions also that it is a custom that each one lights a light or a lantern at his place in the synagogue to atone for his father or mother. Gaguine, in his Keser Shem Tov, Vol. I, p. 115, Note 153, quotes the Sefer Chassidim as speaking of this custom of the memorial candle on Yom Kippur, but I have been unable to verify the reference in any edition of the Sefer Chassidim. If it is indeed found in the Sefer Chassidim, this would perhaps be the oldest reference. The Kol Bo seems to have the earliest mention of this memorial custom. Few of the other codes mention it, but by the sixteenth century it is found, as we have said, in Isserles and also it is found in Mordecai Jaffe’s Levush (Levush Ha-chor 610). Gaguine in his Keser Shem Tov, Vol. VI, p. 235, in the heading, speaks of this as a world-wide Jewish custom. He would not say so unless he knew of it, since he carefully preserved all these Sephardic customs. But since Joseph Caro does not mention it, while Isserles does mention it, and since none of the Sephardic codes mention it, it may be that Sephardim have picked up the custom from Ashkenazim in recent times.

While all the elements of the observance are already found in the Kol Bo, yet most later codes omit the memorial candle until the sixteenth century (Isserles and Mordecai Jaffe). Evidently the custom spread rather slowly. At all events, the process of the development of the custom of memorial lights for parents in the synagogue seems, therefore, clear enough. Yom Kippur was to be honored by special clothes and garments. Then it was honored by extra lights. Then the custom arose to have individual lights, either because reading had to be done all day or, later, because the soul “which is a light” is redeemed on that day. From the latter idea it spread (chiefly among the Ashke nazim) that the soul of the departed should also have redemption on the Day of Atonement; hence the memorial candles which became known in Jewish parlance as neshomah licht.

CURR 118-125

SURGICAL TRANSPLANTS

What is the attitude of the Jewish legal tradition to the growing surgical practice of transplanting parts of a dead body into that of a living person?

IT should go without saying that Jewish tradition and feeling would be absolutely opposed to hastening the death of a potential donor by even one second, in order that the organ to be transplanted into another body be in good condition. Nothing must be done to hasten the death of the dying. This scrupulousness about preserving the last few moments of life is also the concern of modern medicine. There are serious discussions today among doctors, especially with regard to obtaining organs for transplanting without delay, as to exactly when the potential donor is to be considered actually dead. At first the rule was, when the heart stopped beating; now they are considering a further test, when the brain stops functioning. As the discussion in medical circles continues, they will devise more and even stricter tests.

As far as deciding when the potential donor is actually dead, modern scientific opinions are much stricter than Jewish tradition. The controversy arose a century ago as to whether the Jewish law of immediate burial was too hasty an action or not. Various governments in central Europe decreed that there must be a delay of three days before the burial. The great Hungarian authority, Moses Sofer, defended the Jewish custom of immediate burial (on the same day) and said that our traditional judgment, embodied in the knowledge of the Chevra Kadisha, was sufficient proof of death (see his responsum, “Chasam Sofer, ” Yore Deah 3 3 8) . Let us therefore say at the outset that, at least according to the spirit of Jewish law, the stricter the test as to the time of death which physicians will arrive at, the better it is. We therefore agree with the strict judgments of modern medicine that the patient must be absolutely dead.

But it is from this point on that the real problem begins. Is it morally or legally permissible to take away parts of the body of the dead, and is it further permissible to insert such parts into a living body? The problem is difficult, first of all, because transplanting of organs is an entirely new surgical procedure and, therefore, there could be no direct parallel or discussion of such a procedure in the older literature. Whatever opinion is arrived at on this matter must be derived as the underlying ethical principle behind related discussions in the literature.

There is a second and more direct difficulty in analyzing this question. When we begin to study the ethical implications of related ideas in the Talmud and in the writings of later scholars, we discover that the relevant basic principles seem to be mutually contradictory. Since this fact constitutes an initial difficulty, let us consider it first.

