Responsa

NYP no. 5758.9

CCAR RESPONSA COMMITTEE

5758.9

Transporting a Torah Scroll to a Private Bat Mitzvah Ceremony

 

She’elah.

A family in my congregation wishes to celebrate their daughter’s becoming a bat mitzvah, not as part of a synagogue service, but in a private ceremony to be held on a Saturday evening at the local yacht club. The ceremony there, to be conducted by the girl’s tutor, who claims to have semikhah from an Orthodox yeshivah. They have requested the use of a Torah scroll from our congregation. I do not know whether they plan to read from the scroll during the ceremony, and I do not plan to be in attendance. Our board is deeply divided over this issue. Some argue that we should not lend them the scroll, that we should not encourage families to schedule beney mitzvah services away from the synagogue. Others say that we should lend them the scroll, on the grounds that we should do whatever we can to help insure that our members may have a memorable and meaningful religious experience.

Should we lend them a Torah scroll for their ceremony? (Rabbi Bonnie Steinberg, Great Neck, NY)

 

Teshuvah.

In one sense, this is a question about the proper use of a Torah scroll (sefer torah), the times when and purposes for which it may be moved from its honored place in the synagogue in order to meet the needs or desires of individuals. Our tradition offers much specific guidance on that point, and we have much to learn from what it teaches us. In another sense, this is a more general question concerning the nature of the relationship between a congregation and its members, the reasons why congregations are formed and the purposes they serve. On this issue, too, we think that a careful study of that tradition, in both its letter and spirit, will lead to an answer that reflects our best understanding of the values that ought to guide and animate our religious communities.

  1. Transporting a Sefer Torah to a “Private” Service. The halakhic discussion of this subject customarily begins with Mishnah Yoma 7:1, which describes the reading of the Torah by the high priest (kohen gadol) on Yom Kippur. The sexton (chazan) of the synagogue on the Temple mount would hand the sefer torah to the highest synagogue official, who would pass it on to the sagan, the high priest’s deputy, who would then hand it to the kohen gadol to conduct the day’s reading. The Talmud Yerushalmi criticizes this procedure: “everywhere else, we are told to go to the Torah, but here, you say that we bring the Torah to them!” That is to say, our usual conception of the duty to render honor unto the sefer torah would require that the high priest go to the synagogue to read it there. The Talmud answers this objection by noting that since these individuals occupy exalted ritual offices (beney adam gedolim), the Torah scroll is actually honored when it is brought to them.[1] This passage finds its way into two 13th-century Ashkenazic texts, which use it as a basis for two different yet related halakhic rulings. The Or Zaru`a cites it in support of his decision that when an exalted person (adam chashuv) is ill and cannot attend synagogue, a minyan of worshipers may assemble at his home and a sefer torah may be brought to him “so that it may be read in a quorum of ten.”[2] The second source is R. Mordekhai b. Hillel, who quotes a responsum which, basing itself upon the Yerushalmi text, declares: “we do not transport a sefer torah to a prison in order that it may be read to those incarcerated there, even on Rosh Hashanah or Yom Kippur.”[3] Since prisoners are generally not “exalted personages,” it would seem that it is an act of disrespect (zilzul)[4] to take the scroll from its rightful place and bring it to the prison. This decision is in turn codified by R. Yosef Caro: we do not transport the Torah scroll to prisons.[5] Caro does not mention the Or Zaru`a and does not speak to the issue of bringing a Torah scroll to the home of one who is ill.Caro’s ruling, however, is significantly modified by the discussions of two other authorities. The 16th-century R. Meir Katznellenbogen[6] observes that all of the sources which address this issue–the Yerushalmi, the Or Zaru`a, and R. Mordekhai–refer to a situation in which the Torah scroll is simply transported to be read in another place and thereupon returned immediately to the synagogue. This contrasts with “our practice,” in which we overcome the objections against transporting a sefer torah by taking the scroll from the synagogue and placing it in an ark at the “private” location “a day or two” prior to its scheduled reading there. “It would never occur to anyone to prohibit this procedure. No insult (p’gam) is done to the scroll, since it resides in its own special place. And there is no distinction to be drawn between a ‘permanent’ and a ‘temporary’ synagogue.” That is to say, we show disrespect to a sefer torah not because we take it to a “disreputable” place such as a prison but because we move it in an abrupt and thoughtless manner. Moreover, Katznellenbogen offers a slightly different reading of the text of the Yerushalmi: the “exalted personages” are b’ney adam g’dolim batorah.[7] They are Torah scholars, not merely “powerful, wealthy, or influential.” He concludes that if we transport the scroll for the benefit of a noted Torah scholar who cannot come to the synagogue, we do not insult but rather honor the Torah thereby. R. Moshe Isserles cites these views in his emendations to the Shulchan Arukh.[8] This is followed a century later by R. Chizkiyah da Silva, a leading commentator to the Shulchan Arukh, who critiques Caro’s ruling on textual and ethical grounds.[9] His textual argument is that the Yerushalmi passage upon which Caro and the Mordekhai base their prohibition offers no support for it, since the text deals with persons who can go to hear the Torah reading in the synagogue but who for whatever reason do not do so. In such a case, we insult the sefer torah by bringing it out to those persons unless they are “exalted,” like the High Priest and the other Temple officials. Prisoners, by contrast, are anusim, “coerced”, physically unable to come to the synagogue; the Yerushalmi simply does not speak to such a case. His ethical argument[10] asks: on what grounds are we justified in denying these prisoners the opportunity to fulfill their ritual obligation in the only way they possibly can? We do not debase the sefer torah by bringing it to the prison; we honor it thereby. This argument, which effectively overturns the ruling of the Shulchan Arukh, is adopted by numerous later authorities.[11]

    We learn from this discussion that it is generally forbidden to transport a sefer torah from its proper and honored place in the synagogue to be read in a place of “private” worship. To do so is to show disrespect to the scroll; we should strive to bring ourselves to the sefer torah rather than have it brought to us. This rule may be suspended, however, when any one of the following three conditions is met:
    1.  A worshiper is unable for good and compelling reasons (such as illness or incarceration) to attend services in the synagogue, and a minyan is assembled elsewhere for that person’s benefit.
    2.  An “exalted” or “important” individual, most likely a noted Torah scholar, is present, and to assemble a minyan there at which the Torah is read can be said to render honor to the scroll.
    3.  The scroll is placed in an ark at the private place a “day or two” prior to the scheduled service, so as to establish there a temporary synagogue that serves as a “proper” resting place for it.[12]

    When we turn to the case before us, we find that not a single one of these conditions is met. First, as a Shabbat service, a bat mitzvah ceremony is ordinarily held in the synagogue. The family is in no way prevented from scheduling it there, and the invited guests could easily attend it there. The yacht club is no doubt a fine setting for the dinner and celebration that will follow the service, but there is no reason why the service itself cannot be held in the synagogue. The desire to schedule all the day’s events in one convenient location hardly transforms the girl, her family, and the invited guests into anusim, a designation which in this discussion is reserved for those who are physically unable to come to the synagogue. Second, the category of “exalted personage” is irrelevant to our situation. Even were we to assume, for the sake of argument, that the girl’s tutor possesses a genuine semikhah from a recognized institution of rabbinical education and even were he to possess a degree of Torah learning that marked him as clearly above the rabbinical norm, this would not matter: the guests are not gathering at the yacht club in order to “honor” him. Indeed, the point of this service is not to “honor” anyone. Its purpose is to allow this girl to mark her reaching the age of mitzvot by being called to the Torah. It is customary in our day and age to hold such services in the synagogue. It is also customary for rabbis and tutors to be present there, at the synagogue service, and we do not think that we somehow fail to “honor” these teachers when we hold the service in the synagogue rather than in their homes. Third, it is most unlikely that the Torah scroll will be transported in an ark to the yacht club long enough in advance to turn the place into a temporary synagogue. Indeed, it seems clear that the yacht club was chosen as the location, not primarily as a good setting for the ceremony, but because it is especially well-suited for the dinner and party that will follow it. Given such an atmosphere, it is difficult to think of the yacht club in any way as a “synagogue,” even a temporary one.

    For these reasons, we think that Jewish tradition would forbid a synagogue to lend its Torah scroll for this service.

  2. The Congregation and Its Members. It is possible, however, to construct a counter-argument, one that would support a positive response by the congregation to the request of this family. This argument is in fact presented by those board members who contend that the congregation ought to “do whatever we can to help insure that our members may have a memorable and meaningful religious experience.” In this view, we would begin with the assumption that the bat mitzvah ceremony will be held at the yacht club no matter what the synagogue decides. Our only choice is whether to make a Torah scroll available to them, and to say “yes” means that the ceremony will take place in the presence of a powerful Judaic religious symbol. The bat mitzvah will even be able to read from the scroll, though the sho’elet is not certain that the ceremony is to include a Torah reading. The presence of the scroll will also help transform the yacht club into a kind of sacred space, to the point that we might consider it in traditional terminology a “temporary synagogue.” In other words, by allowing the use of its sefer torah for this service the congregation will help see to it that the event will leave a lasting and favorable Jewish impression upon the girl, her family, and their guests. To do this, the argument concludes, is to strengthen Jewish life, and to fulfill that goal is truly to render “honor” to the Torah scroll.Although there is some force to this reasoning, it is more apparent than real; indeed, we find it superficial. For while our synagogues should certainly strive to provide “memorable and meaningful religious experiences” to their people, we should note that in and of itself this term is empty of content. In the name of enabling our people to have a “meaningful religious experience,” we could conceivably advocate virtually any action and justify the violation of virtually any standard of religious practice. We could; but we don’t. That is to say, we know that no matter how “meaningful” the experience we seek to facilitate, there some actions we will not take and some standards which we dare not violate. This is because we cannot define meaning in isolation, apart from a coherent view of Judaism and Jewish religious practice as a whole. An experience is “meaningful” in Jewish terms to the extent that it partakes of that view and reflects our deepest Judaic commitments. And when we perceive that a proposed action runs counter to those commitments and is, perhaps, even destructive of them, we are likely to draw the line at that point, to place a clear limit upon what we are prepared to countenance for the sake of a “meaningful religious experience.”

    In our case, we are asked to provide the sefer torah for the bat mitzvah service, even though our tradition frowns upon the idea, because to do this will produce positive effects upon those in attendance. Yet the question we should ask ourselves is not whether they respond “positively” to the presence of the scroll but whether this is the sort of positive response they ought to have, the “meaning” they ought to derive. The question, framed specifically, is this: does the lending of the scroll help us to achieve the religious and educational purposes of the bat mitzvah ceremony as we understand them, or does it in fact frustrate them? And to this question, our answer is “no.” The point of marking a child’s attainment of religious majority with a formal service is to enable the young person to acknowledge his or her full adult membership in the religious community of Israel. The so-called “ceremony” of bar/bat mitzvah is therefore not a private ceremony or simchah at all but a formal and public act which takes place in the midst of the community itself. It is for this reason that the bar/bat mitzvah “ceremony” is actually a public worship service, a service held on an occasion when the Torah is normally scheduled to be read, such as Shabbat, Rosh Chodesh, or a Monday or Thursday shacharit. By being called to the Torah at such an occasion, the young person affirms that he or she is ready to join the minyan, the adult community whose presence is required in order that the quintessentially public liturgical acts, like the formal Torah reading, can be performed. And it is for this reason that we have been critical of the so-called “Havdalah” bar/bat mitzvah, for although the minchah service for Shabbat is a regularly-scheduled occasion for the reading of the Torah,[13] most of our congregations do not hold a Shabbat minchah service on a regular basis. The “ceremony” perforce becomes a private gathering rather than a public service at which the congregation is present. The emphasis at such a ceremony is upon the private joy of the family and their friends rather than upon the communal/congregational aspects of the event. And since one of the purposes of the bar/bat mitzvah observance is to “encourage attendance at regular services…it would, therefore, be wrong to change the occasion into a completely private service and hold it at a time during which the normal services are not held…unless circumstances which would benefit the congregation dictate a change.”[14]

    In considering the request which prompts this she’elah, we see no such “circumstances.” It is bad enough that the ceremony is scheduled at a “private” time at which the congregation does not conduct services. It is also scheduled at a “private” place, a location away from the synagogue. And in doing so, the family has stripped this ceremony of any explicit link to the synagogue, the congregation, and its regular liturgical calendar. The chosen setting for this “religious” service is truly inappropriate, given that the family could just as easily have held the ceremony in the synagogue. A yacht club is not a synagogue; the presence of a sefer torah–which, since it may or may not be read, may be serving as a mere “prop” for the festivities–does not make it a synagogue; and the obvious inference is that to hold the ceremony there “leads to an emphasis on the social rather than religious aspects” of the occasion, an outcome that should be resisted in no uncertain terms.[15]

    Conclusion. The congregation should not lend its Torah scroll for this ceremony. To do so would be to violate both the letter and spirit of our tradition. It would also be to suggest that, to us, the observance of bar/bat mitzvah is primarily a private, family event, much like any sort of social occasion that might normally take place at a yacht club. And to make that suggestion is to send precisely the wrong message to our people, one that contradicts the core values of Jewish religious life that lie at the core of our teaching. The task of the congregation in this instance is not to help this family have a “meaningful Jewish experience,” for they have chosen to celebrate their “event” in a way that transgresses against one of the basic standards which define the bat mitzvah observance and make it “meaningful” in a truly Jewish sense. Its task is rather to urge them to reconsider the priorities they have set and the values by which they define their Jewishness, especially at a moment when their daughter declares her readiness to think about those priorities and values for herself. Put differently, the synagogue’s job is not to make people feel good about “their” Judaism, but to teach Judaism, a way of life whose patterns are set in accordance with the ideals and the standards by which we as a community determine to guide and direct our practice.

    In saying this, we speak to the specifics of this she’elah. We surely do not mean that a Torah scroll can never be transported from a synagogue to a “private” place. For while the sanctity of the sefer torah teaches that we should ordinarily bring ourselves to its place, there are occasions on which moving a scroll from the synagogue is an entirely proper thing to do.[16] Nor do we argue that a bar/bat mitzvah observance must always take place in a synagogue and can never be scheduled elsewhere.[17] We do insist, however, that each question of this sort be examined and argued in the context of our larger religious commitments and of the purposes that motivate our practice. Given that context, given our affirmation of the sanctity of the sefer torah, our definition of the bat mitzvah observance as a public event, and our understanding of the teaching role that our synagogues can and must fulfill, we answer this question as we do.

NOTES

 

  1. PT Yoma 7:1, 44a, and P‘ney Moshe ad loc.
  2. Or Zaru`a, v. 1, Hil. Keri’at Shema, ch. 9. See also the Hagahat Asheri of R. Yisrael of Krems (14th-cent. Ashkenaz) to Hilkhot HaRosh, Berakhot 1:8, who cites this ruling in the name of the Or Zaru`a.
  3. Sefer Hamordekhai, Rosh Hashanah, ch. 710.
  4. The term is suggested by R. Yisrael Meir Kagan in his Bi’ur Halakhah to Mishnah Berurah 135:14.
  5. Beit Yosef, OC 135, end; SA OC 135:14.
  6. Resp. Maharam Padua, no. 88.
  7. This reading is preferred as well by the Gaon of Vilna (Bi’ur HaGra, OC 135:14) and the Mishnah Berurah, OC 135, no. 50. Katznellenbogen favors it, not only because he has a Yerushalmi text which reads thus, but also because of the continuation of that passage, in which the Talmud objects to the conclusion that the Torah is honored when brought to “exalted persons” on the basis of the Babylonian practice of bringing the scroll to the Exilarch (reish galuta). The Exilarch, according to this objection, may be a high-ranking official, but he is not “exalted” in Torah and mitzvot (see Korban Ha`eidah ad loc.). For this reason, the “variant” text is to be preferred: the “greatness” of the b’ney adam g’dolim and the importance of the adam chashuv lie in their accomplishments in Torah.
  8. Isserles, OC 135:14: Caro’s prohibition (derived from the Mordekhai) against bringing a sefer torah into a prison does not apply if the scroll is placed there “a day or two” prior to its scheduled reading, and we may transport a Torah scroll for the benefit of an adam chashuv even without such advance preparation (Mishnah Berurah, no. 51).
  9. P’ri Chadash, OC 135:14.
  10. This is an “ethical” argument in that it is not supported by a textual reference. R. Chizkiyah has already shown that the Yerushalmi passage proves nothing about the case of prisoners; he now suggests, based not upon a textual citation but upon his own “natural” sense of right and justice, that the Torah scroll is honored when it is transported to those who are physically unable to come to it.
  11. For example, Magen Avraham to OC 135, no. 23, opines that a Torah scroll may be brought to a prison in order that those incarcerated might hear the reading of parashat zakhor, since some hold that it is a Toraitic obligation to hear that reading on its proper day (see SA OC 685:7). The Mishnah Berurah at no. 46 writes that “there are those who disagree” with the Shulchan Arukh position and who hold that so long as one is anus, or prevented against his will from coming to the synagogue to hear the Torah reading, the scroll may be brought to him to allow him to fulfill his obligation. He cites these authorities in his Sha`ar Hatziyun at no. 42. See also his Bi’ur Halakhah, s.v. ein mevi’in, where he clearly sides with Peri Chadash against the Shulchan Arukh’s ruling. The Arukh Hashulchan also rules in this manner: the Torah scroll may be transported from the synagogue for the benefit of one who is either unable to go to the synagogue or who is “exalted” (OC 135, par. 31).
  12. Some recent authorities interpret the “day or two” requirement rather stringently, asserting that the common practice (minhag) is to insure that the scroll rest in its temporary quarters long enough to be read three times. See Arukh Hashulchan, OC 135, par. 32.
  13. M. Megilah 4:1; BT Bava Kama 82a; SA OC 292:1.
  14. American Reform Responsa, no. 36. See also Teshuvot for the Nineties, no. 5754.5, at 69: the private/public issue can also be a problem at when the bar/bat mitzvah observance occurs on Shabbat morning.
  15. See Rabbi’s Manual (CCAR, 1988), 230.
  16. For example, many of our congregations schedule retreats at camps or at other locations away from the synagogue. This is perfectly proper, and there is certainly nothing wrong with taking a sefer torah to a retreat for group worship. Similarly, the Torah scroll may be transported to the site of a large public meeting, a hotel or convention hall, where religious services are to be held.
  17. For example, there can be no objection to holding a service at another location if the synagogue building cannot accommodate the expected number of congregants. It is also an established minhag in our communities for some families to hold their bar/bat mitzvah observances in Israel. While it is possible to critique this practice on the grounds that it takes the young person away from his or her synagogue at precisely the time when he or she is acknowledging membership in that very community, a good religious argument can be made in support of this practice. We cannot say the same for a ceremony at a yacht club.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5758.3

CCAR RESPONSA

In Vitro Fertilization and the Mitzvah of Childbearing

5758.3

She’elah
A couple in my congregation have been trying without success to conceive a child. They have consulted a specialist about the possibility of in vitro fertilization (IVF). They have been told that this procedure will likely involve extensive and uncomfortable testing and great financial expense. They wish to know whether Jewish tradition would require or urge them to undertake the personal, physical and monetary burdens of IVF in order that they may fulfill the mitzvah of procreation. (Rabbi Mark Glickman, Tacoma, WA)

Teshuvah
I. Childbearing, Jewish Tradition, and Reform Judaism. Our tradition indeed considers procreation to be a mitzvah, and Reform Judaism affirms this mitzvah as one of the highest values of Jewish life.

