RR 200-206


What is the attitude of our tradition to a child that is to be adopted? What ritual must it go through? What is its status? (Asked by Rabbi Eugene Lipman, New York City)

It should be clear at the outset that the racial descent of the child has absolutely no significance in Jewish law. It is true that the Bible (Deuteronomy 23 : 3-4) mentions Ammonites, Moabites, Egyptians, et cetera, who may not enter into the Jewish community. However, this law ap-plied only to male members, not to female members, as the Talmud makes clear (b. Yebamos 76b-77a). Furthermore, all these racial distinctions no longer have any bearing at all. Rabbi Akibah stated in Tosefta Kiddushin V : 4 that the Assyrian king Sennacherib “mixed up all the races” through his conquests, so that no race is now recognizable for specific prohibition. Akibah’s statement is embodied in Jewish law. Maimonides (in Yad Hil. Issure Biah XII : 21) says that now no races are distinguishable, and therefore all may enter the Jewish community. Thus it is clear that, according to Jewish law, race is not involved in the question of adoption.

But another question is involved that must be carefully discussed. The same passage in Scripture that discusses the inadmissibility into the community of Moabites, Ammonites, et cetera (Deuteronomy 23 : 3), also says that a mamzer (bastard) may not enter into the community. Since many of these children put up for adoption were born out of wedlock, what we must be concerned with here is the child’s personal status at birth.

There is considerable law about the legal status of parentless children or children of doubtful parentage. These laws are basically concerned with the question of bastardy (mamzerus), since a mamzer is forbidden to marry into the Jewish family. Of course it must be understood that the term “mamzer” is much more liberally understood in Jewish law than is the term “bastard” in modern languages and law. A child born out of wedlock is not necessarily a mamzer in Jewish Jaw. Only a child born out of a connection that cannot be legitimized is a mamzer; thus the child of a married woman and a man not her husband, or the child of the forbidden degrees of blood relationship. The possibility of mamzerus applies only to the child of a Jewish mother, because a Gentile child, whatever he be, becomes a kosher Jew if converted; but even with a Jewish mother, only if it is absolutely known that the child is from a Jew whom she could not possibly marry (or if there is an overwhelming presumption that that is so), only such a child from a Jewish mother is a mamzer and is forbidden. When we do not know the parents, as is generally the case nowadays, we presume that the child is Gentile and therefore admissible; and even if we know that the mother is Jewish, even so, the general presumption is that the child is kosher.

The law of the status of such children of doubtful parentage is given first in the Mishna briefly (m. Kiddushin, IV, 2), then in greater detail in the Talmud (b. Kiddushin 73a), then in the various codes (Yad. Hil. Issure Biah, 15 : 30, 31; Shulchan Aruch, Even Hoezer 4 : 30, 32). There are two elaborate responsa on the question, one by Ezekiel Landau (“Nodah b’Yehudah” I, Even Hoezer 7), and Benjamin Weiss, Rabbi of Chernowitz (Even Y’karah II, 5). All these sources classify the dubious children under two headings: “Shetuki” (“undescribed children,” i.e., about whom the mother is silent); and “Asufi” (“picked-up children,” or foundlings). As for the Shetuki, if the mother on being questioned says that the child is the result of a relationship with someone kosher, that is, not of a forbidden degree, she is believed and the child is kosher.

In his responsum mentioned above, Ezekiel Landau says that although the Jewish mother has died and can no longer be questioned, the overwhelming presumption is that the intercourse was not with anyone of the forbidden degrees (that is, not with a forbidden Jew), and that therefore the child is kosher. Even if it were with a Gentile man, the child still follows the status of the Jewish mother and is also Jewish, and therefore needs no conversion. He says further that if it is known that the child is that of an unmarried woman, there is absolutely no doubt as to the child’s complete acceptability. In the responsum of Weiss, the mother first claimed that the child was the result of sexual relationship with her husband who died before it was born, but she later admitted that it was the child of a Gentile father. In either case, since the child follows the status of the mother, and there is no weight of presumption that she had relationship with a Jew who is forbidden to her, the child is kosher.