There is a general principle as to healing and the materials used for healing which, on the face of it, is so general as to make all further discussion of this problem unnecessary. The Talmud says (Pesachim 25a): “We may use any material for healing except that which is connected with idolatry, immorality and bloodshed.” These are the three cardinal sins to avoid, for which a person must be willing to undergo martyrdom. But aside from three such sources of healing methods or materials, any material or any method would be permitted. Maimonides, himself a great physician, makes this Talmudic statement even clearer. He says (Hilchos Yesodey Torah, 5:6):

“He who is sick and in danger of death, and the physician tells him that he can be cured by a certain object or material which is forbidden by the Torah, he must obey the physician and be cured.”

This is codified as a law in the Shulchan Aruch, Yore Deah 155:3.

Considering this general permission to use anything we need, no further discussion would seem to be necessary, except for the fact that the body of the dead has a special sacredness in Jewish law. There is a general principle that the body of the dead may not be used for the benefit of the living (mayss ossur b’hana’ah, based on Sanhedrin 47b). If the two principles are taken together, the general permissiveness would then need to be restated as follows: We may use all materials except those involved in the three cardinal sins mentioned above and except, also, the body of the dead.

But this apparent prohibition of using parts of the body of the dead depends upon a closer definition of the word hana’ah (benefit). Later scholars understand the word hana’ah, “benefit,” to mean really not “general benefit,” but rather “satisfaction,” in the sense chiefly of the satisfaction of food. Therefore they speak of materials taken into the body in other ways than by the way of eating, and they call such absorption of material (other than eating) “not in the way of benefit, or satisfaction,” (to k’derech hana’aso). For example, the eating of blood is forbidden, but taking a blood infusion by means of the veins is described as not by way of hana’ah or satisfaction, and therefore is permitted. Thus the question of getting hana’ah (satisfaction) from the body of the dead depends now on whether it is taken as medicine by way of food. If the parts of the body of the dead are taken “not by the way of satisfaction” (derech hana’ah) but inserted into the body in another way, the law forbidding “benefit” from the dead is usually much more permissively interpreted.

There is another phase of the principle that the dead may not be used for the benefit or satisfaction of the living. That has to do with the distinction between Jewish dead and Gentile dead. In general we are in duty bound to heal the sick, bury the dead, comfort the mourners of Gentiles, just as we do with the bodies of Jewish dead (b. Gittin 60a). But with regard to the Jewish dead, Jewish law adds certain special regulations. For example, a Cohen may not be in the same building with the Jewish dead because he may not defile himself except for his own relatives. There are detailed burial requirements as to washing, shrouds, etc., which are required for the Jewish dead. These extra requirements do not apply to the Gentile dead. We are, of course, in duty bound to bury and console, but neither Gentiles nor we are required to obey these additional minutiae of Jewish burial laws. It is sufficient if Gentile dead are respectfully buried and their mourners consoled.

There seems to be no Christian objection to such use of the bodies of the dead. But there is a debate in Jewish law as to whether the body of the Gentile dead may or may not be used for the benefit of the living. The Shulchan Aruch, Yore Deah 349, is inclined to the belief that the body of the Gentile dead may not be so used, but the majority of opinion inclines to the side that such bodies may be used for the benefit of the living (see the authorities marshalled by Moses Feinstein, Igros Moshe, Y.D. 229, 230). Since, therefore, the majority of the available bodies as sources of organs for transplant are Gentile bodies, this detail of the doubt as to whether “benefit for the living” may come from the body of the dead does not have heavy weight.

There is, of course, a third consideration and that is the duty of burying the whole body of the dead. This duty is the source of the basic objection of Orthodox authorities to autopsy. Therefore the question now is whether a part of a body which is inserted into a living body is still to be considered part of the dead, which must be buried, or rather is it now a part of a living body?