In biblical literature, children are a palpable sign of God’s blessing (Psalm 128). Infertility, by contrast, is viewed as a tragedy. Children signify hope; childlessness is a synonym for despair; and the birth of a longed-for and prayed-for child is grounds for great exultation and joy.[1] The very Hebrew word which denotes the infertile person-`a-q-r/h, “the barren one”[2]-suggests the sadness and emptiness of a life without children. Infertility is the occasion of profound sorrow, a grief so vividly expressed by Rachel, who cries “give me children, or I shall die” (Genesis 30:1), and by Abraham, who declares that in the absence of children all other blessings are worthless (Genesis 15:2).[3] It is with these sentiments in mind that the prophet utilizes the language of infertility to depict the sacred history of Israel. Jerusalem, lifeless in exile, is portrayed as a childless woman, while God’s redemption is heralded in the call: “rejoice, O barren one, who has not given birth…for the children of the desolate one will outnumber those of the one who is married” (Isaiah 54:1). Fertility, among the rewards we are promised for observing God’s commandments (Exodus 23:26; Deuteronomy 7:14), will insure the future of Israel; barrenness is the end of the chain which links generation to generation in the transmission of Torah.[4] It is little wonder that our sages, reading these texts, could declare that “one who is without children is considered as though dead.”[5]

It is understandable, then, that procreation (periyah ureviyah) becomes a mitzvah, a religious obligation for the Jew, derived from Genesis 1:28: “God blessed (the man and the woman) and said to them: Be fertile and increase, fill the earth and master it.”[6] Technically, this obligation is fulfilled when one has produced a son and a daughter;[7] nonetheless, “a man who has already fulfilled this mitzvah is forbidden by way of rabbinic ordinance to desist from procreation so long as he has the power to engage in it.”[8] Traditional halakhah, based upon a contentious interpretation of the language of the verse, regards procreation as a mitzvah for the man and not for the woman.[9] This distinction may seem a curious one; after all, both a male and a female are needed to procreate. Still, since childbirth has always involved significant medical risks for women, the predominant halakhic view may have been motivated by the desire to protect those women for whom pregnancy might pose an unacceptable danger to life and health.[10] Whatever its medical origins, this distinction is simply a way of saying that it is the man and not the woman who bears the legal responsibility imposed by the commandment. Thus, a man who has not yet become a father must marry a woman capable of bearing children, and the court (beit din) is empowered to compel him to do so.[11] In addition, a husband whose wife cannot conceive is entitled-and may even be required–to divorce her in order to marry a woman who can.[12] A woman is exempt from these requirements. This imbalance is remedied, however, by three factors. First, by long-standing custom, communities do not exert their coercive legal powers to force men to meet their procreative duties.[13] Second, although women are not considered exempt from the terms of Genesis 1:28, some authorities hold that they do partake in the related requirement, derived from Isaiah 45:18 (lashevet yetzarah).[14] And third, even if women are not technically “commanded” to bear children, the rabbis acknowledge that they, no less than men, are entitled to the blessings of parenthood. For this reason, the halakhah permits a childless woman whose husband is infertile to demand a divorce in order to marry a man who can give her children.[15]

Reform Jewish teaching is in substantial accord with that of our sacred texts. Though many cultural differences separate our world view from that of our ancestors, we still hold that “it is a mitzvah for a man and a woman, recognizing the sanctity of life and the sanctity of the marriage partnership, to bring children into the world.”[16] Indeed, given our commitment to gender equality in the realm of religious observance, we would apply the terms of this mitzvah to women and to men alike.[17] And just as our tradition understands periyah ureviyah as an essentially Jewish obligation,[18] Reform Judaism admonishes us to bear in mind the Jewish dimensions of this subject. We may be rightly concerned about the problem of world overpopulation. And human beings in any case have the right to determine the number of children they should have. On the other hand, “Jews have seen their progeny…as an assurance of the continued existence of the Jewish people.”[19] “In considering family size…parents should be aware of the tragic decimation of our people during the Holocaust and of the threats of annihilation that have pursued the Jewish people throughout history.” Therefore, “couples are encouraged to consider the matter of family size carefully and with due regard to the problem of Jewish survival.”[20]

None of this implies that procreation is an absolute requirement for every person. As Reform Jews, we place a high value upon personal freedom in the realm of religious observance. Phrases such as “absolute requirement” are conspicuous by their absence from typical Reform Jewish religious discourse. With respect to this particular observance, there have always been those who could not and did not have children; similarly, “there are people who, for a variety of reasons, will be unable to fulfill this mitzvah.” Like other mitzvot, this one is incumbent only upon “those who are physically and emotionally capable of fulfilling it. Those who cannot are considered no less observant and no less Jewish.”[21] Yet this understanding attitude should not be taken to mean that we are somehow neutral as to the decision of a Jewish couple to have children. To say that “procreation is a mitzvah” is to say that it is a positive good and that, barring truly extenuating circumstances, it is the choice that Jews ought to make for their households and families.

For this reason, our she’elah is an especially profound one. The couple who submit it clearly take their Judaism seriously. As such, they regard children not only as the fulfilment of a personal desire but also as the realization of a mitzvah, an act by which we Jews constitute ourselves as a people and as a religious community. The procedure of in vitro fertilization (IVF) may offer the only hope for them to conceive a child. They wish to know whether Jewish tradition and Reform Jewish tradition, both of which stress the importance of having children, teach that they ought to undergo this procedure despite their aversions to it. It is to this issue that we now turn.

  1. Artificial Techniques of Human Reproduction: A Reform Jewish View. In ancient times, the accepted response to barrenness was prayer. Since it was natural to regard infertility as a divine punishment, an “act of God,”[22] the proper course of action was to turn to God in supplication, as did Abraham (Genesis 20:17), Isaac and Rebecca (Genesis 25:21)[23] and Hannah (I Samuel 1-2). Indeed, a refusal to pray on behalf of the infertile was considered an act of grave moral insensitivity. Thus, the rabbis criticize Jacob’s angry response to Rachel (“Can I take the place of God, who has denied you fruit of the womb?” Genesis 30:2) with a question of their own: “is this how one responds to those who suffer?”[24] Significantly, these episodes are cast in a therapeutic context. Infertility is a disease, an ailment that can be “cured” by the correct remedy. And as is generally the case in biblical and much rabbinic literature, the best available “therapy,” for childlessness as with all other diseases,[25] is prayer.

Since then, much has changed. Where healing was once effected primarily by means of prayer, Jewish tradition has for many centuries accepted the practice of medicine (refu’ah) as the correct therapy, the right response to disease. Medicine, our sources tell us, is a mitzvah; it is the way in which we most often fulfill our obligation to save life (pikuach nefesh). While it is surely a good thing to ask God’s blessings upon those who are ill–and we do so in our liturgy–prayer is no longer sufficient therapy. As the talmudic saying puts it, “one who is in pain should go to the doctor”:[26] when we are ill, we must avail ourselves of the remedies devised through human wisdom and scientific knowledge and not place our exclusive reliance upon the hope that God will intervene into the workings of nature.[27]

From all of this, it follows that the various technologies which enable the infertile to conceive ought to be understood as medicine. Our Committee has indeed taken this position with respect to artificial reproductive techniques in general[28] and IVF in particular.[29] Human infertility is a disease, not because it threatens the life and health of the infertile but because it frustrates our attainment of the goal–the mitzvah–of bringing children into the world.[30] The scientific tools developed to cure this disease are therefore advances in medicine and should be welcomed, as we welcome other medical advances, as a positive good. The question we must answer at this juncture is the extent to which this particular kind of medicine ought to be regarded as obligatory. Medical treatment, after all, is a mitzvah, understood in our tradition as a religious duty. And in cases where the medical procedure indicated for a specific condition is a tested and proven one (refu’ah bedukah or refu’ah vada’it), offering a reasonably certain prospect of successful treatment, the tradition holds that a patient is obligated to accept the treatment and can even be compelled to do so.[31] Does IVF, which we clearly regard as medical treatment for disease, fall into this category of “tested remedy”? If it does, then we would have strong grounds on which to urge the couple who bring this she’elah to undertake the procedure despite its discomfort and its cost.

III. IVF as a Medical Procedure. The technology of in vitro fertilization, first developed over fifty years ago, led to a live human birth in 1978.[32] It is a “medically indicated” treatment for infertility resulting from blockage of a woman’s fallopian tubes, male infertility, endometriosis, and “other multiple causes.”[33] The procedure may be summarized as follows.[34] The woman’s ovaries are stimulated with fertility drugs to produce multiple eggs.[35] The woman’s response is monitored by means of urinalysis, blood samples, and ultrasound. Once the eggs are released, the physician may retrieve them through laparoscopy, done under general anesthesia, in which a surgeon inserts a hollow needle, guided by an optical instrument called a laparoscope, into the woman’s abdomen. Alternately, the needle may be inserted into the vagina, guided by ultrasound. This latter method requires only a local anesthetic. Upon retrieval, the eggs are placed in glass dishes and combined with semen collected from the woman’s partner or a donor. The dishes are placed into an incubator for twelve to eighteen hours. If an egg is fertilized and develops into an embryo, it is transferred into the uterus by means of a catheter inserted into the vagina. Should the embryo become implanted in the uterine wall, pregnancy will be detected about two weeks later.

The medical effectiveness of this complicated procedure might be measured in one of two ways. First, given that “tens of thousands of embryo transfers are carried out each year internationally, and thousands of babies have been born” as a result of this therapy,[36] we might well say that in vitro fertilization works, that it has been tested and found to be a “successful” response to the disease of infertility. Yet if we consider the figures from the standpoint of IVF’s rate of success, we find much less ground for encouragement. Estimates range from a rate of 16.9% to 27.9% live births for each group of eggs collected in fertility clinics in the United States, a number which “remains lower than one would like and has not improved much during the last five years.”[37] This rate, moreover, declines further when it is calculated from the beginning of the IVF process, from the point of hormonal stimulation rather than from the collection of the eggs.[38] Such numbers do not suggest a therapy which offers “a reasonably certain prospect of successful treatment.” We might well expect them to improve as IVF techniques are refined in coming years. At present, however, this less-than-heartening success rate virtually begs us to conclude that, while in vitro fertilization offers much hope to those who seek children, it cannot be considered a “cure” for the disease of infertility.

  1. IVF–An Obligation? Given these facts, we are in a better position to address the question: does Jewish tradition require an infertile couple to undergo in vitro fertilization if that procedure is seen as the only means by which they might conceive a child?

We cannot deny, first of all, that in vitro fertilization counts as one of the “miracles” of modern medicine. We would be ungrateful indeed should we fail to acknowledge our good fortune to live in an age which has devised such a means for overcoming a condition that for many centuries has brought great sadness to women and men. Rabbis who counsel infertile couples should not fail to emphasize this blessing offered us by science, the wonderful possibilities it opens for those who yearn to fulfill the mitzvah of procreation. Still, there is a crucial difference between possibility and reality, and the reality of IVF’s success rate suggests that the procedure does not qualify as a “tested and proven” treatment (refu’ah bedukah) for infertility. We have written in connection with other medical conditions that, if a particular treatment cannot be considered a refu’ah bedukah, “if its therapeutic effect upon the disease is uncertain at best, then the patient is not required to accept it.”[39] That reasoning, we think, most certainly applies to this case.

To say that a person is “required” or “obligated” to accept a particular medical treatment means as well that, as best as medical opinion can determine, the therapeutic benefits of the treatment significantly outweigh its potential risks and side-effects. To be sure, the benefits of IVF are obvious, in the form of the “thousands of babies” it has brought into the world, and its untoward side-effects are not as clear. Physicians, for example, report that the general risks of surgery to the infertile woman “have been minimized with careful medical practice… (and) the birth defects that have been observed (in children born of IVF) occur in frequencies and types not significantly different from that found in the general population.” On the other hand, “these comforting results are… all short term.” There is some evidence that the use of fertility drugs for ovarian stimulation may significantly increase the risk of contracting ovarian cancer later in life. In addition, little is known about the long-term potential for introducing genetic defects that become manifest later in the child’s life. The increased frequency of multiple births, resulting from implantation of several embryos in the uterus at a time, is another source of health risk, as is the use of cryopreservation (freezing of embryos for later implantation.[40] It is understandable that some women do not wish to accept these potential health risks for themselves or for the children they might conceive.[41] And however we ourselves might draw that fateful balance between the possible blessings and the potential risks of IVF, the dubious success of this procedure makes it difficult in the extreme for us to assert that a particular woman is somehow “required” to undertake the procedure.[42]

Then, too, we cannot ignore the matter of cost. As of a few years ago, the estimated expenditure for a couple in the United States achieving a successful delivery by IVF ranged from $44,000 to $211,940, the costs rising (and chances of success diminishing) with each failed cycle of treatment.[43] True, we might say that “money is no object” and that successful medical treatment ought to be regarded as a “priceless” commodity. But how “successful” is this treatment? Given that failure is the probable outcome of each IVF treatment cycle, it is again difficult to justify an “obligation” to undertake its extraordinary expense.

Finally, let us not lose sight of what our she’elah terms the “personal” burdens associated with IVF. Any surgery is an invasive procedure which by its nature inflicts physical discomfort and psychological distress upon the patient. This particular form of surgery, an arduous process which offers uncertain prospects of success and which touches upon some of the most sensitive aspects of personality and marital life, may well cause even greater suffering. Infertile women and couples who have reached the point of considering IVF have already travelled a difficult and painful road in their lives. To tell them that they are “required” to submit to this procedure–especially when it does not offer them a prospect of probable success–is but to increase to no good purpose the anguish they have already suffered. In cases such as this, we think it better to follow instead the counsel of compassion, of rachmanut; let us listen to the voice of those who suffer rather than insist they hearken to ours.

Conclusion. Jewish tradition regards the bringing of children into the world as a mitzvah, a religious duty. At the same time, it does not require or oblige this couple to undertake in vitro fertilization. How can an act be both a mitzvah and yet not obligatory? One way of thinking about this question is to remind ourselves that the word “mitzvah” can indicate a general religious requirement, one that applies to most of us, even the preponderant majority of us, most of the time, but which exempts particular individuals depending upon the circumstances of their lives. For example, Jewish law recognizes that, in general, we all bear the duty to save human life, to rescue those who are in danger, but this obligation does not apply to the individual who for some reason is “unable” to perform the rescue.[44] With respect to our issue as well, while it is true that as a species and as a people we are “required” to bring children into the world, it is also true that Jewish law accepts that there are exceptions to the general rule. Thus, it neither compels individuals to marry nor infertile couples to divorce.[45] And, significantly, it does not demand that a woman sacrifice her health for the sake of this mitzvah; as one emiment authority has put it, “one is not required to lay waste to one’s life in order to ‘settle the world.’”[46]

We might also keep in mind that our tradition draws a distinction between mitzvot which are defined as chovah and those which are not. A chovah, or “obligation,” is a religious duty that one is required to perform, regardless of the expense or inconvenience involved. At the same time, there are a number of mitzvot which do not impose absolute requirements; “one who performs this act receives a heavenly reward for doing so, but the one who does not perform it is not punished thereby.”[47] We might say that the decision to undertake IVF falls into this latter category. Reform Jewish teaching would endorse this distinction. It is certainly a mitzvah to have children, and couples considering IVF or similar procedures deserve our full encouragement and support. Still, if this couple decides against IVF, we must pay the highest deference to their freedom, human dignity, and unique experience.

Finally, we should note that IVF and other artificial techniques of reproduction are not the only means whereby this couple might hope to fulfill the mitzvah of bringing children into the world. They may create their family by way of adoption, for as we have noted elsewhere, the relationship created by adoption is equivalent in every respect to that between parents and their biological children.[48] Should the couple choose to take this path to parenthood, they are entitled to all the assistance and encouragement which our community can offer them as they continue to build their Jewish household.

 

NOTES

[1] Such as Hannah’s prayer of thanksgiving (I Samuel 2) and Sarah’s happiness (Gen. 21:6-7).

[2] While the Bible refers more often to female than to male sterility, the latter is not unknown; see Deut. 7:14 and Rashi ad loc.

[3] Other examples include Sarah (Gen. 16:2; see Rashi ad loc., from Bereshit Rabah 45:2), Isaac and Rebecca (Gen. 25:21); Hannah (I Samuel 1-2), and the Shunamite woman (II Kings 4).

[4] See the comment of Sforno to Ex. 23:26.

[5] BT Nedarim 64b; Rashi to Gen. 30:1. The Torah Temimah comments upon that verse: “the Talmud teaches here that the course of life is a thread that stretches from parents to children. When one has no children, the life-thread of that individual has been severed, and he is as though dead.” See also Bereshit Rabah 45:2, cited in note 3: one who is without children lines in a state of “ruin” (harus; a play on the biblical term ibaneh in Gen. 16:2).

[6] The midrash which derives the law from Gen. 1:28 is found in M. Y’vamot 6:6. On the law itself, see Yad, Ishut15:1 and SA EHE 1:1. It is interesting that although this verse is addressed to Adam and Eve and therefore to all humankind (and compare Gen. 9:1), the halakhah does not count procreation as one of the “Noachide” mitzvot: it is an obligation for Jews alone (BT Sanhedrin 59b). For this reason, a Gentile who has children and then converts to Judaism has fulfilled the obligation to procreate provided that the children convert as well (Yad, Ishut 15:6; SA EHE 1:7). Although some poskim disagree, holding that a proselyte’s Gentile children do “count” toward fulfilment of the mitzvah (Resp. Maharil, no. 223), others note that this has to do with the issue of relationship (yichus: Jewish law recognizes the legal relationship between members of Gentile families), and we should not infer from this dispute that either side holds procreation to be a mitzvah for Gentiles as well as for Jews (Tosafot, Yev. 62a, s.v. beney.