Most of the children adopted nowadays are from un known parents. They are therefore children who, if described at all under one of the two above-named categories, would be described not as Shetuki (“undeclared”) but as Asufi (“foundlings”). Since there is no parent whom we may question in the case of an Asufi, the Talmud considers an Asufi a “S’fak mamzer” (a mamzer, doubtfully); but even a S’fak mamzer may, according to the law of the Torah (b. Kiddushin 73a), be married into the community. But the Talmud makes so many restrictions as to the term Asufi that nowadays almost no child could be put in that derogatory category. The Talmud (in Kiddushin 1 c) says that an Asufi is only such a child as has been clearly thrown away to die (the presumption being that the child is a mamzer and that the mother is afraid to have anything to do with it). But any foundling who shows evidence of care by his dress or by his having been washed or anointed, or by its having been put where someone could pick it up, is not an Asufi at all and is presumably kosher.

Since nowadays, however, the majority of the people in cities are Gentile, such a child is presumably Gentile, and therefore must be converted, or accepted in some way into the community. The Talmud (m, Kesuvos IV : 3 and b. Kesuvos 11a) speaks of the conversion of children. What process is to be followed? The Orthodox would require the ritual of the bath for all children in addition to circumcision for boys. On the question of the conversion of children (not specifically for adopted children, but it applies fully), the Central Conference of American Rabbis came to a definite decision in the report on marriage and intermarriage. There it was decided that such children need go through no other process than to attend our religious schools, and that the confirmation service that ends the school course shall be deemed sufficient as a ceremony of conversion. Naturally, a boy adopted would be circumcised. Generally now most boys are circumcised. In that case, a more observant family might want to take the drop of blood of the covenant.

The final question is this: What is the status of an adopted child in a Jewish family? On this question there are, first of all, a number of haggadic sayings which, while not strictly legal, embody the spirit of Jewish life with regard to adopted children. The Talmud says: “Whoever raises an orphan in his house, Scripture considers him as if he were his physical parent” (b. Sanhedrin 19b). On the same page there is an analogous statement: “He who teaches a child the Torah is as if he were his parent.” In Exodus Rabba 46 : 5, there is an elaboration of the verse in Isaiah, “Thou, O God, art our Father.” The Midrash says: “Whoever raises the child is called father, not the one who begets it.”

But, in addition, there is strict halachic evidence of the full status of an adopted child. Meir of Rothenburg, in his Responsum #242 (ed. Lemberg; and also found in “Teshuvos Maimoniyyos,” at the end of Mishpotim #48) discusses the following question: If a man writes on a business note (sh’tar) the name of his wife’s son, whom he has raised, and refers to him as “my son,” is the note legal? Meir of Rothenburg says it is absolutely legal, and adds, as a general principle: “If a man raises an orphan in his house, the orphan is considered his son. He may refer to the boy as ‘my son,’ and the son may refer to the parents as father and mother, and there is no legal objection to that nomenclature.” This statement is formally embodied in the law (Shulchan Aruch, Choshen Mishpot 42 : 15). Isserles agrees that such notes are legal.

In the special case of vows, there is some questioning of the right of such people to call each other, respectively, “father” and “son.” That is to say, if a man who has natural sons and also an adopted son makes a vow that he will accept no benefits from his sons, does that vow prevent him also from accepting any benefits from his adopted son? This question is discussed by Jacob Emden in his Responsum #165; he adds some doubts as to the adopted son being always referred to as “son” in such specific cases, although in general he accepts it. But, of course, vows are always construed liberally so as to provide relief from the burden of a hasty vow. (See a fuller discussion of this question by Eleazar Wildenberg, Jerusalem, in Ha-Pardes, Vol. 23, No. 3, p. 13.) For a recent discussion of the problem of adoption, see Ben Zion Uziel, “Shaare Uziel,” pp. 183 ff. He deals chiefly with matters of inheritance. A well-known contemporary Orthodox rabbi, Joshua Henkin (see Ha-Pardes, Vol. 32, No. 4, January, 1958), opposes adoption altogether on a rather curious but characteristic ground: When the Talmud and Shulchan Aruch permit the conversion of a Gentile infant, it is because it is a benefit to be a Jew, and you may benefit someone without his express consent. But nowadays, with so many Jewish homes not Orthodox, what benefit is it for a child to be a Jew of that kind?

Aside from this strange and exceptional opinion, however, it is clear that race or religion of parents has no bearing with us. A child who is adopted is accepted in Judaism according to the practices of the branch of Judaism to which the adopting family belongs. Such a child is abso lutely and completely a member of the family, a full child of the parents.