All, or almost all, of these rather complex considerations and apparent contradictions which needed to be harmo-nized are discussed in the Talmud and its early commenta-tors, but of course they have no definite statement about the actual consuming or using the body of the dead for the healing of the living. Such an actual use for healing begins to appear in the literature in later centuries.

One of the strangest discussions of the use of the dead medically for the healing of the living, is found in the responsa of David ibn Zimri (Egypt, 1479-1589). He is asked a question which seems bizarre to us, who no longer are aware of medieval popular medical superstitions. It seems that mummies from the ancient Egyptian tombs were in David ibn Zimri’s time a regular article of commerce. They were sold for medical purposes. People would actually eat those mummies to heal certain diseases. He is asked whether it is permitted to get benefit (handah or satisfaction) from these bodies of the dead (Responsa Radbaz, III, 548). He states the general principle that one may not have hana’ah from the flesh of the dead (based on Avodah Zara 29b). Then he says that these bodies, embalmed so long ago with various chemicals, are no longer human flesh but are now another product. The ancient embalming preserved merely the outlines of the features but transformed the flesh into something else entirely. Furthermore, he says, these were once the bodies of the ancient Egyptians and, of course, here the law is less strict than the laws about “benefit” from the Jewish dead.

As far as I am aware, there is no other discussion in the responsa of the use of parts of a dead body for healing. There are some references to the use of tanned skin, but that was not for medical purposes. But in our time there are two detailed discussions of precisely our problem. They are by Moses Feinstein of New York, who may well be considered the prime Orthodox author of responsa (although, indeed, some extreme Chassidim recently denounced him for an allegedly liberal opinion with regard to artificial insemination). Moses Feinstein in his Igros Moshe, Yore Deah, has two successive responsa on the subject (229 and 230). These responsa, although only four or five years old, do not yet know of heart and liver transplants, but the author already knows of bone transplants and that is sufficient for him to marshal all the relevant opinions.

He discusses, as was indicated above, the exact definition of the term hana’ah, benefit, and explains it as literally meaning “satisfaction of food.” Hence that which is taken into the body not by way of food (i.e., not by mouth) is to be considered more leniently. Furthermore, he speaks of the fact that most bodies available for organs are Gentile and therefore the stricter prohibitions do not apply to them. Finally he comes to a conclusion which is vital to the whole discussion, that when a part of a body is taken by a surgeon and put into a living body, it becomes part of a living body. Its status as part of the dead which needs to be buried is now void (botul).

There is a confirmation of the permissive opinion of Feinstein in the responsa of Nahum Kornmehl, published in 1966 in New York, Teferes Zvi, 75. His explanation is really charming. He says with regard to the prohibition of hana’ah from the dead in transplants that when the operation occurs there is certainly no hana’ah for the patient, only misery for days. The hana’ah comes when the transplant comes to life and becomes part of his body. But now it is alive and therefore this has nothing to do with benefit from the dead.

To sum up the discussion: The exceptional nature and rights of the dead body do not stand in the way of the use of parts of the body for healing of another body. The part taken is not taken into the living body as food. Hence it is not considered derech hana’ah. The part becomes integrated into a living body and therefore the requirement of its burial has lapsed. Therefore the general principle first stated remains unimpugned, that “we may heal with any of the prohibited materials mentioned in Scripture.” This is especially true, as Maimonides indicates, because the patients about to receive these implants are actually in danger of death, and for such patients any possible help is permitted by Jewish tradition.

(Originally submitted to the Central Conference of American Rabbis, 1968.)

CURR 141-144

A TOMBSTONE IN ABSENCE OF THE BODY (CENOTAPH)

A group of former immigrants from Central Europe feel the need to visit the graves of their parents, as is traditional. But the parents and other close relatives were murdered during the Nazi period, and there is no possible way of finding their graves, if indeed there are any graves. Their question, therefore, is this: May they (in the Jewish cemetery of Milwaukee, where they live) set up a tombstone where they can visit, and count it as a grave of their parents and other dear ones who have perished?