[7] M. Y’vamot 6:6, according to the position of Beit Hillel, who derive the “male and female” standard from the precedent of Adam and Eve, as opposed to Beit Shamai, who rely on the precedent of Moses, who fathered two sons. Yad, Ishut 15:4; SA EHE 1:5.

[8] Yad, Ishut 15:16, from the statement of R. Yehoshua, BT Y’vamot 62b.

[9] See M. Y’vamot 6:6 and BT Y’vamot 65b. The s’tam mishnah assigns the mitzvah of procreation to the man, while R. Yochanan b. Beroka, noting that the language of the verse is in the plural voice, holds that both the male and the female are obligated under the commandment’s terms. The Talmud explains the setam position by the text’s word vekhivshuhah, “and master it”, literally, “and conquer it”: just as it is the way of the male, and not the female, to “conquer,” so does the rest of the verse, including the words peru urevu (“be fruitful and increase”) apply exclusively to the male. The meaning of “conquest” here is ambiguous: while the term may well refer to warfare, a traditionally male pursuit, some sources suggest that it deals with the husband’s mastery or dominance in the marital home; see Bereshit Rabah 8:12 and Bartenura to the mishnah. The Talmud, continuing the debate, replies on behalf of R. Yochanan b. Beroka that the word vekhivshuhah, like the rest of the verse, is written in the Hebrew plural; thus, it applies equally to the woman and to the man. The response to this is that while the word is vocalized in the plural, it is written chaser, “defectively,” as though it is a singular word, indicating that the Torah limits the obligation of this verse to the male alone. The later halakhah, beginning with the talmudic sugya at BT Y’vamot 65b, accepts the setamposition as authoritative (Halakhot G’dolot, ed. Hildesheimer, 2:240-241; Yad, Ishut 15:2; SA EHE 1:13).

[10] The Talmudic discussion does not mention these medical considerations. Later authorities, however, might well take them into account in their understanding of a woman’s religious obligation with respect to childbearing. See Resp. Chatam Sofer, EHE 20, discussed below at note 45: a woman is not obligated to conceive under the terms of Isaiah 45:18 when the pregnancy poses more than the usual health risk.

[11] BT Y’vamot 64b; Hilkhot HaRosh, Y’vamot 6:16; SA EHE 1:3.

[12] BT Y’vamot 65a-b and Ketubot 77a; Yad, Ishut 15:7-8; SA EHE 154:6.

[13] Resp. R. Yitzchak b. Sheshet, no. 15, and Isserles to EHE 1:3.

[14] This theory is developed by the Tosafot (Gitin 41b, s.v. lo; Bava Batra 13a, s.v. shene’emar). The requirement of l’shevet yetzarah, because it is derived from a prophetic source (divrey kabalah), is considered less stringent than that of p’riyah ur’viyah, which is based upon a verse in the Torah. Nonetheless, the fact that women may be subject to this requirement makes a difference in traditional halakhic thought. Thus, the permit to sell a sefer torah in order to raise the funds needed to marry applies to women as well as to men, since women, though they are not obligated under Genesis 1:28, are nonetheless “covered” by Isaiah 45:18. See Magen Avraham to SA Orach Chayyim 153, no. 9; Beit Shmuel to SA Even Ha`ezer 1, no. 2; and Resp. Tzitz Eliezer 10:42.

[15] BT Y’vamot 65b; Yad, Ishut 15:10; SA EHE 154:6. Should the husband refuse this demand, the court may compel him to issue a get.

[16] Gates of Mitzvah, A-1, 11.

[17] In this, we would follow the position enunciated by R. Yochanan b. Beroka in M. Y’vamot 6:6 and BT Y’vamot65b; see note 8. His midrash, that the biblical verse speaks in the plural, is surely more compelling than that which supports the opposing view. We would categorically reject any attempt to determine religious obligation based upon some “tendency” of males toward conquest or domination.

[18] See note 6.

[19] Gates of Mitzvah, 9.

[20] Ibid., A-2, 11.

[21] Ibid., note. See also the sources cited in note 12: the “long-standing custom” in traditional Jewish practice “is not to coerce on this matter.” The community, that is to say, does not intervene into the lives of couples who for any reason do not have children.

[22] See Genesis 20:18 (“for God had closed fast every womb of the household of Avimelekh”; Genesis 29:31 and 30:3 (“Can I take the place of God, who has denied you fruit of the womb?”); I Samuel 1:5-6 (“for God had closed her womb”).

[23] While according to the literal sense of the verse Isaac prayed alone, the rabbis understand the words l’nokhach ishto to mean that both husband and wife offered prayers; Rashi ad loc, from Bereshit Rabah 63:5.

[24] Bereshit Rabah 71:7. The midrash continues: “by your life, your (Jacob’s) sons will one day pay fealty to her son” (i.e., Joseph; see Gen. 50:18-19, especially Joseph’s repetition of his father’s words: “can I take the place of God?”).

[25] The idea of disease as a divine recompense for our misdeeds and of healing as a sign of God’s favor appears throughout our texts. See, for example, Ex. 23:25; Lev. 26:16; Deut. 7:15; BT Berakhot 60a (bottom, the prayer which suggests that human beings have no business engaging in medicine in response to illness); and especially the comment of Nachmanides (Ramban) to Lev. 26:11.

[26] BT Bava Kama 46b.

[27] As Ramban writes (to Lev. 26:11), once Israel chose to live its life in accordance with the laws of nature, rather than according to God’s special providence, “the Torah will not make its laws depend upon miracles.” That is to say, if pikuach nefesh is a mitzvah (see BT Yoma 85b to Lev. 18:5), then the correct way to fulfill that obligation is through the practice of medicine, which unlike prayer does not require a special intervention by Heaven. For a more detailed discussion see Teshuvot for the Nineties (TFN), no. 5754.18, 373-375.

[28] See American Reform Responsa (ARR), nos. 157-159.

[29] See Reform Responsa for the Twenty-first Century, no. 5757.2, vol. 1, pp. 159-168, “In Vitro Fertilization and the Status of the Embryo,” https://www.ccarnet.org/ccar-responsa/nyp-no-5757-2 .

[30] On this, see responsum 5757.2 at note 7: “by ‘disease’ we mean a condition in which some aspect of our biological or psychological systems does not function properly.” And in note 7 itself: “This suggests that the definition of ‘disease’ is largely a matter of social construction: that part of our biological or psychological systems is functioning ‘improperly’ is a judgment we make based upon a conception of what ‘proper’ functioning is. Accordingly, we may define human infertility as a disease and the procedures designed to correct it as ‘medicine’.”

[31] See our discussion in TFN, no. 5754.14, 348-349, at notes 38-40.

[32] J. Rock and M. F. Menkin, “In vitro fertilization and Cleavage of Human Ovarian Eggs,” Science 100:105 (1944); P. C. Steptoe and R. C. Edwards, “Birth After Reimplantation of a Human Embryo,” Lancet 2:336 (1978).

[33] Joseph Schenker, M.D., “Medically Assisted Conception: The State of the Art in Clinical Practice,” in Patricia Stephenson and Marsden G. Wagner, eds., Tough Choices: In Vitro Fertilization and the Reproductive Technologies(Philadelphia: Temple U. Press, 1993), 25-36. The citation is at p. 26. Dr. Schenker is Professor of Obstetrics and Gynecology at Hadassah Medical Organization, Jerusalem. At the time of this writing, he was chair of the department and president of the Israeli Society of Obstetrics and Gynecology.

[34] This description is taken from Andrea L. Bonnicksen, “In Vitro Fertilization and Embryo Transfer,” Encyclopaedia of Bioethics (New York: Simon and Schuster MacMillan, 1995), 2221ff.

[35] Schenker, “Medically Assisted Conception,” adds that the current trend is away from drug-stimulated menstrual cycles and toward “natural cycle IVF”, which poses fewer risks to woman and child.

[36] Bonnicksen, “In Vitro Fertilization and Embryo Transfer,” 2222.

[37] See Michael E. McClure, M.D., “The ‘ART’ of Medically-Assisted Reproduction: An Embryo is an Embryo is an Embryo,” in David C. Thomasma and Thomasine Kushner, eds., Birth to Death: Science and Bioethics (Cambridge: Cambridge U. Press, 1996), 35-49. Dr. McClure is the Chief of the Reproductive Sciences Branch, Center for Population Research, National Institute of Child Health at the National Institutes of Health, Bethesda, Maryland. The citation is at p. 42.

[38] One such estimate, taken from a survey of several national registries, is a success rate of 9% to 13%. See Jean Cohen, “The Efficiency and Efficacy of IVF and GIFT,” Human Reproduction 6 (1991), 5:613-618.

[39] It could be argued that a 16.9% to 27.9% success rate ought to be accepted as a “proven treatment” because it raises the chances of conception to roughly equivalent with natural conception. But this is not what we think refu’ah bedukah means. The infertile couple do not measure medical success by the degree to which their attempts to conceive enjoy the same rate of success as that of other couples. For them, “success” means a successful conception leading to a live birth. Such is a reasonable definition, as it is the prospect of actually having a baby that brings them to IVF in the first place. And until the rates of conception and live birth significantly improve, we do not think the procedure currently qualifies as refu’ah bedukah.

[40] TFN, no. 5754.14, at pp. 348-349.

[41] McClure, “ART,” 43-46.

[42] See Cynthia B. Cohen, “‘Give Me Children or I Shall Die!’ New Reproductive Technologies and Harm to Children,” Hastings Center Report 26:2 (March-April 1996), 19-27, arguing that a decision not to have children is certainly ethical if we know we are subjecting them to significant risk by conceiving them through artificial technologies.

[43] McClure,”ART,” 43.

[44] See BT Sanhedrin 74a, from Lev. 19:16 (“do not stand idly by the blood of your fellow”), which declares that whoever sees his fellow in danger is “obliged” (chayav) to save him, and Yad, Rotzeach 1:14, where this obligation is formulated thusly: “whoever is able [emphasis added] to save (another) and does not do so violates the commandment ‘do not stand idly by the blood of your fellow.’”

[45] And, again, see the sources at note 13: it has long been customary not to coerce over this very matter.

[46] Resp. Chatam Sofer, EHE, no. 20.

[47] The quotation, taken from Mishnah B’rurah 260, no. 1, is found as well in Isserles, Darkei Moshe to Tur OC 260; he in turn derived it from the 13th-century work Or Zaru`a, Hil. Erev Shabbat, par. 7. The Talmudic source is BTShabbat 25b: “the kindling of the Shabbat lamp is an obligation (chovah), while washing one’s hands and feet in warm water on Friday afternoon (see Rashi ad loc.) is a voluntary act (r’shut); but I [the transmitter of this statement] say that the latter is a mitzvah,” meaning neither obligatory not entirely “optional”. On this subject in general, see the article “Chovah, mitzvah, ur’shut,” Encyclopaedia Talmudit, vol. 12: 645-679.

[48] See our responsum “Kaddish for Adoptive and Biological Parents,” Teshuvot for the Nineties, no. 5753.12, pp. 201-201, https://www.ccarnet.org/ccar-responsa/tfn-no-5753-12-201-207.

NYP no. 5758.2

CCAR RESPONSA

Baby Naming for a Religiously-Mixed Lesbian Couple

5758.2

She’elah

A lesbian in my congregation is pregnant through artificial insemination. The sperm donor is Jewish. This woman has a permanent, committed relationship and is living with a woman who is not Jewish. The non-Jewish partner intends to pursue formal adoption proceedings, so that both partners will be the legal parents of the child. At this point, the non-Jewish partner has indicated no intention of converting to Judaism. The Jewish partner wishes to arrange a

formal naming ceremony for the baby (ultrasound indicates that the child will be a girl), but she wants her partner to be included in some way in the ceremony. To what extent may the non-Jewish partner be involved in the naming ritual? Would it be possible to give her a Hebrew name for purposes of the ceremony and to include that name on the child’s naming certificate? (Rabbi Benjamin Lefkowitz, Warwick, RI)

Teshuvah

As the sho’el’s wording indicates, the issue we confront here is the participation of a Gentile parent in a Jewish life-cycle ritual involving her child.

This implies, and correctly so, that the sexual orientation of the couple is irrelevant to our she’elah. As far as we or anybody should be concerned, we deal here not with a “lesbian couple” but with a household, one of “the nuclear social and family units that compose our communities and whose strength and stability are primary Jewish religious concerns.” This statement is included in our recent teshuvah “On Homosexual Marriage.”[1] While we were deeply divided in that responsum on the question of rabbinic officiation at same-sex commitment ceremonies,[2] we noted that there is no reason why a gay or lesbian couple, like any other Jewish household, should not observe the significant moments of their religious lives through accepted Jewish rituals performed in the midst of their people. It is also irrelevant to our she’elah that the mother’s partner shall be the adoptive rather than the biological parent of the child. As we have written, the best interpretation of Jewish law erases all invidious distinctions between biological and adopted children; adoptive parents are therefore in every respect the “real”parents of their children.[3]

The question rather is one of community and of our membership in it. We stress here that a baby-naming ceremony is not a private matter but a public Jewish act, a ritual performance by which we as Jews assert our identity as a particular religious community and declare our determination to uphold the terms of that community’s special covenant with God. It is the moment at which Jewish parents accept their obligations toward both the Jewish past and the Jewish future, affirming their readiness to transmit the Torah and the heritage of Israel to the next generation of our people. We surely do not wish to exclude the non-Jewish parent from taking part in this ceremony. Nonetheless, the conferral of a Jewish name upon a newborn is not simply a family simchah but the setting for communal identification; it is a Jewish service, one that should be conducted in a manner coherent with our understanding of Jewish history, destiny, and purpose.

How can the rabbi best balance the Jewish requirements of this service with the family’s desires? We think that our responsum “Gentile Participation in Synagogue Ritual”[4] provides a helpful model. In that teshuvah,[5] we distinguish between the “essential elements” of the synagogue service and all other parts of the service. The essential elements include such rubrics as the recitation of the Shema and its accompanying benedictions, the tefilah, the rituals surrounding the reading of the Torah, and any berakhah, a blessing which begins with the barukh atta formula. Our tradition understands these as liturgical obligations (chiyuvim) deriving from the covenant relationship between God and Israel. Through the performance of these rubrics, the individual reaffirms his or her membership in that covenant, and the congregation constitutes itself as a Jewish religious community.[6] One who recites them in a Jewish religious setting thereby declares him- or herself to be a Jew. It is therefore inappropriate for a Gentile to do so, since the Gentile cannot become a Jew until he or she chooses to do so through the process of conversion. On the other hand, a non-Jew may recite before the congregation a special prayer added to the service, one which is not part of the liturgy’s “essential elements,” so long as the text of that prayer does not entail or imply that the individual who recites it is a Jew.

We might define the “essential elements” of a baby-naming ceremony as those benedictions or texts which reflect the specifically Jewish nature of this event or which emphasize our existence as a Jewish community. Let us take, for example, the “Covenant Service for a Daughter” (hakhnasat bat laberit) which is included in the 1988 edition of the CCAR Rabbi’s Manual, pp. 16-24. In that liturgy, the parents recite the benediction asher kideshanu bemitzvotav vetzivanu lehakhnisah beverit am yisrael ( “who hallows us with mitzvot and commands us to bring our daughter into the Covenant of our people Israel”; p. 20), derived from the blessing traditionally recited at the circumcision of a boy.[7] It is inappropriate for a non-Jewish parent to recite this benediction, since he or she is not a member of the people of Israel, the community that is constituted by God’s mitzvot, and therefore does not share in the obligation to raise his or her child as a Jew. At the same time, the Gentile parent may certainly read another text or make remarks suitable to the occasion. Our point is simply that she ought not to participate as a Jew in this ritual. Those aspects of our liturgy which declare and affirm our Jewish identity should be recited and performed by Jews.

From this, it follows that we would not assign a Hebrew name to the non-Jewish parent for purposes of this ceremony or for inclusion on the certificate of naming. As our Committee has written, “it would, therefore, be appropriate that the name of the Jewish partner be used, and that name alone.” To do otherwise “would further blur the lines of identity. If, of course, the non-Jewish partner converts, then a Hebrew name can be inserted into any existing document.”[8]

The presence of the rabbi at this ceremony should remove any and all doubt that it is a Jewish service. The boundaries upon which we insist, although they are absolutely necessary if we are to insure our distinct identity as a people and a religious community, are not meant to raise the barriers of exclusion against “outsiders.” The rabbi will of course convey this message to the non-Jewish parent, along with our hope that she will one day make the choice for Judaism, traversing the boundaries to join us as a bat yisrael.

NOTES

 

  • Responsa Committee 5756.8, published in CCAR Journal, Winter, 1998, 5-35. The citation is at p. 28.
  • The majority of our Committee sided against rabbinic officiation. The responsum presents the argumentation for both the majority and the minority viewpoints.
  • Teshuvot for the Nineties

(TFN), no. 5753.12, 201-207. See at 206: “Parents of adoptive children, who love them as their own, care for them, and guide them, who stand by them during the crises and the joys of their lives, who raise them to adulthood, who teach them Torah and worldly wisdom thereby become the real parents of these children.”

  • TFN

, no. 5754.5, 55-75.

  • As well as in others that served us as precedents. See, for example, American Reform Responsa (ARR), no. 6, 21-24, and R. Solomon B. Freehof, New Reform Responsa (NRR), no. 7, 33-36.
  • One way in which the tradition expresses the concept of chiyuv is through the rule that one who is not subject to a particular obligation cannot help another person fulfill that obligation for him- or herself (M. Rosh Hashanah 3:8; SA OC 589:1). The sheliach tzibur, the one who leads the worship service, falls into this category, since the members of the community can fulfill their liturgical obligations by responding “amen” to the benedictions recited by the worship leader. A Gentile, who bears no “obligation” to affirm his or her Jewish identity, therefore cannot serve as sheliach tzibur.
  • Rabbi’s Manual

, 11. Other benedictions in the service include borey peri hagafen and shehechiyanu (p. 23), which according to the printed directions are recited either by the rabbi or by all those present.