JEWISH burial and mourning traditions have frequently needed adjustment to the uncertain circumstances of the Jewish life in the Old World. Some of the adjustments made in the law and the customs prove the flexibility of the tradi-tion in providing for the emotional needs of mourning families when the circumstances of the death are unusual. Most of the questions which needed adjustment concern the problem of mourning: When should shiva begin? When should Yahrzeit be observed in the case when a deceased man’s body is no longer to be found; or, indeed, in cases when there can no longer be any proof that the person is actually dead?

The classical decision was made in the twelfth century in the Rhineland by Isaac Or Zorua of Vienna, who said that the moment the family gives up hope, that moment of despair, shall be counted as the moment of death, and mourning, etc., shall begin from that date (Or Zorua, II, Hilchos .Avelus 424; see also Yore Deah 375:6). This indicates at least the willingness of the tradition to adjust itself to the emotional needs of mourners when violence or accident creates the exceptional circumstances that make the body unavailable for burial.

However, the specific question asked here concerns the permissibility of setting up a tombstone in the absence of the body. As far as I know, this question has never come up in the legal literature. It is strange that it has not come up. If the question was frequently asked, “May we say Kaddish if the body was never found,” they could easily have also asked, “May we put up a tombstone if the body was never found.” It would be interesting to speculate as to why this natural question was not asked. It may be because the historic Jewish cemeteries in the Rhineland and in Prague, etc., were so crowded with tombstones that it was often difficult to find a place for those who were actually buried there, much less for those whose bodies were not laid to rest there.

Nowadays the question arises often. Bodies are fre-quently lost at sea or in airplane accidents and are never recovered. The American Military, in cemeteries overseas, have a stone on which is inscribed the names of those missing, and therefore not buried, in the cemetery. In London there is a “cenotaph” right in the middle of one of the main streets, in honor of soldiers who are buried elsewhere or who are missing.

Thus, while there is no discussion in the legal literature about setting up a tombstone where there is no body buried, there is nevertheless a great deal of discussion about tombstones in general, and part of this complex discussion has some relevance here. There is a long debate, going back to the beginnings of Jewish law in the Talmud, as to whether tombstones are meant to be for the honor of the dead or (also) for the benefit of the living. What would be involved in the discussion was whether survivors may dispose of tombstones in case bodies are moved. The whole discussion was summed up in both the Tur and the Shulchan Aruch, Yore Deah 364. Also there is a handy summary of the debate in the responsa of Abraham Isaac Glick, Yad Yitzchok, III:38 (published in Satmar, 1908). What is relevant to our question is that there is a growing body of opinion that the tombstones are also for the benefit of the living. As is said in the above mentioned responsum, the tombstone is for the purpose of directing the survivors to where they can go and pray.

This side of the discussion, that the purpose of the tomb-stone is also to benefit the survivors spiritually, was used in the one responsum which actually deals with almost the same question that you ask. Ephraim Oshry, now rabbi in New York, was, during the Nazi period, in the Kovno con-centration ghetto to which Jews were sent from all over Europe. The Nazis destroyed and plowed over the Jewish cemeteries in the neighborhood. A man came to Rabbi Oshry after the liberation with the following question: Since it is now impossible to locate the graves of his parents and he was accustomed to go to the graves of his parents to pray, what shall he do? Rabbi Oshry advised (responsum M’Mamakim, I:28) that he set up a tombstone anywhere in the cemetery, and that will be an appropriate memorial where he can pray. Oshry uses the argument that tombstones are for the benefit of the living, and also calls atten-tion to the fact that we put up memorials (even memorial plaques with the names of the deceased) in many syna-gogues and schools, far away from where the bodies are buried.