  • Contemporary American Reform Responsa

, no. 34. See also TFN, no. 5755.2, 249.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5758.1

CCAR RESPONSA

The Reform Rabbi’s Obligations Toward the UAHC

5758.1

She’elah

During the past year, there has been significant controversy concerning how the Union of American Hebrew Congregations (UAHC or the Union) shall raise its monies. Are Reform rabbis ethically obligated to support the Maintenance of Union Membership (MUM) program of the UAHC? Is the rabbi of a Reform synagogue ethically obliged to take a leadership role in his or her congregation to urge its leaders to fulfill their financial obligations toward the UAHC? (Rabbi James Simon, Worcester, MA)

Teshuvah

This question poses a special challenge to the members of this Committee. We are all Reform rabbis. The vast majority of us are ordinees of the Hebrew Union College-Jewish Institute of Religion (HUC-JIR), the North American yeshivah of the Reform movement which derives a large portion of its budget from the MUM dues collected by the UAHC. The chair of this Committee, moreover, is a faculty member at HUC-JIR. We therefore owe our rabbinical educations and our livelihoods in no small measure to the UAHC and to the funding it raises for our rabbinical school. At the same time, many of us are rabbis of synagogues affiliated with the UAHC, congregations whose fiscal health is never a sure thing and which struggle to balance their own budgets. Since MUM dues make up a significant proportion of a Reform congregation’s annual appropriations, the synagogue’s members and leadership, including its rabbinical leadership, understandably question the value that this particular expenditure offers to their institution. None of us, in other words, qualifies as a purely “objective” observer in this matter.

Yet as rabbis we cannot evade this question, despite our clear professional or financial stake in the answer we give to it. This she’elah, at its core, asks that we think about the nature of our religious community, to define its structure and circumference. It requires that we explain with some precision our understanding of Reform Judaism as a “movement,” as an institutional phenomenon whose existence and fiscal health depends upon the contributions of its members. In addition, it demands that we consider our proper role as rabbis, as teachers and scholars who work within the context of our particular Jewish community. These issues are not new ones, inventions of our own time. They have been the subject of Jewish communal discussion for many centuries. More than that: they have been the subject of rabbinical analysis, of debates and decisions carried on by rabbis in the language of sacred text, recorded in the halakhic literature of codes, commentaries and responsa. The record of Jewish tradition, that is to say, teaches us that this question is not the exclusive province of the “laity”. We therefore consider it our duty to take up this she’elah, even though we cannot claim some sort of dispassionate objectivity as to its teshuvah.

We should note at the outset one important point. As of this writing, much of the controversy surrounding MUM contributions (a controversy which may well have produced this she’elah) concerns the precise level of a congregation’s membership dues to the UAHC and the financial basis upon which these dues are calculated. Our sho’el does not ask us to consider these problems, and at any rate, they lie outside the boundaries of our competence as rabbis. Our task, instead, is to discuss the broader parameters of this issue: how does our understanding of Jewish tradition inform our perception of the obligations of Reform synagogues and rabbis toward the institutions of the wider Reform movement?

1. The UAHC As Our Community. In 1986, this Committee issued a responsum which concluded that the member congregations of the UAHC “are obligated to support this national organization at the level set by duly elected representative delegates.”[1] The teshuvah justifies this conclusion, in part, by citing as precedents a number of historical examples of financial contributions made by Jews to regional, national, or world-wide bodies. These include the half-shekel donated to the Temple in Jerusalem and the communal structures established in medieval Europe to collect taxes on behalf of the general government. These “precedents”, of course, do not correspond to our own communal situation. The Temple was an institution quite different from any other in Jewish history, and the medieval governments, unlike our own, considered us an alien element within the state, in which we did not exercise the rights of citizenship. The duties we owed to these institutions were imposed upon us by “superior” authority, either by the Torah itself[2] or by the government exercising its inherent powers;[3] we had no choice but to meet them. The UAHC by contrast is a democratic organization controlled by its members, who accept their financial obligations toward it voluntarily. The past, in these cases, may not offer us much in the way of useful guidance.

The 1986 responsum, however, does cite a third historical example which speaks more directly to our contemporary circumstances: the takanot hakahal, legislative enactments made by a community for the maintenance of its vital institutions and the governance of its public affairs. These ordinances defined the very nature of the kahal, the “community,” as a political institution, determined its constitutional structure and regulated a wide array of activities such as taxation, commercial transactions, enforcement of community mores, marital law, and many others. Given the wide and frequent use of this legislative power, it is somewhat ironic that the classical talmudic literature, the source of Jewish law, says relatively little about it. Simply put, it is not certain that talmudic halakhah, which speaks of the legislative power of kings and rabbinical courts, recognizes the authority of the “community” to adopt laws and to enforce them upon recalcitrant citizens. Halakhic scholars have therefore struggled to find a theory which would justify the takanot hakahal according to the basic premises of Jewish law. Some argue that these enactments are but a logical extension of the ancient right of the “townspeople” (beney ha`ir) to make rules concerning the control of wages and prices, the requirement to build a synagogue, the collection and appropriation of tzedakah monies and other matters.[4] Others assert that the community is the legal equivalent of the beit din, especially the ancient Sanhedrin, the rabbinical court which under talmudic theory does enjoy the power to enforce its decrees upon the people.[5] Still others locate the source of the community’s legislative power in valid and long-standing local custom (minhag hamedinah), in itself a valid “source” of Jewish law.[6] Finally, there are those who hold that the community by its very nature is endowed with the power to make its own determinations in matters of legitimate public concern, even if those determinations run afoul of some technical requirements of the halakhah.[7]

Whichever of these theories may be the “correct” one, they are united in their assumption that the kahal exists as a legitimate corporate entity and that it possesses the powers necessary to the successful function of such an entity. To put it differently: once the Jews have defined themselves as a community rather than merely a collection of individuals, they have created thereby a mechanism by which this political body can chart its common course and enforce the decisions that it has the right to make. And this serves, ultimately, as the basic argument in support of our 1986 decision on the responsibility of member congregations to support the UAHC. The Union, that is to say, is our community. In establishing the Union and in ratifying its By-Laws, our Reform congregations have indicated that they define themselves in large part as affiliates of an international community of progressive Jewish congregations.[8] Under Jewish law this community, like all others, is endowed with the power of “taxation,” which means the power to set membership dues in accordance with the procedures described in its By-Laws and regulations. As members of such a community, congregations are obligated to pay those dues.

The Reform rabbi is therefore equally obligated to call upon congregations to support the Union by meeting their agreed-upon financial obligations toward it. This is true of all Reform rabbis, but perhaps especially the case for those who serve UAHC member congregations. These obligations, remember, are not only accepted freely by the congregation when it joined the Union; they carry the full sanction of centuries of Jewish tradition. As the teacher of that tradition, the congregation’s rabbi must assume a “leadership role” in advocating the fulfillment of its legitimate responsibilities toward the larger community of which it is a part.

2. The Reform Rabbi and “Kevod Harav”. The principle of kevod harav, the duty to render honor and respect to one’s teacher, serves as an additional argument in favor of the Reform rabbi’s moral obligation to support the UAHC. We discuss this principle in a teshuvah concerning the question of “private ordination,” of whether a rabbi ordained at HUC-JIR may ordain as a rabbi any person who has not been approved for ordination by the College-Institute.[9] We decide that question in the negative: a rabbinic graduate of HUC-JIR may not participate in such an ordination, in large part because the concept of kevod harav means that in an important sense we rabbis remain subject to the authority of the rabbis who ordain us. “To act otherwise is detrimental to the kavod (honor) of one’s teacher and, by extension, of the rabbinate as an institution.” This limitation, to be sure, does not mean that we are prohibited from disagreeing with our teachers on matters of Torah and theology; both Jewish tradition at its best[10] and our own Reform Jewish tradition proclaim our individual intellectual freedom in these matters. On the other hand,

…we feel just as surely a sense of obligation to render honor to our rabbis, those who instilled Torah in us and prepared us for the momentous task of transmitting it to our people. We, too, recognize the principle of kevod harav. And this principle, if it means anything at all…implies that we have a duty to promote the welfare of the College-Institute in any way that we can. It demands at the very least that we avoid taking actions which would undermine the centrality and integrity of the College-Institute as the agency by which North American Reform Jewry has chosen to train its rabbinic leadership… Our semikhah, whatever powers it confers, cannot entitle us to undermine the school which granted it to us.

The duty of rabbis “to promote the welfare of the College-Institute in any way that we can” would certainly imply that we are required to speak out in support of the MUM program. Our seminary draws a significant percentage of its budget from the proceeds of that program, which are divided equally between the UAHC and HUC-JIR. When a member synagogue fails to meet its financial obligations to the Union, the College-Institute suffers thereby. Ordinees of HUC-JIR should not remain silent; they should indeed assume “a leadership role” on behalf of the Union and, through that means, on behalf of the school which taught them Torah.

Conclusion

. We therefore respond to this she’elah in the affirmative. Reform rabbis are ethically obligated to support the Maintenance of Union Membership program. This is because our movement defines and understands itself as an international community made up of member congregations, and like all Jewish communities ours has the right to set membership fees and dues through its authorized procedures. Rabbis ordained at HUC-JIR must also support the MUM program because, as rabbis, they owe a special debt of obligation to the school which ordained them, a school which receives a great deal of its funding from congregations who pay their share of Union dues.

We repeat that this teshuvah in no way deals with the proper level of MUM dues, a question which cannot be answered by way of text and tradition but which must be settled by the congregations themselves, speaking through their duly-elected representatives to the Union. With regard to the more fundamental issue, however, our understanding of our tradition and of our nature as a community leaves us in no doubt whatsoever: Reform congregations are obligated to support the Union which they have created, and Reform rabbis, as the teachers of Torah they claim to be, must assume a leadership role in assuring that their synagogues fulfill that obligation.

NOTES

 

  • Contemporary American Reform Responsa

(CARR), no. 139.

  • Exodus 30:11ff.
  • The principle indicated here is dina demalkhuta dina, “the law of the state is the law.” For a detailed discussion, see our responsum 5757.1.
  • R. Chananiah bar R. Yehudah Gaon, in the collection of geonic responsa known as Sha`arey Tzedek 4:4(16). The rabbinic sources concerning the beney ha`ir include M. Megilah 3:1, Tosefta Bava Metzi`a 11:23, BT Bava Batra 8b, and BT Megilah 27a. R. Chananiah also applies to the community the rule hefker beit din hefker, derived from Ezra 10:8, according to which the court is empowered to confiscate the property of all citizens who disobey its decrees; see BT Gitin 36b. A similar line is adopted by Rabbenu Gershom ben Yehudah, the “Light of the Exile,” Responsa, no. 67, and by R. Yitzchak b. Sheshet (14th cent.), Resp. Rivash, no. 399.
  • This is notably the case with R. Shelomo b. Adret (Rashba; d. 1310) of Barcelona, the source of much of the halakhic theory concerning takanot hakahal. See his Responsa 5:126: “the relationship of the majority of the city to the minority is that of the Great Sanhedrin (beit din hagadol) to the Jewish people in ancient times: their decrees are binding, and the one who transgresses them is to be punished.” See as well Resp. Rashba 1:729, 3:411 and 417 and others. This theory, however, is not universally accepted. R. Ya`akov Tam, in particular, rejects the analogy of the community council to the rabbinical court; accordingly, he rules that the majority of the community may not enforce its will upon those who dissent. See Sefer HaMordekhai, Bava Batra 1:480.
  • Resp. R. Meir of Rothenburg

, no. 106 (Prague ed.) and 371 (Lvov ed.). This may be the strongest theoretical argument, in that it accommodates R. Tam’s objections to the beit din analogy (see note 5) by injecting a note of pragmatism. See Resp. Chatam Sofer, Choshen Mishpat, no. 116: the minhag is to follow the majority decision in all community matters, for “were we to wait until unanimity is achieved, no public business would ever be concluded.”

  • R. Chaim Ya’ir Bachrach (Germany, 17th cent.), Resp. Chavat Ya’ir, no. 57.
  • The process of ratification is important here, since it means that this community was created in the form of an explicit agreement among its members, who imposed its authority upon themselves. The outlines of such a democratic theory already exist in Jewish law, which speaks of the “ratification” of the Torah by the Israelite people (Ex. 24:7) and of a subsequent “re-acceptance” during the days of Esther and Mordekhai (see BT Shabbat 88a on Ex. 19:17 and Esther 9:27; the rabbis were concerned over the seemingly coercive elements of the Mount Sinai narrative). See as well Maimonides’ Introduction to the Mishneh Torah, which explains the legal authority of the Babylonian Talmud in terms of its “acceptance” by the Jewish people (hiskimu…kol yisrael). This is not to say that this theory fully corresponds to the notion of representative democracy as it operates in modern political culture. We mean to suggest rather that some of the opposition to the authority of the community, particularly that of Rabbenu Tam (see note 5), can be allayed when we remember that our own communities are based explicitly upon “popular acceptance” of the governing rules, which are not imposed by a body which claims the powers of a beit din to enforce its decrees against the will of the people.
  • Teshuvot for the Nineties

, no. 5753.4, particularly at pp. 136-138. See the accompanying notes to that teshuvah for source material.

  • For example, R. Ya`akov Emden (18th cent.), Resp. She’elat Ya`avetz 1:5: “on matters of halakhic judgment, it is not sufficient to say that the student is entitled to argue in favor of his own opinion against that of his teacher; rather, he is obligated to do so. He should not remain silent due to the honor of his teacher (kevod rabo), for the honor of the Torah takes precedence (kevod torah adif).”

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5757.1

CCAR RESPONSA

Loyalty to One’s Company Versus Love for Israel

5751.1

She’elah
A congregant works for a company which is developing some technology systems with military applications for Arab countries which do not have peace treaties with Israel. He is torn between loyalty to the company for which he works and his devotion to the Jewish people and the State of Israel. He would like to inform discreetly someone in the Israeli consulate, but he is also concerned about his job security: he has a wife and three children, and he would clearly lose his job were it discovered that he leaked information.

Teshuvah
Our sho’el seeks to draw a proper balance between conflicting loyalties and loves. In his concern for the State of Israel, he expresses a feeling that is central to our religious consciousness as Jews and as Reform Jews. The history of modern Zionism in general and of our own movement’s relation to it has been a complex one, but there is no question of our love for the State of Israel and of our full acceptance of its essential and pivotal role in the life of the Jewish people and in the minds and hearts of its members.[1]The issue is whether this love for Israel enjoys a kind of absolute status in the life of the Jew, taking precedence over other legitimate commitments.

 

Our she’elah suggests at least two of these “other commitments.”

1. Citizenship and The Law of the Land. The sho’el wishes to “inform discreetly someone in the Israeli consulate” about his employer’s business dealings. Since it is not illegal under normal circumstances to do business with countries with which one’s government maintains diplomatic relations, we presume that the company is acting within the limits of American law. On the other hand, it is possible that the sho’el himself would violate the law of the United States or of his local jurisdiction by revealing company secrets. This possibility raises the element of our duty to obey the laws of the land in which we live. Does this duty supersede or give way to our obligation to care for Israel?

Both the Bible (“seek the peace of the city to which I have exiled you”)[2] and the rabbis (“pray for the welfare of the government, since but for the fear of it people would swallow each other alive”)[3] discuss the need to show respect to the state within which we live. Yet these statements do not take us very far. The “city” and the “government” of which they speak refer to the Babylonian and Roman conquerors of the Jewish state, and the attitude they recommend is one of prudence, a recognition of the realities of power, rather than that sense of positive loyalty which the citizen is supposed to feel toward his or her political community. The more appropriate citation for our context is the classic talmudic principle dina demalkhuta dina, “the law of the state is the law,” binding upon us as well as upon its non-Jewish inhabitants.[4] Whatever its specific historical origin,[5] this principle asserts the legal validity, under Jewish law, of a wide range of acts taken by a Gentile government in the field of civil or monetary law (dinim or diney mamonot). At first glance, this notion is somewhat surprising. Jews, after all, have their own legal system, whose integrity and autonomy they are forbidden to undermine by submitting their disputes to Gentile jurisdiction.[6] For this reason, although the Talmud does not offer a legal theory to justify the principle, we find several explanations of it among the medieval authorities. The most important of these are the following:

1. Rashi writes that since Gentiles are obligated, under the doctrine of the “Noachide laws,” to establish courts and to administer justice, our own courts can recognize as valid the legal acts undertaken by non-Jewish authorities in fulfillment of this duty.[7]

2. Several Ashkenazic scholars advance the theory that the land is the personal property of the king or prince, who is therefore empowered to make whatever laws he wishes.[8]

3. Sages of the “Nachmanidean school” in northern Spain, 13th-14th centuries, draw a comparison between Gentile kings and the king of Israel. Just as the latter are bestowed by God with certain powers necessary for the proper functioning of the state, so too do the former exercise all appropriate royal authority.[9]

4. R. Shmuel ben Meir (Rashbam), a grandson of Rashi, holds that the law of the state is valid in our eyes because “all those who dwell in the kingdom willingly accept the king’s laws and statutes.”[10]

This latter explanation accords with the political theory, current in early medieval Europe, that the power of the ruler emanates from the people and is effectively controlled and limited by their agreement to recognize him as ruler.[11] It also corresponds quite closely to our own understanding of our contemporary political situation. Those of us who live in democratic states in the Diaspora[12] regard ourselves as citizens, as fully participating members of the political community. We, together with our fellow citizens, constitute the state; the government is our agent, put in place to give effect to our political will. The law of the state is therefore a law of our own making, because in contracting together with our fellow citizens we imply our acceptance of that law and its binding authority. This does not mean, of course, that we are in agreement with every decision made by our governments or that we believe that every law enacted is a good one. It means rather that the malkhut itself is legitimate and its law is law, not because these have been imposed upon us against our will but because we ourselves, the citizens of the state, are the malkhut and the legislators who make our political decisions through a process upon which we have agreed beforehand. Our consent to the outcome of this process–that is, to the laws duly enacted by the state–is thereby implied in advance.

Our sho’el is a citizen of the United States. As such, according to our understanding of the principle dina demalkhuta dina, the laws concerning espionage are laws of his own making; he is bound to obey them because in theory he has enacted them through his participation in the political life of his country. In other words, if by “discreetly informing” the Israeli consulate he would violate American law, he would also transgress against Jewish legal teaching concerning the law of the state.