Rabbi Oshry has recently published a second volume of M’Mamakim, in which he returns to the problem in an in teresting and rather touching way: The stones from the Jewish cemeteries had been taken during the Nazi occupa-tion and used as paving stones in certain towns. The ques-tion was, how could Jewish people walk on such paving stones, the inscriptions on which were still legible? He urges that efforts be made to buy those stones, and since the graves to which they belong can no longer be located, since the centuries are plowed up, the tombstones should be set up anywhere in a Jewish cemetery (M’Mamakim, II:20).

Let us, therefore, sum up the situation in Jewish tradition: From the earliest medieval days, adjustments were made (with regard to mourning) when bodies could not be found. With regard to the tombstones, one body of opinion is that they are put up for the spiritual benefit of the living. On the basis of the above, Rabbi Oshry decided that tombstones may be put up, even when the bodies can no longer be located. Therefore, on the basis of the above, a group of you who wish to do so, should set up a tombstone with the inscription of the names that you wish to remember. There can be two or three such stones, perhaps classified according to the cemeteries where they might have been buried had they died normally. Your members from Frankfurt could put up one stone, with all their names recorded, etc. You are free to make one or many stones, as you wish.

The inscription can be easily worked out. It is suggested that you have the usual five Hebrew letters, tav, nun, zadek, bez, heh, which are appropriate because they say, “May their souls be bound up in eternal life.” This can be followed, in English, with: “To the unforgettable memory of our martyred dear ones,” and the list of names. All this is justified on the basis of Jewish law and tradition.

(Originally published in Central Conference of American Rabbis Yearbook, Vol. LXXIV, 1964.)

CURR 33-36

SECULAR MUSIC IN THE SYNAGOGUE

A congregation has been asked to lend its building for a general concert of high-grade music, an operatic star leading the concert. Is it proper to lend the synagogue premises for this purpose? (From Rabbi Joshua O. Haberman, Trenton, New Jersey.)

THERE are a number of full discussions of music in the synagogue. The outstanding one among those discussions would be the famous one of Leon of Modena (Number 6 of his Responsa) on Jews and music. This responsum is to be found in Treasury of Responsa, p. 160.

Modena goes thoroughly into all the questions of music and the Jews and the synagogue. He deals with all the ancient prohibitions which seem to forbid instrumental or secular music in the synagogue on the ground that we are in perpetual mourning for the destruction of the Temple. He disposes of these general objections. Then he justifies the use of music as an aid to the fulfillment of a mitzvah, such as marriage (for which purpose instrumental music was permitted even on the Sabbath) and also as an aid in the service. He also says, in reference to his friend Solomon dei Rossi, who was a choir leader for the Duke of Mantua, that if one is under the command of the King or the Prince, one may study and make music. He ends up with saying that in order to fulfill these various mitzvos, a person is permitted to study music in general. Therefore it is possible to argue that increasing the standard of musical appreciation among our congregations would aid us in enhancing the musical beauty of our services which is, of course, a mitzvah.

In Shulchan Aruch, Orah Hayyim 561, 3, giving the old law, Caro says that we must not have instrumental music at all and that it is forbidden even to listen to it, but Isserles says at the end of the paragraph that for the needs of mitzvos as, for example, weddings, all is permitted. Similar permissions of dancing, etc., are recorded, generally by Isserles, indicating that the people have simply moved away from this excessive puritanism, and that these various pleasures hitherto frowned upon have gradually become permissible.

So we have to consider, in addition to the strictness of the law, what has “become permissible” in the mood of our day. We are now all accustomed to listening to good music and do not find it an hilarity but a cultural satisfaction. Of course, much depends upon the type of music which is to be permitted in the synagogue. To give a sensual, riotous jazz concert in the synagogue would insult the sanctity of the building and would be contrary to Jewish law, as could easily be proved. There are decisions, for example, against holding even temporary Holy Day services in hotel ballrooms where hilarious modern dances are given during the year.

But a high-grade musical concert is culture to us. We do not feel any more that it is a violation of the older objections against any singing and any music. Those objections were already refuted by Leon de Modena and by the life of the people in the time of Isserles.

A negative answer prohibiting secular concerts in the synagogue was given by the Orthodox Professor of the Hildesheimer Seminary in Berlin, Jehiel Weinberg. He calls to mind the prohibition of listening to music altogether, though there is justification for listening to religious music. He bases his opinion on the material referred to above. Even a religious concert which may be deemed permissible in the synagogue should be preceded by the reciting of a chapter of the Psalms, which would make it surely an act of study. But secular music should be resisted in the Orthodox synagogue and the rabbi should never yield to the congregation on the matter.

This strict, unyielding Orthodox opinion is of special historical interest because as Jehiel Weinberg explains, it was written in Berlin during the Nazi times, when Jews were forbidden to meet in any sort of assembly except in the synagogues. Since the German Jews loved music, and concerts of secular music were given in the Liberal synagogues, the inquirer was concerned about the danger that Orthodox Jews would go to the Liberal synagogues to hear music and thus, perhaps, be weaned away from their Orthodoxy.

At all events, it is clear that the Orthodox synagogues had some doubt about the permissibility of a secular con cert in the synagogue, or the question would never have been asked, and Liberal synagogues had no objection. The responsum is in the newly published S’riday Esh, Volume II, 12.

Our answer, however, would be that just as we have lectures on general culture in the synagogue and do not feel that they contradict the mood of the institution, so can we have music as an expression of general culture, specifically since raising the standard of musical appreciation may aid us in our efforts to enhance the beauty of the service, which is a direct mitzvah.

CURR 52-55

SYNAGOGUE CONTRIBUTION FROM A CRIMINAL

A man known or reputed to be a gangster wishes to make a contribution to the Temple. Should his gift be accepted? The question may also arise as to whether a plaque be put up in appreciation of his gift, as is done with other generous donors. (From M.A.K.)

THERE is considerable discussion in the legal literature which relates to the question raised here. The chain of Halachic reasoning begins with the verse (in Deuteronomy 23:19): “Thou shalt not bring the hire of a harlot or the price of a dog into the house of the Lord thy God for any vow; for both these are an abomination….” Aaron of Barcelona, in his Sefer ha-Chinuch, explains the reason for the prohibition as follows: If a lamb is brought to the altar in the fulfillment of a vow, its purpose is to purify the heart, but if one brings a lamb which had been given as the hire of a harlot, it would bring back lascivious memories of the sin.

The law is carried over to the Mishnah (Temura, VI, 2) and thence to the Talmud (Temura 29a ff., Baba Kama 65b). In the Talmud the application of the law is generally restricted. There are opinions given, that the word “harlot” used in the verse applies only to sexual relations with a married woman (which could not be legitimized by marriage) . Other opinions say that only the object itself (e.g., the lamb) may not be given. But if the object is changed (if it be converted into money) or if corn be given to the harlot and the corn is converted into flour, or olives into oil, then these converted objects are no longer unfit and may be brought to the Temple in payment of a vow. So Maimonides records this as the Law (Hilchoth Issure Mizbeach, TV, 14): “Only the object itself (i.e., the payment in its original form) is prohibited to be brought to the altar.” The “hire of a harlot,” etc., is the only “dirty money” mentioned in Scripture as prohibited as Temple gifts, and even these are restricted to the “hire” in its original form.

But there is a further and more important question involved here. The law as given in Bible and Talmud applies only to the Temple in Jerusalem and the altar, etc. Can it be legitimately extended to apply also to the synagogue?

There is considerable doubt about the justification of thus transferring and extending the old Temple restriction to the synagogue. The doubt is clearly expressed by the Magen Avraham (to Or ah Hayyim 153:21). He says that the law refers only to the Temple, and that no classic de cisor has extended it to apply to the synagogue except Jacob Weil. (I could not find the passage he refers to in the Responsa of Jacob Weil.) Therefore the Magen Avraham decides that (since there is doubt whether the prohibition really applies to the synagogue at all) all questions on the matter should be decided l’kula, i.e., permissively.