 

2. Limitations On the Validity of the Law of the State. The principle dina demalkhuta dina does not confer absolute recognition upon any and every “law of the state.” In order to count as legitimate under the halakhah, the “law” must be a legitimate one: that is, it must apply equally to all, drawing no unfair distinctions among the residents of that political community,[13] and it must be accepted as flowing from the established, previously recognized powers of the regime.[14] In addition, Jewish law traditionally limits the application of this principle to monetary law and does not accept as valid state legislation touching upon the realm of ritual practice (issur veheter).[15]

None of these limitations are applicable to our case. Laws which prohibit the unauthorized transfer of confidential information to representatives of foreign governments are not inherently unfair or discriminatory. They are not unjustly and specifically directed against Jews or the state of Israel. They are based upon the desire of a state to protect itself, its people and its institutions from external threat. Since this desire is surely a legitimate one, expressing the “established, previously recognized powers” reserved to all governments, then so long as it has been enacted through the accepted and recognized legislative processes the citizens of the state can be said to acquiesce in the adoption of such laws. To be sure, one might well criticize the wisdom of any particular law or governmental act. It might arguably be better to exempt the government of Israel or of other friendly states from anti-espionage statutes. Yet this is beside the point. The fact that a state might have enacted a better law does not necessarily mean that the law it has enacted is “invalid” from the viewpoint of the Jewish legal tradition. Laws banning espionage, should they be involved in this case, are indeed a legitimate exercise of a state’s authority, and the halakhah would therefore regard them as binding upon Jews as they are upon all other citizens.[16]

3. Concern for Israel vs. Concern for One’s Family. Let us suppose, however, that the sho’el would violate no laws by informing the Israeli consulate of his company’s business activities. At this point, he must draw a balance between his concern for the State of Israel and his duty to provide for his family, since to reveal this information would likely cost him his job.

Clearly, the balance here depends upon a precise measurement of the facts (how threatening are these military applications to Israel’s security? to what degree is one’s job in jeopardy?), a measurement that we are in no position to make. The sho’el can, however, find some guidance in the traditional order of priorities for the distribution of tzedakah, which teach that when one must choose between otherwise equally-deserving recipients, one’s own relatives take precedence over all others.[17] We might observe, too, that while the sho’el‘s failure to transmit this information may or may not pose a significant degree of danger to Israel, the loss of his job and the fear of poverty constitute real and concrete risks to himself and his family. In this instance, we are on solid ground when we grant priority to real danger (vada’i sakanah) over potential or uncertain danger (safek sakanah),[18] thus permitting concern for the family’s welfare to come first.

Conclusion. One’s love for the State of Israel does not necessarily outweigh other vital religious moral responsibilities. As is always the case when our responsibilities conflict, we must arrive at a balance among the priorities they set for us. In this case, the sho’el is under no religious or moral obligation to risk his job and the welfare of his family by informing Israeli government officials of his company’s business activities with Arab states. And, should such informing violate a statute of American law, his action would transgress the principle of dina demalkhuta dina. He is an American citizen, and Jewish tradition permits and expects him to act as such.

Yet nothing we write here should be construed to mean that we hold love for Israel to be a trivial or an insignificant thing. Far from it: the attachment we feel to the State of Israel and its people is one of the most powerful motivating factors in our Jewish religious lives. The Platform on Reform Religious Zionism, adopted by the CCAR on June 24, 1997, is but the latest in a series of official expressions of Reform Judaism’s devotion to Israel,[19] to the security and well-being of its citizens, and to the hope that the building of a just and righteous society in the land of Israel will allow the Jewish state to continue to serves “as the spiritual and cultural focal point of world Jewry.” Because “we stand firm in our love of Zion,” we should seek ways to express that love that are consonant with our other deeply-held religious and moral commitments. The Platform suggests some of these ways:[20]

1. Lending Israel our continued political support and financial assistance.

2. Promoting the knowledge of Hebrew in all our communal institutions.

3. Implementing educational programs and religious practices that reflect and reinforce the bond between Reform Judaism and Zionism.

4. Studying in Israel and visiting there when we can

5. Facilitating aliyah (immigration to Israel).

This is a list, clearly not an exhaustive one, of means by which we can contribute to Israel’s strength and insure that the bonds linking us to the Jewish state will never be broken. We encourage the sho’el, as we would encourage all Jews, to turn his energies and his Jewish devotion to the fulfillment of these goals.

NOTES

1. This is not the proper venue to rehearse the this history, summarized quite well by David Polish, Renew Our Days: The Zionist Issue in Reform Judaism (Jerusalem: World Zionist Organization, 1976). Suffice it here to note the language of the great doctrinal statements of our movement. While the Pittsburgh Platform of 1885 renounced any vestige of Jewish nationhood or desire to restore the Jewish state, the Columbus Platform of 1937 affirmed “the obligation of all Jewry to aid in [Palestine’s] upbuilding as a Jewish homeland…”. The “Centenary Perspective” of 1976 noted that “we are bound to…the newly reborn State of Israel by innumerable religious and ethnic ties…we have both a stake and a responsibility in building the State of Israel, assuring its security and defining its Jewish character.” Finally, the document known as “Reform Judaism and Zionism: A Centenary Platform,” which will be voted upon by the CCAR but which at this writing exists in draft form, declares that “the restoration of Am Yisrael to its ancestral homeland after nearly two thousand years of statelessness and powerlessness represents an historic triumph of the Jewish people, providing a physical refuge, the possibility of religious and cultural renewal on its own soil, and the realization of God’s promise to Abram (Gen. 12:7)…From that distant moment until today, the intense love between Am Yisrael and Eretz Yisrael has never subsided.”

2. Jeremiah29:7.

3. M. Avot 3:2.

4. This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.

5. Shmuel flourished during the rule of the Sassanian King Shapur I (242 C.E.), who relaxed his government’s strictures against the Jews and granted legal and cultural autonomy to the Jewish community. Shmuel was on friendly terms with the king, and his position that dina demalkhuta dina may have been part of his attempt to persuade the Jews to come to terms with the regime. See Jacob Neusner, A History of the Jews in Babylonia (Leiden: Brill, 1965-1967) 2:16, 27, 30; S. Shilo, Dina demalkhuta dina (Jerusalem: Defus Akademi Yerushalayim, 1975), 4-5.

6. BT Gitin 88b, from a midrash upon Ex. 21:1; Yad, Sanhedrin 26:7; SA CM 26:1. On the other hand, Jewish law does not ignore the realities of our political powerlessness. A litigant is permitted to resort to the Gentile authorities when, due to the defendant’s refusal to obey the orders of the beit din, justice cannot be achieved justice in the Jewish court (Yad loc. cit.; SA CM 26:2).

7. Rashi, BT Gitin 9b, s.v. kesherin and chutz migitey nashim. The latter statement makes clear as well that the principle dina demalkhuta dina applies only to dinim and not to the realm of Jewish ritual law; see below, in our discussion of the limitations upon the scope of the principle.

8. R. Eliezer of Metz, cited in Or Zaru`a, Bava Batra, ch. 447; Resp. Maharam Mirotenburg, Prague ed., no. 1001; Lemberg ed., no. 313; Hil. Harosh, Nedarim 3:11; R. Nissim Gerondi to Nedarim 28a, s.v. bemokhes ha`omed me`alav, quoting “Tosafot.

9. See the novellae (chidushim) of Ramban, Rashba, Ritva, and Ran (R. Nissim Gerondi) to Bava Batra 55a; Resp. Rashba 2:134 and 3:109; and Derashot Haran, no. 11. See BT Sanhedrin 20b, where Shmuel declares that “everything mentioned in the description of the king’s powers (parashat melekh; I Samuel 8:11-17) is permitted to him”, and Yad, Melakhim 4:1.

10. Rashbam, Bava Batra 54b, s.v. veha’amar shmuel dina demalkhuta dina. Compare to Rambam (Yad, Gezeilah 5:18), who also attributes the validity of the laws to the fact that the people have willingly accepted (hiskimu alav) the king’s jurisdiction. His language differs from that of Rashbam in that he refers to the people’s agreement that “he will be their master (adoneyhem) and they will be his servants (avadav).”

11. See Walter Ullmann, A History of Political Thought: The Middle Ages (Baltimore: Penguin, 1965), 12-13, who contrasts this conception of law, which he terms the “ascending theory,” with the competing “descending theory” which posits that all political power originates “at the top” and is bestowed by its possessors upon their chosen representatives. The second of the rabbinic explanations, which describes the king as the “owner” of the kingdom, corresponds quite closely to the “descending theory.”

12. Although the principle dina demalkhuta dina originally addressed the reality of a Gentile government in the golah, there is some controversy in the literature as to whether that conception can serve as the theoretical basis for the powers of a Jewish government in the land of Israel. For examples of recent rabbinical scholars who answer “yes” to this question, see the journal Hatorah vehamedinah 1 (1949) 20-26, 27-41,42-45; 5-6 (1953-1954) 306-330; and 9-10 (1958-1959), 36-44. In general, see Shilo, 99-108.

13. See Yad, Gezeilah ve’aveidah 5:14: “a law enacted by the king that applies to all and not for one particular person is not to be regarded as theft (i.e., illegal confiscation of property).” See also Or Zaru`a, Bava Batra, ch. 447, in the name of Rabbenu Tam.

14. See Hagahat Mordekhai, Bava Batra, ch. 659 (fol. 57, col. b, bottom), in the name of R. Tam and R. Yitzchak of Dampierre: “anything instituted by the rulers that is in accordance with the accepted law (al pi din kedumim) is valid law (din gamur hu).” The point is not that the act of legislation itself must be old or that the legislator is forbidden to enact new statutes. Rather, the enactment must be generally accepted as a legitimate exercise of powers that already enjoy “constitutional” recognition (as measured by din kedumim) in that political community. Compare to Yad, Gezeilah ve’aveidah 5:14. And see, in general, Shilo, 191ff.

15. See Shilo, 115ff. For this reason, traditional halakhic authorities have not applied the principle dina demalkhuta dina to the area of marital law (one of issur veheter) in order to accept the validity of civil divorce. The Reform movement in the United States has indeed accepted civil divorce, but precisely on the grounds that divorce has always been regarded in the halakhah as a matter of monetary, rather than ritual law. This argument can be contested, but it does show that Reform thinking on the subject of divorce has followed the lines of the traditional halakhic structure. On the history of Reform and the divorce question see ARR, no. 162; Moses Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times (Cincinnati: Bloch, 1884); and R. Solomon Freehof, Reform Jewish Practice I, 99-110.

16. This responsum does not discuss the issue of civil disobedience, the right (as justified by appeal to morality, natural law, “higher” law, etc.) to refuse to obey a particular law enacted by the state. The reason is that in this particular case, there appear to be no grounds for “conscientious objection” to a law that would forbid the revelation of business secrets: such a law would not be unfair or discriminatory; it represents an exercise of legitimate (i.e., recognized and accepted) state power; and as it does not violate a fundamental tenet of Jewish ritual law it does not violate a Jew’s freedom of religion. For this reason, the sho’el as a citizen can be said to have acquiesced in its enactment, thus stipulating his obligation to obey it.

Having said this, we would point out that the subject of civil disobedience in general is worthy of careful consideration. In this context we would note simply that, based on the theory that a Jew is a citizen like all others, there can be no distinctions between Jews and Gentiles in this regard. That is, if civil disobedience is ever justified, it is justified for all citizens. The principle dina demalkhuta dina cannot be interpreted so as to discriminate against the Jewish citizens of the state, denying to them any right, such as that of civil disobedience, that is enjoyed by all other citizens.

17. BT Bava Metzi`a 71a; Yad, Matanot Aniyim 7:13; SA YD 251:3.

18. See R. Yosef Teomim, Peri Megadim, Mishbetzot Hazahav (OC 328, near the beginning): when confronted with two patients, one of whom is in mortal danger (yesh bo sakanah) while the other is not, and we have but enough medicine to treat one of them, we treat first the patient who is in greater danger.

19. “The Platform on Reform Religious Zionism,” along with its Hebrew text (Hayahadut hareformit vehatziyonut) is published in CCAR Yearbook 106 (1997), 49-57. The Preamble to the Platform (Hebrew, p. 49; English, p. 54) notes that this is hardly the first official statement by the Conference on the subject of Zionism and Israel. The rigidly anti-Zionist stance of the Pittsburgh Platform of 1885 was decisively rejected in the Columbus Platform of 1937 and the Centenary Perspective of 1976.

20. “Platform,” p. 51 (Hebrew) and p. 56 (English).

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5758.4

CCAR RESPONSA 

Reproving a Congregation for Violations of Tax Law 

5758.4 

 

She’elah 

I have discovered several instances of irregularities with federal tax laws at the congregation I serve as rabbi. One of these involves the granting of a parsonage allowance to a staff member not entitled to one under the rules set by the U.S. Internal Revenue Service (IRS). The other two involve underpayment of Social Security and Medicare taxes by the same staff member and by a prior staff member. I have called both irregularities to the attention of congregational leadership, who have done nothing about it. 

Do I have an obligation under Jewish law to report these violations to the IRS? 

Teshuvah 

We begin by noting the obvious: your legal responsibility in this matter is determined by the tax laws of the United States and of your local jurisdiction. Jewish law also recognizes this fact, under the principle dina demalkhuta dina (the law of the state is valid and binding upon us).[1] It is therefore vital that you consult with an attorney as to your legal obligation. 

Yet Jewish law speaks as well to the substance of your question. Leviticus 19:17 reads: “Reprove your kinsman” (hokheach tokhiach et amitekha), which our Sages teach us establishes a positive duty to point out a wrongdoer’s sin.[2] As Maimonides puts it: “When one sees that his fellow has committed a sin or has chosen the wrong path, it is a mitzvah to restore that person to righteousness by informing him that by his evil deeds he sins against himself.” This reproof should take place privately and should be spoken gently, so that the sinner is made to realize that this criticism is to his benefit. It should be repeated, if necessary, until the person receiving the reproof responds in anger, making clear that he does not accept it. “Whosoever has it in his power to protest against sin and does not do so is implicated in that very sin, inasmuch as he could have issued a rebuke.”[3] 

This last point bears considerable emphasis. The positive duty of reproof (tokhechah) involves us deeply in the actions of the wrongdoer. Failure to discharge this duty means that we bear partial responsibility for his or her sin; the Biblical text requires us to rebuke the sinner “so that you not incur guilt on his account (v’lo tisa alav chet; Lev. 19:17).”[4] If we are not part of the solution, in other words, we are part of the problem; when we do not meet our ethical responsibilities in this matter, we commit the sin of “hating our kinsman in our heart.”[5] For this reason, we must repeat the rebuke should our message not be received the first time.[6] 

On the other hand, as Maimonides and his sources point out, there is a limit to the number of times we are obligated to perform the mitzvah of tokhechah. This limit is determined by the measure of effectiveness: should it become obvious that the recipient obstinately refuses to accept one’s rebuke, one is at that point discharged from any further duty.[7] As we read in the Talmud, “just as it is a mitzvah to speak out when our words will be heeded, so it is a mitzvah to refrain from speaking out when our words will not be heeded.[8] We must also take care that our rebuke not cause shame and embarrassment to the recipient.[9] The difficulty involved in carrying out this mitzvah in a way that preserves the dignity of all led R. Elazar b. Azaryah to doubt whether anyone alive in his day could perform it.[10] 

Let us now apply the lessons of our tradition to your case. Every one of us has a duty to offer reproof for wrongdoing that we perceive, and this is especially true for the rabbi of a congregation, the teacher of Judaism and its ethical doctrines to his or her people.[11] By raising the tax issues with your congregational leadership, you have begun to meet your responsibility of tokhechah, but you may not yet have discharged it in full. We are required to offer rebuke again and again, at some personal risk, until such time as we are convinced that it will not be accepted. You should therefore pursue this manner until you are certain that your efforts have come to naught. At that point, when it becomes clear that further reproof will result only in anger directed against you, then you have fulfilled your obligation under Jewish law. Inasmuch as reproof is a private matter that must be carried out so as to spare its recipient embarrassment and shame, you are under no Judaic requirement to report your suspicions to the IRS. We repeat, however, the caveat stated at the outset of this t’shuvah: you should consult an attorney as to your obligations under civil law (dina d’malkhuta). 

In any event, it is imperative for our communities and for our moral standing within them that we rabbis seek as best we can to fulfill the mitzvah of tokhechah when the situation requires it. As R. Yehudah Hanasi teaches us: “which is the path of righteousness that one should choose for oneself? It is to love reproof. For so long as there is reproof in the world, there is peace of mind in the world, there is goodness and blessing in the world, and evil departs from the world, as we read: ‘to those who are reproved shall come delight’ (Proverbs 28:23).”[12] 

 

NOTES 

  1. For a discussion of the subject dina d’malkhuta dina, see our responsum 5757.1.

 2. B. Arakhin 16b. 

 3. Yad, De`ot 6:7, based upon B. Arakhin 16b. “Until the person receiving the reproof responds in anger…” is a paraphrase; Rambam literally writes “until he strikes him (the one who issues the reproof).” This follows the view of Rav in the Talmud loc. cit., against those of Shmuel (“until he curses him”) and R. Yochanan (“until he rebukes him [k’dei nezifah]”). Rambam’s commentators are puzzled as to why he does not follow R. Yochanan, whose views are usually considered authoritative against those of Rav. Indeed, Sefer Mitzvot Gadol (positive commandment no. 11) explicitly rejects this decision and rules according to R. Yochanan. We would suggest that all three of these suggested “end points” of reproof are synonymous with the expression here. 

  1. According to the interpretation of Nachmanides ad loc., who citesOnkelos in support. See also ibn Ezra ad loc. In the words of the author of Sefer Hachinukh (mitzvah 239): “one who has the power to reprove a sinner and does not do so is caught up in that very sin; this is obvious from the teachings of our Sages and from the sense of the verse (i.e., Lev. 19:17).” Maimonides, for his part, adopts the alternative interpretation of the verse (see below in text), namely, that one should make the reproof in such a way that it not shame its recipient. He learns the present rule (failure to rebuke implicates one in the wrongdoer’s action) from a baraita in B. Shabbat 54b; see Kesef Mishneh to Yad, De`ot 6:7. 
  2. After the first clause of Lev. 19:17; Nachmanides ad loc. draws the connection between the two issues. See also SeferHachinukh, mitzvah 239: one who does not rebuke his neighbor when necessary may well bear a grudge against that neighbor, “hating him in his heart” and seeking his harm at the earliest opportunity. 
  3. And see B. BavaMetzi`a 31a, where Rava suggests we are obliged to rebuke “even one hundred times” until the rebuke is accepted. This number is not taken literally by the halakhic authorities (poskim), but its rhetorical force is clear: we should carry out this mitzvah until it has achieved its objective. 
  4. See notes 3 and 6.
  5. B.Y’vamot 65b (and see Proverbs 9:8). See Isserles, SA OC 608:2: the reason for keeping silent in such a situation is that it is better that the sin remain an inadvertent one. Should we issue a rebuke that will be rejected, the sin at that point becomes one of intent and premeditation, and the sinner accordingly guilty of a more serious transgression. 
  6. B.Arakhin 16b, based upon a midrash of the concluding words of Lev. 19:17, lo tisa alav chet, “do not bear a sin on his account”; Yad, De`ot 6:8. 
  7. B.Arakhin 16b. 
  8. See B. BavaMetzi`a 31a. Even the student (talmid) is obligated to reprove his teacher (rav); how much more does that duty rest upon the rabbi. 
  9. B.Tamid 28a. 

 

NYP no. 5757.7

CCAR RESPONSA

The Synagogue Thrift Shop and Shabbat

5757.7

She’elah

My congregation is considering the opening of a thrift/consignment shop as a fund-raising vehicle. The retail experts tell us that such a store would not be economically viable unless it were open on Saturday. The shop would be off the premises of the synagogue and would be operated on Shabbat by a non-Jew.

Are there circumstances under which this arrangement might be acceptable according to our Reform Jewish understanding of Shabbat? (Rabbi Deborah R. Prinz, Poway, CA)

Teshuvah

A. Shabbat Observance and Reform Judaism

. In a recent teshuvah,1 a copy of which we enclose, this Committee considered the question of Shabbat observance in general and commercial activity on Shabbat in particular. We concluded that although Reform Judaism has dispensed with many of the details of traditional Shabbat observance, the very idea of Shabbat observance, of shemirat shabbat, retains its validity for us. The nature of Shabbat as a period of holiness requires not only that we mark it with special rituals and ceremonies but also that we refrain from performing on it activities which contradict the character of the day as we perceive it to be.

What are those prohibited activities? How should we go about identifying them? Our responsum suggests that the teachings and standards transmitted through Jewish tradition ought to enjoy a considerable presumptive weight in our thinking. We are free, of course, to define our own notion of Shabbat and to decide upon new and creative means of sanctifying it. We do not hesitate to set aside those aspects of traditional practice which strike us as irrelevant or outdated. Our primary goal, however, is to participate in the collective religious experience of our people. The Shabbat that we wish to observe and to teach to our children must correspond to our sense of contemporary values; yet it must also be an unmistakably Jewish Sabbath, one whose contours and rhythms are shaped and set by the heritage of Israel. 2

How do we arrive at a proper balance between these two desired elements in our religious life? Our Reform responsa literature has suggested a rule of thumb which we might term the “preferential option” for tradition. Tradition, that is, serves as our necessary Judaic starting point. When considering questions of observance, we begin with the standards and customs that we have inherited from our people’s past. Those practices enjoy a considerable degree of presumptive weight in our thinking. We seek to maintain them in the absence of compelling reason to alter or abandon them.3

In the case of Shabbat, this means that we must take seriously the traditional proscription of commercial activity (mekach umimkar; sale and gift) on that day. This prohibition, although not numbered among the thirty-nine categories of forbidden “work” (melakhah), is woven so deeply into the fabric of Shabbat observance that it is scarcely possible to imagine the Jewish Sabbath without it.4 Even in its liberal and tolerant approach to religious practice, Reform Judaism has steadfastly maintained that unnecessary economic activity should not take place on Shabbat.5 And if we show understanding toward those individuals and families who feel they must work on the Sabbath, we believe it to be entirely improper for a synagogue, the very institution entrusted with the teaching and transmission of Torah and Jewish heritage, to engage in commercial activity on that day.

There are, to be sure, instances when Jewish law demands that we set aside the Shabbat prohibitions, but this is not one of them. The question before us does not involve mortal danger, when the need to save life is said to “override” the Sabbath (pikuach nefesh docheh et hashabbat).6 Nor are we discussing an action such as berit milah which the Torah requires us to perform on a particular date that happens to coincide with Shabbat.7 Jewish tradition would not regard the congregation’s desire to raise funds either as a life-and-death situation or as a project which must perforce be carried out on Shabbat in violation of the proscriptions against commercial activity on that day.

One might, of course, make the argument that the Shabbat prohibitions ought to be set aside for the sake of the “greater good” of a congregation’s financial solvency. After all, leading rabbinical authorities have been known to transgress laws concerning Shabbat observance, such as the prohibition against conducting weddings on the Sabbath, on behalf of a high and noble purpose that could be achieved in no other fashion.8 This argument, however, presumes that synagogue fundraising is somehow a “higher purpose” than Shabbat observance. We have long rejected such a presumption, on the grounds that it contradicts our affirmation of Shabbat as a “higher purpose” in its own right, a sacred span of time that makes its own legitimate demands upon us.9 We do not perform weddings or funerals on Shabbat, even though these ceremonies are mitzvot, because “we encourage our members to make Shabbat a special’ day upon which we do not carry out duties and acts performed on other days.”10 We have urged that congregations refrain from scheduling tzedakah and social action programs on Shabbat when these involve traditionally-prohibited labor, for “we do not perform a true mitzvah if it is done by transgressing another command.”11 And of particular relevance here, we have strongly discouraged the scheduling of synagogue business meetings and fundraising projects on that day.12

We have, in other words, found Shabbat to be at least as great a good and as noble a purpose than the other goals whose pursuit would conflict with its observance. This is especially true in light of our movement’s increasing emphasis during recent years to strengthen Shabbat observance among our people.13 For a synagogue to operate a commercial enterprise and to collect money on Shabbat would violate the holiness of that day as we Reform Jews understand that concept.

B. Gentile Employee on Shabbat.

Does the suggestion that the synagogue hire a Gentile to operate the store on Shabbat alter the above conclusion? At first glance, the answer appears to be “no,” since the tradition forbids us to ask a Gentile to perform labor on Shabbat that we ourselves may not perform.14 The reason for this, however, is that an employee is considered the agent of his or her employer, and any action taken by an agent is deemed to be the action of the one who appoints that agent.15 Based upon this theory, it might be possible to construct the business relationship between the synagogue and its non-Jewish worker so that the latter would not in point of law be the “employee” or “agent” of the congregation. The congregation, for example, could draw up legal documents defining its connection with the worker as that of landlord to tenant or lessor to lessee. In return for the payment of a fixed fee to the synagogue, the worker would be allowed to keep all the proceeds from the store’s operation on Saturday. Since he or she would be “working for his/her own benefit,”16 the Gentile would not be classified as the employee or agent of the congregation. Jews have for centuries resorted to such legal devices in order to engage in a variety of business relationships with Gentiles and yet observe the letter of Shabbat law.17 Perhaps, it might be argued, an arrangement of this sort would enable the synagogue to operate its thrift shop on Shabbat.

Still, the tenancy relationship would not truly solve the congregation’s problem. In addition to the practical difficulties (can the synagogue set the “fixed fee” high enough so that it is feasible to operate the store on Shabbat yet low enough to attract the services of a competent worker?), there is the matter of appearances, of mar’it ayin. Even though the formal halakhah (Torah law; dina de’oraita) permits a Jew to lease a business to a Gentile for operation on Shabbat, the rabbis forbade this arrangement under the following circumstances: 1) when it is widely known that the business is Jewishly-owned, and 2) where it is not the common local practice to lease such a business. The rabbis feared that people seeing the business in operation on Shabbat

would suspect that the Gentile was in fact the employee of the Jewish owner, working for that owner and not for himself.18 Under traditional halakhah, that concern is certainly present in our case. So long as it is generally known that the thrift shop belongs to the synagogue, most people would presume that the worker, though in point of law a lessee, is in fact an employee or agent of the congregation which owns and operates the store.

We share that concern. We recognize, to be sure, that the principle of mar’it ayin is in one important respect a difficult one. Rabbinic tradition utilizes it as a means of prohibiting activities which according to the law of the Torah are perfectly permissible, on the grounds that these acts give the “wrong impression.” To do so suggests that, at a certain level, appearances are more important than substance, and that is a sentiment we most definitely do not accept. Yet in another respect, mar’it ayin retains its ethical power for us, as the age-old expression of the maxim that one’s actions must not only be proper but appear to be proper as well. Our religious institutions are charged with the sacred task of teaching Torah, and we accomplish this task in the example we set no less–and perhaps more–than in the words we preach. If we truly believe, as we say we do, that the observance of Shabbat is a central religious goal for Reform Jews, then surely our behavior must exemplify that belief. Whatever its legal arrangement with the Gentile worker, we seriously doubt that the congregation can operate its thrift shop on Shabbat without giving the impression that it is conducting commercial activity on that day.19 Considering the importance we attach to the observance of Shabbat as a day of rest, of worship, and of study, this is not the example that our synagogues should set for our people.

We therefore counsel your synagogue against operating its thrift shop on Shabbat.

NOTES

1Responsa Committee no. 5756.4, “Presenting a Check for Tzedakah at Shabbat Services.” That teshuvah draws heavily upon the conceptual and descriptive language of the CCAR’s Gates of Shabbat: A Guide for Observing Shabbat (New York, 1991), 49-59.

2For another expression of this idea, see Gates of Shabbat, 57: “In creating a contemporary approach to Shabbat, Reform Jews do not function in a vacuum. Although we may depart from ancient practices, we live with a sense of responsibility to the continuum of Jewish experience.”

3For references, see Responsa Committee no. 5756.4 at note 20.

4See ibid., at notes 4-7. Biblical tradition takes it for granted that commerce is incompatible with the observance of Shabbat; see Isaiah 58:13-14 and Amos 8:5. Halakhic authorities dispute whether mekach umimkar is prohibited on biblical or rabbinic grounds.

5 Gates of Shabbat, 57.

6BT Yoma 85b; Yad, Yesodey Hatorah 5:1ff; SA YD 157.

7BT Shabbat 132a on Lev. 12:3; Yad, Milah 1:9; SA YD 266:2. Since the circumcision must take place on the eighth day of a boy’s life (unless postponed for reasons of his health), aspects of that surgery which otherwise violate the prohibitions against melakhah indeed, be performed on Shabbat should that be the child’s eight day.

8The most famous case is undoubtedly that of R. Moshe Isserles, who performed a wedding on Friday night after protracted negotiations over the financial arrangements of the marriage made it impossible to conduct the ceremony before sundown. His concern was kevod haberiyot, or simple human decency: he wished to spare the families the gossip and embarrassment that would have resulted from delaying the wedding until Sunday. See Resp. HaRema, no. 125.

9See Teshuvot for the Nineties, no. 5755.12, 165-168: “The fact that Shabbat conflicts’ with another mitzvah or worthy cause does not mean that it is Shabbat which must give way. Indeed, the reverse is often the case.”

10American Reform Responsa, no. 136. See also Gates of Shabbat, 58.

11 TFN, no. 5753.22, 169-170. See also Contemporary American Reform Responsa, no. 176 and Responsa Committee, no. 5756.4.

12Questions and Reform Jewish Answers, no. 60; CARR, no. 177; Reform Responsa, no. 8.

13In addition to the various Reform responsa responsa cited here, we might mention the tone and tenor of such recent publications of the CCAR as Gates of Shabbat; Gates of the Seasons (1983), 15-33; and Shabbat Manual (1972). Each of these works underscores the theme developed in this responsum: namely, that Shabbat is not simply a “good day” available for the scheduling of “good deeds” but rather a mitzvah, a sacred observance in its own right, which places upon us legitimate demands that may not be in keeping with other activities, however socially useful they might be.

14The nature of this prohibition is a matter of dispute in the rabbinic sources. Some hold it to be Toraitic, based on the wording of Ex. 12:16; see Mekhilta ad loc. (ed. Horovitz-Rabin, 30-31). The talmudic tradition, on the other hand, sees the prohibition as rabbinic in origin (amirah lenokhri shevut; BT Shabbat 150a, Eruvin 67b and elsewhere), adopted in order to protect Shabbat: should we grow accustomed to hiring Gentiles to labor on Shabbat, we might be led to take Shabbat less seriously and come to perform these labors ourselves (Yad, Shabbat 6:1). See Nachmanides to Ex. 12:16, who argues that the midrash in the Mekhilta is but an asmakhta, a symbolic link of the halakhah to the Torah verse but not its true source.

15 Shelucho shel adam kemoto; BT Kiddushin 43a and elsewhere.

16See SA and Isserles, OC 243:1 and the introduction of the Mishnah Berurah to the chapter, on the subject of arisut, or tenancy. A tenant (lessee) “works for himself” (ada`ata denafshey avid) and not for the lessor.

17One example is shutafut, or partnership: a Jew and a Gentile who jointly own a business may arrange to operate it on Shabbat by means of a carefully-delineated division of its profits. See SA OC 245.

18 BT Avodah Zarah 21b; Yad, Shabbat 6:15 and Magid Mishneh ad loc; SA OC 243:1 and Mishnah Berurah, introduction to chapter.

19See Numbers 32:22 and M. Shekalim 3:2: we must be blameless in the sight of people just as we must be blameless in the sight of Heaven.

20 On the other hand, this concern might not apply under another set of circumstances. For example, the congregation might determine to operate the store jointly with a non-Jewish organization, making it clear in a public way (as well as through formal legal agreement) that the proceeds of the store’s Saturday operations go to that organization and not to the synagogue. We were not, however asked concerning such an arrangement; the she’elah before us involves a congregation which wishes to keep the proceeds of its Shabbat operation.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5757.4

CCAR RESPONSA

Proper Disposal of a Worn Sefer Torah

5757.4

She’elah
Our congregation owns a sefer torah which a local sofer has declared pasul and irreparable. It will never be fit for public reading, and my congregation is considering burying the scroll in our cemetery. There is, meanwhile, a woman in our community who conducts Jewish classes in her home and from time to time directs a small prayer group on Shabbat, also in her home. She has asked that we give her the sefer torah so that she might keep it in the room she uses for her study and prayer-group activities to help establish an appropriate religious atmosphere. She promises that she will keep the scroll in a place of respect and that she will not use it for public reading, although she may open the scroll for educational purposes as there are some columns that are in good condition.

Rabbi Solomon B. Freehof (Contemporary Reform Responsa, no. 24) has ruled that a Torah scroll unfit for public reading (sefer torah pasul) may be kept in the Ark, but his ruling does not address the uses suggested here. Is it permissible to use a worn sefer torah for the purposes described? (Rabbi Ira L. Korinow, Haverhill, Massachusetts)

Teshuvah
This question actually combines two separate concepts which, for the sake of clarity, ought to be kept distinct. The first of these is the sefer torah pasul, a Torah scroll unfit for public reading due to a scribal error in its text. The second is the sefer torah shebalah, “a Torah scroll that has become worn” and is unfit for public reading or any other normal use due to its physical deterioration.

A Torah scroll is pasul when it is found to violate one of the twenty rules which Maimonides lists in his Mishneh Torah. Such a scroll, he writes, “enjoys none of the sanctity of a sefer torah. It is like a chumash which is used in teaching children, and it is not read in public.”1

Should an error be discovered during the reading of the Torah, the reading from that scroll is halted and is continued from a second scroll.2 The customary berakhot are not recited over a sefer torah pasul. The scroll should be repaired by an expert sofer if this is possible.3

A Torah scroll “which has become worn” is considered to have deteriorated beyond the point of repair. It is placed in an earthen vessel and buried in a cemetery, preferably next to the grave of a Torah scholar.4 We find in the literature two primary explanations for this requirement. The one has to do with the proper honor that we must show to a Torah scroll: we store it in an earthen vessel (cf. Jeremiah 32:14) and bury it because we seek to preserve its writing for as long as possible.5 The other6 stems from the prohibition against destroying sacred texts, particularly those containing the name of God. We learn this prohibition from a midrash on Deuteronomy 12:4: that is, while we are bidden to destroy the places and implements of idolatry in the land of Canaan/Israel, “you shall not do that to Adonai, your God.”7 Thus, when we find the need to dispose of worn-out texts, we must not burn them, for this is how we should destroy objects of idolatry, but bury them.

The sho’el’s description of the Torah scroll in question (“irreparable”; “there are some columns that are in good condition”) suggests that it is a sefer torah shebalah rather than simply “unfit”. That is, the scroll is pasul not because of an error or errors in its text but because it has deteriorated to the point that it cannot be restored to a condition of kashrut. Were this a case of a pasul but reparable Torah scroll, the congregation would have to refuse the teacher’s request. To be sure, there is no objection to using a pasul scroll for educational purposes on a temporary basis, until it is repaired. As Rambam says in the passage cited above, such a scroll has lost its inherent sanctity and is now akin to a chumash “which is used in teaching children.” On the other hand, we would not want to maintain the scroll in its unfit condition.8 The essential function of the sefer torah is precisely that we use it for public reading rather than as a study text, let alone as an object for educational display.9 It would be most inappropriate to leave the scroll in a condition in which it could not fulfill its primary purpose.

Yet this is a question concerning a worn Torah scroll, which will never again be read in public. Is burial the only proper thing to do with this scroll? Or may we follow the teacher’s suggestion to use it as a tool for Jewish education?

A good argument could be made that her suggestion has merit. That argument would note that neither of the two explanations for the custom to bury a worn sefer torah applies in this case. If we bury sacred texts, first of all, out of a desire to spare them from burning, we might respond that no Jew would ever suggest that a deteriorated Torah scroll be consigned to flames. The very thought of such a thing conjures horrific images from our recent history, and there is not the slightest possibility that we would do to our sifrei torah, no matter how worn, what the Nazis did to them. There is no longer any reason to insist upon burial of the scrolls as a precautionary measure against something that, in any event, will not happen. And if the reason we bury our scrolls in order to preserve their sacred texts for as long as possible, it could be said that we better serve the cause of preservation when we “seal the Torah in our students” (cf. Isaiah 8:16) rather than in the ground. That is, in our religious tradition, which holds the study of Torah to be the supreme mitzvah,10 it makes more sense to use a worn Torah scroll as a means of Jewish education than to bury it away forever.