Magen Avraham’s comment is in reference to the note of Moses Isserles (ad loc.) who does apply the law to the synagogue, and says that no sacred synagogue object or Sefer Torah can come from “the hire of a harlot.” But he adds that money (if the gift is converted into money) may be used. As a matter of fact, the application of the Temple Law to the synagogue was made before Isserles (i.e., before the sixteenth century) by Rabbenu Yeruchem (of Provence, fourteenth century). In his Toldoth Adam V’Chava (Section Chavah, Path 23, part 1) he says that “the hire,” etc., may not be used for a Sefer Torah or for synagogue lights, etc. But he also says (in reference to Temple times) that if a man gave money and she bought an animal, it would be permitted on the altar (because she did not give the object that she recieved).

So as far as the law is concerned, it is clear that as long as the man you refer to does not give the actual money (coins or gift) which changed hands in the prostitution transac-tion, it is not prohibited by the Halacha.

However, our present concern is not restricted to the letter of the law, even though it does have weight with us. We are concerned also with the moral effect upon the community if we accept such a gift. This is a delicate matter and must be carefully weighed. In my judgment you should accept the gift, because it is his obligation (a mitzvah) to support the synagogue and we have no right to prevent a sinner from performing a righteous act. For example, it is a mitzvah encumbent upon a Cohen to bless the people (in the Duchan). But suppose a Cohen has committed a grievous sin, should we allow him to bless the people? To which Maimonides says (Hilchoth Tefilla XV, 6) that he must perform the mitzvah. He says: “We may not tell a man to add to his sin by neglecting a mitzvah.”

So it is in this case. He, as a Jew, has the duty to support the synagogue according to his means. We have no right to prevent him from doing his duty.

But as to putting up a plaque honoring him, that should not be done. Of course, in general, Jewish tradition favors recording and publicizing the names of donors in order to encourage other donors and also in order to prevent a specific giftobject being used or melted up for another purpose. (See Isserles, Yore Deah 249:13, and the whole discussion in Recent Reform Responsa, p. 203 ff.) Neverthe-less, the putting up of a plaque would also be honoring him as a person, and such a man is not one whom the synagogue “delighteth to honor.”

Yet even in this case, something constructive can be done. If he wishes to honor his parents or some other close relative, a plaque can be put up in their name and his name included as the donor. In this case, besides giving a gift to the synagogue, he is honoring his parents, which makes it a double mitzvah.

To sum up, the money itself is changed from its original form and all authorities agree that it is acceptable. As for the donor, it is his duty to support the Temple according to his means and we have no right to prevent him from doing his duty. As for a plaque, he should not be so honored in his own right, but if he wishes to have a plaque put up in memory of a close relative, such a plaque should be put up, and his name mentioned on it as the donor.

CURR 227-230

THE WOMAN’S WIG

Mr. Alfred Rubens of London asks the following question which came up in the course of his research for a book on “Costumes.” Grunwald, in the article, “Costumes” in the Universal Jewish Encyclopedia, says that when the women’s wig (sheitel) was introduced in the late Middle Ages, the rabbis violently opposed its use. What is the evidence of this opposition and what was its basis?

THERE can be no doubt that Jewish women (some of them) wore wigs long before the Middle Ages. The Mishnah and the Talmud make mention of women wearing peak nochris (“the lock or hair of a stranger”). The Mishnah (Shabbas VI, 5) speaks of what a woman is permitted to carry out into the courtyard on the Sabbath and it mentions: “Her hair, the hair of others, and a wig (peak nochris) .” In the Talmud (b. Nazir 28b) there is a discussion of a woman making a vow to be a Nazarite. When the term of a Nazarite vow is over, the Nazarite must shave the head. Now, may her husband annul her vow on the ground that he objects to a wife with a shaved head? In the discussion of the question, one of the discussants says: “But she may wear a peah nochris (a wig).”