We think, however, that a better argument can be made against the teacher’s request. For the one element that is missing from this suggestion is that of reverence, the proper attitude we assume toward objects which possess sanctity (kedushah). The very definition of reverence, of a sense that we stand in the presence of that which is kadosh, is that we cannot use that thing for our own purposes, no matter how exalted we think those purposes to be. The rules by which we use a holy object are by this definition not rules of our own device but rather those which we have inherited from tradition, from the religious experience of our community, a people in covenant with its God. And in that experience, the proper expression of reverence toward a sacred text which can no longer serve its intended purpose is to bury it. To the objection “what good does it do there in the ground, when we could make better use of it in other ways?”, the answer is clear: we are not to make use of it in other ways, for the essence of reverence is that we do not manipulate holy objects for our own ends. Thus, the texts of a worn sefer torah may not be cut out and used in tefillin and mezuzot, nor may the parchment of a worn sefer torah be used for the writing of tefillin and mezuzot. Even though one could say that to use the scroll for these purposes is to perform mitzvot and that the doing of mitzvot is a more useful way of disposing of a worn Torah scroll than is burial, the tradition declares that “we do not allow the Torah scroll to be brought down to a lower level of sanctity” (i.e., from that of a sefer torah to that of tefillin and mezuzot).11 The very sanctity of a worn sefer torah, in other words, precludes its use as a tool to achieve other ends, even worthy ones.

We see no good reason for us to abandon this traditional understanding of reverence in favor of one that is more “pragmatic” or “useful.” On the contrary: an attitude of reverence and a sense of the holy are precisely the right values for us to inculcate in ourselves and in our children. If one were to ask “should not this demand for reverence give way before the mitzvah of Torah study and Jewish education?”, we would respond quite simply that one of the goals of talmud torah is to teach us reverence, to lead us to just such an appreciation of the kedushah that we believe inheres in the Torah scroll. Jewish education is indeed important: for this reason, therefore, we should make sure that in educating our people, we teach them the correct ways of Jewish religious behavior.

We do applaud the motivations of this teacher, and we agree that it would serve the purposes of Jewish education for her students to see an open Torah scroll. Yet she and they need not acquire a worn-out scroll in order to do this. It would be much better, we think, for her to bring her students to a synagogue, where the rabbi or a suitable designate may open for them a sefer torah that is not in fragile condition.12 We would urge her to do this especially on a Shabbat or a festival or some other time when the Torah is actually read. In this way, they fulfill not only the mitzvah of Torah study but also join together with the congregation in fulfillment of an additional mitzvah: that of keri’at hatorah, the public reading of the Torah.

We therefore urge the congregation to adhere to its original plan and bury the worn sefer torah in its cemetery.

NOTES

1 Yad, Sefer Torah 10:1. A chumash in traditional terminology is not a printed book as we conceive of it today but any one of the five books of Moses written individually on a separate scroll. It was used for study but not for the fulfillment of the requirement of keri’at hatorah, the public Torah reading.

2This is a complex issue in the halakhah. Essentially, the issue is whether that portion of the reading that was done prior to the discovery of the error counts toward the fulfillment of the requirement of keri’at hatorah. Many authorities hold that since a sefer torah pasul should not be read in public, the verses already read in it should be disregarded, and the entire reading should be repeated from a fit scroll (see, for example, Resp. Harosh 3:5; Resp. Rashba 1:230). On the other hand, at least one authority rules that it is permissible to read in public from a sefer torah pasul and even to recite the benedictions over it, since the blessings refer not to the unfit scroll but to the words that are read, which are fit; Resp. Rambam, ed. Freimann, no. 43 (and how this opinion squares with the position stated in Yad, Sefer Torah 10:1 is an issue treated at length in Beit Yosef, Orach Chayim 43). The procedures suggested by Karo and Isserles in Shulchan Arukh Orach Chayim 143:4 can be seen as efforts to compromise between these two views. See Mishnah Berurah 143, no. 13.

3 The standard for this: a sefer torah which contains three textual errors on every sheet may be repaired; if it contains four errors on every sheet it must be stored away. This has to do specifically with words written chaser, into which the missing letters must be inserted. To do this more than three times per page, the sages say, would make the scroll appear “speckled” and hence is a disrespectful thing. If the majority of the scroll is properly written, then so long as one sheet from the “spoiled” section (the section that has not been checked for errors) is found to be correctly written, the scroll may be repaired. See BT Menachot 29b; Yad, Sefer Torah 7:12; Shulchan Arukh Yore De`ah 279:4.

4 BT Megillah 26b; Yad, Sefer Torah 10:3; Shulchan Arukh Orach Chayim 154:5 and Yore De`ah 282:10.

5 See Beit Yosef, Yore De`ah 282.

6 Cited by Magen Avraham, Orach Chayim 154, no. 9.

7 Sifre and Rashi to Deut. 12:4; BT Makkot 22a; Yad, Yesodei Hatorah 6:1.

8 See BT Ketubot 19b (Yad, Sefer Torah 7:12; Shulchan Arukh Yoreh De’ah 279:1): an unfit sefer torah must either be repaired or stored away in thirty days.

9 See R. Asher b. Yechiel at the beginning of his Hilkhot Sefer Torah, which follows immediately upon the conclusion of tractate Menachot in the printed editions of BT. It is generally considered a positive mitzvah for a person to write his own sefer torah (BT Sanhedrin 21b, from a midrash on Deut. 31:19; Yad, Sefer Torah 7:1; Shulchan Arukh Yoreh De`ah 270:1). R. Asher, however, writes that “nowadays, Torah scrolls are written and placed in synagogues to be read in public. Therefore, it is a positive commandment for each person to write chumashim and books of Mishnah, Talmud, and commentaries so that he and his sons may study them. For the mitzvah to write a sefer torah was so that one might study from it.” Later authorities question whether R. Asher means to exempt the individual from the requirement to write a Torah scroll (or have one written for him by a scribe) or whether his words come to expand the original requirement to include other books; see Beit Yosef and Bach to Tur, Yoreh De`ah 270. Yet none of them contest his point that we no longer use Torah scrolls primarily for purposes of study and that “nowadays,” their function is to be read in public during synagogue services.

10 Talmud torah keneged kulam (M. Peah 1:1; Yad, Talmud Torah 3:3).

11 BT Menachot 32a; Yad, Sefer Torah 5:1; Shulchan Arukh Yoreh De`ah 290.

12This sort of educational display is quite customary in our congregations and schools. It can be seen as a logical extension of the minhag of displaying the scroll to congregation at the time of its public reading and declaring: vezot hatorah, “this is the Torah,” etc.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5757.3

CCAR RESPONSA

The “Falas Mura”

5757.3

She’elah

The Commission on Social Action of the Union of American Hebrew Congregations has asked for our opinion concerning the community of Ethiopian Jews known as the “Falas Mura”. Between three and four thousand members of this community are currently living in Addis Ababa in a camp administered under the auspices of the North American Conference on Ethiopian Jewry (NACOEJ). These people seek permission to emigrate as Jews to Israel, but their aliyah has been delayed due to concerns over their Jewish status. Should the Commission resolve to call upon the government of Israel to authorize the aliyah of the “Falas Mura” and to bring them to Israel as soon as possible?

Teshuvah

This is an urgent question. The members of this community live under difficult conditions. Many have undergone severe hardships to reach Addis Ababa. Many of their close relatives died of disease or exposure on the way; others were killed. To rescue them is quite simply a matter of pikuach nefesh. The Social Action Commission wishes to move quickly; hence, we cannot offer a proper teshuvah and a full study of the problem at this time.[1] We emphasize as well that whatever answers we can offer are based upon the evidence that has been provided us through NACOEJ and the UAHC’s Religious Action Center.[2] If there exists other evidence which would support a contradictory conclusion, the position taken in this responsum might change accordingly. The Jewish Status of the “Falas Mura”. The issue to be decided here is whether that group of Ethiopians identified as “Falas Mura” enjoys the right to aliyah under Israel’s Law of Return. That legislation, which entitles all Jews to emigrate to Israel, defines a Jew as one who is born of a Jewish mother or who has converted to Judaism and who is not an adherent of any religion other than Judaism.[3] It is conceded by all that the “Falas Mura” are ethnically members of Beta Yisrael, the Ethiopian community whose status as Jews has been recognized by Israeli government and rabbinate. The problem is that nearly a century ago, the “Falas Mura” converted to Christianity during a period of severe political and economic hardship. For this reason, officials of the Jewish Agency denied many “Falas Mura” permission to emigrate to Israel during the mission to rescue the Ethiopian Jewish community (“Operation Solomon”) in 1990.[4] The “Falas Mura” now declare their determination to renounce Christianity and to return to Judaism. Are the “Falas Mura” a Jewish community, one which would qualify for a right to dwell in the state of Israel under the Law of Return? To answer this question, we shall have to consider two major problems with respect to their status: that of intermarriage and that of apostasy. 1. The Problem of Intermarriage. If the “Falas Mura” converted to Christianity, we might have to presume a great deal of intermarriage between them and the surrounding Ethiopian Christians. These intermarriages would have given rise to grave doubts as to the Jewishness, under halakhic standards, of many of their offspring and descendants. According to all accounts, however, the “Falas Mura” continued to marry among themselves, a fact due largely to their hostile relations with the Ethiopian Christians as well as with the rest of Beta Yisrael.[5] The absence of intermarriage means that the community enjoys a presumption of ethnic Jewishness (chezkat yahadut), and Israeli authorities would therefore have the burden of disproving this presumption in each and every individual case in order to refuse immigration. 2. The Problem of Apostasy. Do the “Falas Mura” remain Christian? The evidence at our disposal, drawn from reports from the camp in Addis Ababa as well as from the absorption center in Neve Carmel which houses a number of “Falas Mura” immigrants, declares overwhelmingly that the answer to this question is “no.” There is no indication that they maintain even the slightest active connection to Christianity,[6] and they have participated actively in an intensive program of Jewish study (hashavah leyahadut, “return to Judaism”) overseen by Rabbi Menachem Waldman, the representative of the Israeli Chief Rabbinate on this issue. Every report that we have seen indicates that the members of the community practice an intensive and rigorous Jewish religious lifestyle. Their synagogues are crowded, especially on Shabbat and festivals; they study Judaism in their schools; they observe Jewish ritual in their homes. In the words of Rabbi Waldman, “there is no doubt that this is a community of Jews faithful to the God of Israel, observant of the mitzvot, particularly Shabbat, kashrut, and public religious life (such as daily, Shabbat, and festival prayer). They have a powerful desire to study and to live as religious Jews, according to halakhah.”[7] This conclusion is shared by a number of first-hand observers of the community,[8] and we have seen no evidence that would argue against it. The Return of the Apostate to Judaism. In the eyes of our tradition, an apostate Jew remains a member of the community of Israel[9] and is encouraged to perform the act of teshuvah, to return to Jewish life.[10] The tradition looks with great sympathy upon those who were coerced into apostasy[11] and upon the descendants of apostates, who clearly did not have the opportunity to learn and to accept Judaism. The current generation of the “Falas Mura” clearly fall into this latter category.[12] There is some question as to whether this return should involve a ritual act, such as immersion in a mikveh, as a symbolic demonstration that the individual has indeed forsaken his or her non-Jewish religion. While we find no mention of such a requirement in the talmudic sources, a number of rishonim (rabbinic authorities prior to the writing of the Shulchan Arukh) do state that this ritual is customary.[13] Some suggest other ritual requirements as a means of marking the transition from apostasy to a renewed Judaism.[14] On the other hand, some scholars insist that since the apostate remains a Jew, a ritual that resembles conversion is out of place.[15] This fact is worthy of special emphasis in the present situation, since it is generally recognized that the “Falas Mura” are indeed members of the people of Israel. To require that they undergo a ritual of conversion or quasi-conversion would call this very status into question and lead to resentment among the “Falas Mura,” who would justifiably regard the demand to “convert” as a smear and an insult to their very identity as Jews. Opposition to Aliyah. Why has the Israeli government thus far not permitted the “Falas Mura” as a community to immigrate? The official explanation is set forth in a report of the government’s Ministerial Committee on the Issue of the “Falas Mura,” dated January 4, 1993. The report defines the members of this community as Jews who have willingly (meratzon) adopted another faith, a label which disqualifies an individual from the automatic right of aliyah under the Law of Return. The Ministerial Committee adds that it is not the business of the government of Israel to participate in any program of conversion or “return to Judaism” which would remedy this situation. On the other hand, “the government will examine the possibility that suitable agencies will, with the agreement of the government of Ethiopia, work with those of this community who are candidates for aliyah to bring them closer to Jewish tradition and to teach them about Israeli life, in order to minimize the difficulties of their absorption in Israel.”[16] The operation supervised by Rabbi Waldman, the representative of the Chief Rabbinate, is just such a “suitable agency,” and its programs, as noted above, have succeeded in bringing the members of this community back to a powerful identification with and attachment to Judaism and Jewish life. The rabbinic leaders of this operation have called upon the Israeli government and the Jewish Agency to expedite the immigration of the “Falas Mura” to Israel under the terms of the Law of Return.[17] Surely the concerns expressed by the Ministerial Committee have been met, so that there would no longer exist any reason to deny their aliyah. Recently, however, Israel’s Chief Sefardic Rabbi Eliahu Bakshi- Doron issued an opinion which dealt a serious blow to the efforts on behalf of the “Falas Mura.” He declared that the Jewish ancestry of those in the Addis Ababa camp is “unclear” and that “for a goodly number of (those already in Israel), their return to Judaism is insincere.”[18] These are serious allegations which, should they prove to be well-founded, would argue against allowing the residents of the Addis Ababa camp to enter Israel. Yet Rabbi Bakshi-Doron offers no evidence in support of his claims. His opinion contains nothing but bland assertions, which we are called upon to accept at face value. Against these stand the ample first- hand testimony, cited in this teshuvah, as to the Jewishness and Judaism of the “Falas Mura,” those in Addis as well as those in Israel. The halakhah posits that “the judge must decide the case on the evidence which lies before him,”[19] and based upon all the information at our disposal, we see no reason to prefer Rabbi Bakshi-Doron’s statement over the findings of Rabbi Waldman, the Chief Rabbinate’s own representative on this question. We repeat: in the absence of any substantial proof to the contrary, we must presume that the “Falas Mura” are an ethnically Jewish community and that they have returned to Jewish life. Conclusions. We join together with all those who call upon the government of Israel to rescue and to relieve the suffering of the “Falas Mura” living in Addis Ababa. Specifically: 1. We are persuaded that the “Falas Mura” are Jews and that they should be allowed to emigrate to Israel as soon as possible. 2. The “Falas Mura” should be required to complete satisfactorily a process of “return to Judaism” such as the one that has been conducted under the supervision of Rabbi Waldman. This process may be accompanied by rituals, such as immersion, which have long been associated with the return of the apostate Jew. It must not, however, be conceived of or presented as a form of conversion to Judaism, for the members of this community are already Jews. NOTES 1. Moshe Zemer, a member of this Committee, is in contact with Rabbi Uri Regev of the Israel Religious Action Center and Rabbi Menachem Waldman, director of the Israel Chief Rabbinate’s committee on the absorption of Ethiopian immigrants. His findings will be the basis for the published version of this teshuvah. 2. This includes a collection of reports edited by Rabbi Menachem Waldman (see note 1) entitled Beney ha-“falas mura” be’adis ababa uveyisra’el: shivah leyahadut, shemirat mitzvot ukelitah ruchanit datit, Cheshvan 5757 (1996), as well as his Beney Ha- “falas mura” veshivatam leyahadut le’or hahalakhah, Cheshvan 5757 (1996). 3. The CCAR’s doctrine of “patrilineal descent” is irrelevant to our discussion. Although under that principle we in North America would accept the child of one Jewish parent, either father or mother, as potentially Jewish, the resolution which enacted it explicitly limits its scope to Reform Jewish communities in North America. In offering counsel to Jewish communities elsewhere, therefore, it is inappropriate for us to violate these limits, which we ourselves have established, and insist that they adopt our own particular understanding of Jewish identity. 4. The criteria by which the Jewish Agency determined that some Ethiopian Jews would be denied permission for aliyah have not yet been fully explained; see the report by Avshalom Elitzur in Waldman, Beney ha-“falas mura” be’adis, 35-40. 5. Waldman, Beney ha-“falas mura” veshivatam, 2-3. 6. “From discussions with the local Amharric Christians it became clear that [the “Falas Mura”] did not attend church services”; Dan Siman, an anthropologist at Harvard University who has studied the Ethiopian Jewish community extensively, in Waldman, Beney ha-“falas mura” be’adis, 55. 7. Waldman, in Beney ha-“falas mura” be’adis, 64. In Beney ha- “falas mura” veshivatam, Rabbi Waldman numbers six specific indicators of the community’s return to Judaism: 1. a school for instruction in Judaism and Hebrew as well as general studies, attended by 1000 students; 2. a synagogue where daily services are attended by hundreds of worshippers; 3. widespread observance of daily, Shabbat, and festival mitzvot; 4. translations of the siddur, the machzor, and other Jewish works into Amharric for the community’s use; 5. the repeated declaration by the community’s members of their acceptance of Judaism; 6. the careful supervision of this process by representatives of the Israeli chief rabbinate. 8. See the reports of Elitzur and Siman in Waldman, Beney ha- “falas mura” be’adis. 9. The classic source for this doctrine is the statement “a Jew, even though he sins, remains a Jew,” an interpretation of a midrash on Joshua 7:11 found in BT Sanhedrin 44a. It was Rashi who lent this interpretation its halakhic force; see Teshuvot Rashi, ed. Elfenbein, 171, 173, 175. Although some earlier authorities entertained the notion that an apostate is in fact no longer a Jew (see Otzar hageonim, Yevamot 22a and Kidushin 18a), the predominant strain of the halakhah holds otherwise. See R. Yosef Karo, Bedek habayit YD 268, end: “apostates are obligated from Sinai to observe the mitzvot just as are the rest of us.” 10. See Resp. Rashbash (Shelomo b. Shimeon Duran, 15th-cent. North Africa), no. 89: those anusim who were forced into accepting Christianity should be “drawn to us with bands of love.” 11. Resp. Rivash (R. Yitzchak b. Sheshet, 14th-cent. Spain/N. Africa), no. 4 and no. 11; Yad, Yesodey Hatorah 5:4; SA YD 119:9. 12. Maimonides suggested that the Karaites of his generation, as descendants of the original Karaites, were like the child taken captive by Gentiles (tinok shenishbah bein hagoyim) and thus not to be held responsible for their apostasy (Commentary to Mishnah, Chulin 1:1). See also Beit Yosef YD 159. This description is applied to the “Falas Mura” by R. Chaim David Halevy, chief rabbi of Tel Aviv-Yafo; see his letter reprinted in Waldman, Beney ha-“falas mura” veshivatam, 53. 13. Rav Paltoi Gaon, Otzar hageonim, Yevamot 47b; Chidushey Haritva, Yevamot 47b; Mordekhai, Ketubot, ch. 306; Nimukey Yosef to Alfasi, Yevamot, fol. 16b; Yam shel Shelomo, Yevamot 4:52; Isserles, YD 268:12. 14. See Waldman, Beney ha-“falas mura” veshivatam, 27ff, and Stanton Zamek, Even Though He Sins He Remains a Jew: The Repentance of the Returning Apostate (Cincinnati: Rabbinical Thesis, HUC-JIR, 1996). 15. Rav Hai Gaon and Rav Amram Gaon, Otzar hageonim, Yevamot 47b; Resp. Rashba 5:306; Resp. Rashbash, no. 89. The objections to a conversion-like ritual are especially strong with respect to demands that the returning apostate undergo hatafat dam berit; there is simply no evidence in the sources to support such a requirement. See, in general, see R. Moshe Zemer, Halakhah Shefuyah (Tel Aviv: Dvir, 1993), 128-134. 16. The report is printed in Waldman, Beney ha-“falas mura” veshivatam, 69-72. See particularly the opinion of Rabbi Shabbetai Sabato, an adviser to the Ministerial Committee, reprinted ibid., 67-68. 17. Letter signed by Rabbis Menachem Waldman, Ratzon Arusi, and David Shloush, dated 1 Kislev 5754 (Nov. 15, 1993), reprinted in Waldman, Beney ha-“falas mura” veshivatam, 78-79. 18. Letter of Rabbi Eliahu Bakshi-Doron, dated 14 Cheshvan 5757 (Oct. 27, 1996), on file with the Responsa Committee. 19. ein ladayan ela mah she`einav ro’ot; BT Bava Batra 130b.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5757.2

CCAR RESPONSA

In Vitro Fertilization and the Status of the Embryo

5757.2

She’elah

In the procedure known as in vitro fertilization (IVF; the “test tube baby”), human ova are removed from the womb and placed in a petri dish, where they are fertilized with sperm. The usual procedure is to choose the “best” of these embryos or zygotes for implantation into the womb (of either the ovum donor herself or of a “host mother”) and to discard the rest.