If, then, women wore wigs in Mishnaic and Talmudic times, how could rabbis in latter Middle Ages object to it? There are a number of objections which they could and did adduce from the older literature itself.

The first reason may be described as puritanical. They considered the sight of a woman’s hair to be sexually provocative (ervah). The Talmud (b. Berachos 24a) says that the sound of a woman’s voice, the sight of her skin and the sight of her hair are all provocative. This puritanical attitude became a fixed motif in the law. The Shulchan Aruch (Orach Chayyim 75:2) says that it is forbidden to pray within sight of a woman’s hair.

Therefore it became an established custom for women to cover their hair entirely with a cloth. That custom of women covering their hair was already well established in Mishnaic times. In Mishnah Nedarim III, 8, the law is given that if a man vows not to have any benefit from the “black haired,” his vow does not include women. The Talmud (Nedarim 30b) explains this by saying that women’s hair is always covered by a cloth (so their black hair is not seen).

It will be of interest to the writer of a book on “Costumes” to know that (at least in France in the twelfth century) women always used a white cloth to cover their heads. This is clear from Rashi’s comment to the Talmudic passage.

Joshua Boas (sixteenth century, Italy) in his commentary, Shiltey Ha-Gibborim to Alfasi on the passage on the Sabbath law cited above (that a woman may go out on Sabbath wearing a wig) does not disapprove of the custom. He gives the wigs an Italian name, “Coronale. ” In fact he says that the sexual provocation objected to in the Talmud applies only to a woman’s own hair, not to a wig.

But Joshua Boas seems to be the only one who permits the wigs. All traceable later opinions oppose it. Issachar Eilenberg of Posen (sixteenth-seventeenth century) in his Beer Sheva (Responsa 18) attacks Boas’s permissive decision and cites (from a manuscript) the contrary opinion of another and contemporary Italian, Rabbi Samuel Judah Katzenellenbogen. Katzenellenbogen says that when the Rabbis of the Talmud permitted the wig, they permitted it only if worn under the usual head covering.

So it is clear that by the sixteenth-seventeenth century when the custom grew widespread of wearing wigs (evidently it started in Italy) the women began to wear them instead of (not under) the white kerchief. This is evident from the responsum of Jacob Emden of Altona (1697-1778). In his responsum I, 9, he says: “The wig is prohibited if placed on the top of the head in place of the hair (i.e., covering the hair); but it is not prohibited if it is put under the kerchief and on the side of the temples.” Therefore, the hah* was again visible to any passer-by who, of course, would not necessarily know whether it was the woman’s own hair or not. So the old puritanical objection was raised again against women showing their hair in public. Eilenberg, who quotes Katzenellenbogen, decides that the Mishnah permits a woman to go into a courtyard, but not into a public place. To appear in public, that is a violation of “das Yehudis,” i.e., the decencies required of a Jewess.

The next scholar to give a full discussion of the matter was Eleazar Fleckeles (1754-1826) Rabbi in Prague (cf., Teshuvah Me-ahavah I, 47-48). He raises a new objection, namely, that the hair comes from the dead and it is forbidden to have any benefit from a dead body.

Moses Sofer of Pressberg (1763-1839) the leading authority of Hungarian Jewry, in his will forbids the women of his family ever to wear a wig. This will was so greatly honored that it was published with a long commentary by Akiba Joseph Schlessinger and widely studied. In the book called Lev Ha-Ivri, at the passage in Sofer’s will where he forbids the wig, Schlessinger lists many other authorities who forbid it. I cannot cite the exact page since my copy of Lev Ha- Ivri has no pagination. But the passage is easy to find by following the text of the will. Schlessinger’s commentary is well worth reading, not so much for the arguments (for they are only a rehash of the earlier arguments mentioned) but for the strong indignation expressed, indicating that the objections are against what was deemed immoral, and also against a new fashion in the fear of all novelty.