What is the status of the zygote with respect to “humanhood”? May those zygotes not chosen for implantation be used for medical research? May they be offered to another couple, and if so, who are ultimately the parents of the child? Perhaps we should be guided by the ruling of Rav Hisda in BT Yevamot 69b that prior to forty days gestation the human fetus is but “mere water” (maya be`alma) and does not warrant independent status under halakhah. (Rabbi Thomas Louchheim, Tucson, AZ)

Teshuvah

The development of the procedure of in vitro fertilization, which creates and maintains a human embryo outside the womb, raises many difficult religious and moral questions, some of the most important of which are noted in our she’elah. In addressing them, we as rabbis must first of all be guided by the Jewish legal tradition, as we understand it from our own liberal Jewish perspective, although we recognize that our tradition may offer but limited practical guidance on issues of this sort.1 And as liberal rabbis, we shall consider as well the findings of contemporary biological science, medicine and genetics.

1. In Vitro Fertilization as a Medical Procedure.

We begin by considering briefly a basic issue implied by our she’elah: the permissibility or advisability of in vitro fertilization as a medical procedure.2 To answer this question, we must address to IVF the same inquiry we apply to all medical issues: does the medical benefit which might accrue from the procedure justify its risks? Jewish tradition teaches us to regard our lives and our bodies as gifts from God and therefore prohibits us from placing them in needless danger3 or subjecting them to unnecessary physical damage.4 These concerns are set aside, of course, in the case of legitimate medical need,5 since medicine is a mitzvah.6 By “medicine” we mean the wide array of chemical, surgical, and other procedures aimed at the correction or control of disease. And by “disease” we mean a condition in which some aspect of our biological or psychological systems does not function properly.7 Accordingly, we may define human infertility as a disease and the procedures designed to correct it as medicine. We might add that since Jewish tradition and Reform Jewish teaching see the birth of children as a blessing to their parents and to the entire community of Israel,8 the development of technologies which enable the infertile to bring children into the world should be similarly be welcomed as a blessing to humankind. Since current information indicates that IVF is not associated with unacceptable risks to either the health of the woman or of the child, we see no reason no oppose the procedure or to issue any warnings concerning it. On the other hand, those considering IVF must take into account the normal medical risks of any surgical procedure, as well as the psychological stress involved in fertility treatments, before they decide to use it.

2. The Status of the Embryo at Less than Forty Days.

Our sho’el is correct that the sources regard a human embryo of less than forty days gestation as maya be`alma, “mere water”, and therefore not a “fetus” (ubar) at all.9 On this basis, a number of authorities are willing to rule more leniently on the question of abortion: that is to say, if we presume a prima facie halakhic prohibition against abortion,10 that prohibition either does not apply or is much less stringent with regard to a fetus at less than forty days following conception.11 By extension, we would expect an even more permissive attitude concerning an embryo which, because it exists outside the womb, is not defined as a “fetus.” This is indeed the case. One leading contemporary halakhist rules that it is forbidden to set aside the laws of Shabbat in order to save the life of an embryo in a petri dish, even though we are permitted to violate Shabbat on behalf of a fetus.12 In a ruling which touches directly upon our own she’elah, R. Chaim David Halevy permits a hospital or clinic to discard “excess” embryos created for purposes of IVF, explaining that the prohibition against abortion relates only to the fetus and not to an embryo maintained outside the womb.13 A similar decision is rendered by R. Mordekhai Eliyahu.14

3. In Vitro Fertilization as Healing (Refu’ah).

We agree with these decisions, but we think it vital to expand their rationale. The absence of an explicit prohibition against destroying an embryo does not in and of itself justify the act of destruction, any more than the definition of an early-stage fetus as “mere water” automatically permits an abortion. Like the fetus, the zygote is not a legal person.15 Yet it most definitely is a person “in becoming,” possessing all the necessary genetic information; it lacks only gestation, development in utero, to realize its biological potential. Rather, just as we require some warrant, however “slim,”16 to abort the fetus, so too we should seek some positive reason to argue on behalf of the destruction of this microcosm of the human being.

We find this reason in the nature of IVF as a form of refu’ah, of healing, a medical response to the disease of infertility. As we have already written, actions which might under other circumstances be forbidden may be undertaken if they constitute a proper element of a therapeutic regimen: in other words, if they are defined as medicine and contribute to the treatment of disease. Thus, although we would certainly oppose the wanton destruction of human embryos, we can permit the discarding of excess embryos as a necessary part of the IVF procedure. We say “necessary” because 1) multiple embryos must be created in order for the procedure to be feasible and effective; and 2) to require that each and every zygote be preserved would likely place a cumbersome burden upon hospitals and laboratories. Under such conditions, many of these institutions would likely refuse to perform IVF, thus rendering the procedure intolerably expensive or simply unavailable to many of those who seek it. Given that our tradition does not expressly forbid the destruction of the embryo, the positive value of IVF as a medical therapy clearly justifies the necessary discarding of excess zygotes.

Moreover, since IVF is a means by which Jews can fulfill the mitzvah of childbearing, for whose sake a number of important ritual prohibitions can be waived,17 we think that our tradition would permit us to discard the excess embryos as a necessary means of enabling Jewish people to build families and bring children into the world.

4. Medical Experimentation.

If in the name of “medicine” it is permitted to discard the excess embryos created during IVF, then it is certainly permitted to utilize these embryos for research intended to increase our life-saving scientific knowledge. We would add the proviso that whether it be discarded or used for research, the embryo be treated and handled with an attitude of respect and reverence that is befitting of that which, after all, a potential person, a nefesh in becoming.18

5. Parenthood.

Who are “ultimately” the parents of a child created by IVF? This question has been considered by several Orthodox halakhists, whose arguments–and our difficulties with them–we summarize here.

R. Eliezer Yehudah Waldenberg rules that a child conceived outside the womb has no parents: it bears no halakhic relationship either to its biological parents or to the “host mother,” the woman who carries the child to term.19 He cites as support a statement by Maimonides in the Moreh Nevuchim that “human organs cannot exist separately from the body and still be regarded as fully human.”20 Thus, an ovum detached from its “natural” place ceases to be a human ovum. He quotes as well the talmudic dictum that “a fetus in the womb of a Canaanite slave is like the fetus of a beast.”21 He interprets this to mean that “no yichus (familial relationship) is possible outside the womb of a Jewish woman”; hence, the embryo created in a petri dish enjoys no yichus or familial relationship at all. Both of these proofs, however, are clearly flawed. In mentioning Maimonides’ philosophical treatise, Waldenberg relies upon the latter’s scientific judgment, the truth of which depends upon its accuracy as a description of physical reality. That judgment, while it may have corresponded to the best available scientific knowledge in the twelfth century, is now outdated; today, it is possible to establish that an organ is “human” by means of chemical and genetic testing. If we wish to base our religious decisions upon scientific information, it is incumbent upon us to use the best science available, as did Maimonides himself, rather than enslave our scientific judgments to standards which science itself has long since abandoned. Waldenberg’s talmudic evidence, meanwhile, does not prove that yichus is created exclusively within a Jewish womb.22 The text speaks instead to the “matrilineal” principle of Jewish descent: traditional halakhah does not recognize the legal bond between a father and his child by a non-Jewish woman. This says nothing at all about the case in which the donors of the biological materials for IVF are both Jews.

 

Other authorities hold that a child created by IVF is the offspring of the woman who bears it, whether or not she conceived it.23 They base this conclusion upon an analogy to the talmudic passage concerning a woman who converts to Judaism during pregnancy.24 Since “one who converts is like a newborn child,”25 these authors reason that both the woman and her fetus become “newborn”: i.e., all prior families ties (yuchasin) are cancelled, including the relationship between this mother and her fetus. Yet once the child is born the halakhah, for purposes of the law of incest, recognizes it as this woman’s child. The authors infer therefore that it is birth, rather than conception, which in all cases establishes the mother-child bond, so that the child conceived by IVF is the legal offspring of the “host mother.” While this conclusion is open to halakhic criticism (since the sources in question can be interpreted in several different ways),26 we would question the aptness of the analogy itself. Jewish law defines the Jew-by-choice as a “newborn child” for religious rather than for biological reasons. The ger or giyoret who enters our community and embarks upon a life of Torah and mitzvot most definitely becomes a “new person.” In the eyes of the talmudic sages, conversion marked a sharp and irrevocable break with one’s past and with one’s connections to the non-Jewish world. However we understand this concept today, it has nothing to do with the case of an embryo conceived through IVF. This fetus may experience a change of place, but unlike the proselyte it undergoes no transformation of religious status.

 

We learn two things from these observations. First, rabbinic scholars ought to acknowledge that traditional techniques of halakhic analysis, in particular the case method of reasoning by analogy, are of limited usefulness in an area dominated by technological novelty and innovation. The tortuous logic of the arguments we have just cited demonstrates that there may simply be no precedents or source materials in talmudic literature that offer plausible guidance to us in making decisions about these contemporary scientific and medical issues.27 Second, given our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments. To ask “who are this person’s biological parents?” is to ask a scientific question whose answer is determined according to accepted scientific indicators; i.e., genetic testing. Hence, the biological parents of the child are those who donated the sperm and the egg from which he or she was fertilized.

 

In the event that a child is born to or raised by parents other than those who donated the sperm and the egg, he or she becomes the adoptive child of those parents. This does not present inordinate difficulties under Jewish law. As we have written elsewhere,28 adoptive parents are a child’s ultimate parents; those who raise, care for, educate and love the child during his or her life assume full parental status. It is to them that the child owes the duty of honor and reverence.29 The child adopted by another couple has no legal or religious relationship to the donors of the egg and sperm, although for personal, medical, and genetic reasons the child or his/her guardian should be permitted to discover the identity of the biological parents at an appropriate time.

 

Conclusion.

To summarize:

1. A human embryo or zygote is, like the fetus, a potential but not a legal person, and there is no explicit Jewish legal prohibition against its destruction.

 

2. In vitro fertilization is a legitimate medical therapy, offering realistic hope to many who seek to build families. Since the creation of multiple embryos is a necessary element of IVF, and since the preservation of “excess” embryos may constitute a serious impediment to the availability of this procedure, it is permissible to discard those embryos.

 

3. The embryo may be used for medical research, provided that it is handled with the proper respect and reverence.

 

4. The embryo may be offered to another couple. The child will be the biological offspring of the man and woman who donated the sperm and the egg. Those who raise the child are his or her “ultimate” and “real” parents.

NOTES

1 See the article by our colleague David Ellenson, “Artificial Fertilization (Hafrayyah Melakhotit) and Procreative Autonomy,” in W. Jacob and M. Zemer, eds., The Fetus and Fertility in Jewish Law (Pittsburgh and Tel Aviv: Freehof Institute of Progressive Halakhah, 1995), 19-38.

 

2 This fundamental question has never been addressed to or by the Responsa Committee. Therefore, while our she’elah proceeds on the assumption that the answer is affirmative, we find it necessary to fill this lacuna in our existing literature.

 

3 See Deut. 4:15, Lev. 18:5 and BT Yoma 85b; Isserles, YD 116:5.

 

4 M. Baba Kama 8:8; BT Baba Kama 91a-b; Yad Chovel 5:1l SA CM 426:31. An instance of unnecessary physical damage would be purely surgery undertaken for purely cosmetic reasons; see Teshuvot for the Nineties, no. 5752.7.

 

5 See the following responsa in Teshuvot for the Nineties: treatment for severe pain in terminally-ill patients (responsum 5754.14); medical experimentation under carefully controlled conditions (5755.11); on cosmetic surgery (5752.7); and abortion performed for the mother’s “healing” (refu’at imo; 5755.13).

 

6 The mitzvah is pikuach nefesh, the saving of human life. See Nachmanides, Torat Ha’adam (Chavel ed.), 41-42, and SA YD 336:1.

 

7 This suggests that the definition of “disease” is largely a matter of social construction: that part of our biological or psychological systems is functioning “improperly” is a judgment we make based upon a conception of what “proper” functioning is.

 

8 Gen. 1:28; M. Yevamot 6:6; Yad, Ishut 15:1, and SA EHE 1:1. For Reform Jewish teachings concerning the mitzvah of having children, see Gates of Mitzvah, 11, and American Reform Responsa, no. 132.

 

9 Rav Chisda’s position in the Talmud is cited as halakhah in Yad, Terumot 8:3.

 

10 Most halakhic authorities hold that there exists a prohibition (isur) against destroying a human fetus without sufficient cause, although there is a good deal of dispute as to the precise definition and legal basis of this prohibition; see R. A.S. Avraham, Nishmat Avraham, CM 425:2, sec. 1, for discussion. As to the debate over what counts as “sufficient cause” or warrant for abortion, see our responsum 5755.13.

 

11 R. Ya`akov Emden, Resp. Chavat Ya’ir, no. 31; R. Yechiel Ya`akov Weinberg, Resp. Seridey Esh 3:127 (p. 341); R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 7:48, ch. 1 (pp. 190-191).

 

12 R. Shmuel Halevy Wasner, Resp. Shevet Halevy 5:47. The permit to perform otherwise forbidden work (melakhah) on Shabbat or Yom Kippur in order to save a fetus is found in Halakhot Gedolot (Laws of Yom Kippur; Warsaw ed., 31c; ed. Hildesheimer pp. 319-320) and cited by Nachmanides (Torat Ha’adam, ed. Chavel, pp. 28-29), who applies it even to a fetus less than forty days old. This would seem to be a contradiction: if it is not forbidden to destroy a fetus at this early stage, on the grounds that it is not a “fetus” at all, how can it be allowed to transgress the laws of Shabbat, an otherwise capital offense, in order to save it? Yet this problem can be resolved, for even at less than forty days the fetus is still a life in becoming, and we are taught that the duty of pikuach nefesh, the saving of life, applies even to cases of safek, when we are uncertain that “life” can be saved by our action (BT Yoma 85b; see Resp. Seridey Esh loc. cit.). Moreover, we might also remove the difficulty by saying that the permit to violate Shabbat and Yom Kippur applies in fact to saving the life of the mother, not that of the fetus (Hil. Harosh, Yoma 8:13; R. Nissim Gerondi to Alfasi, Yoma, fol. 3b).

 

13 See Sefer Assia 8 (1995), 3-4. Halevy, it should be noted, does not express a clear opinion as to whether the procedure of IVF is itself permitted; he explicitly notes that his ruling applies only to individuals or institutions who “adopt the opinion of those who permit (the procedure).”

 

14 Techumin 11 (1991), 272-273.

 

15 “The fetus is not a legal person” (lav nefesh hu); see Rashi, BT Sanhedrin 72b, s.v. yatza rosho, and Sefer Me’irat Eynayim, CM 425, no. 8.

 

16 The language is purposefully reminiscent of that utilized by R. Ben Zion Meir Hai Ouziel (Resp. Mishpetey Ouziel 3, Choshen Mishpat, no. 47), who permits abortion when there is a “slim pretext” (sibah kelushah) on which to argue that the procedure is necessary to safeguard the mother’s health.

 

17 Although this remains somewhat controversial; see the discussion on artificial insemination in A.S. Avraham, Nishmat Avraham, EHE 1, pp. 5ff.

 

18 On medical experimentation in general, see our responsum 5755.11 and R. Walter Jacob, Questions and Reform Jewish Answers, no. 152.

 

19 Resp. Tzitz Eliezer 15:45.

 

20 Moreh Nevuchim 1:72.

 

21 BT Kiddushin 69a.

 

22 The child of two gentiles is their legal offspring; see Encyclopedia Talmudit 5:289-295. Indeed, the passage in BT Kiddushin says only that the child is not related to the Jewish father (see Rashi, s.v. kevelad bema`ey behemah damey); this does not affect the existence of yichus between the mother and the child.

 

23 See the articles by R. Zalman N. Goldberg and R. Avraham Kilav in Techumin 5 (1984), 248-267.

 

24 BT Yevamot 97b.

 

25 BT Yevamot 22a and parallels.

 

26 See R. Yehoshua Ben-Meir in Assia 8 (1995), 73-81 and 153-168: the texts support various conclusions: the child is the offspring of the biological mother; the child is the offspring of the birth mother; the child is the offspring of both; the child is the offspring of neither. Not surprisingly, he concludes that “this question requires careful analysis and decision by the leading authorities” (81).

 

27 See Ellenson (note 1, above).

 

28 Teshuvot for the Nineties, no. 5753.12.

 

29 See Ex. 20:12 and Lev. 19:3. A parent may waive the honor and reverence owed him or her by a child. The decision to allow one’s biological child to be raised by others, though made for good and noble reasons, constitutes such a waiver.

If needed, please consult Abbreviations used in CCAR Responsa.

✕