Hatafat Dam Berit for a Three-Year-Old Child of a Mixed Marriage
A Reform mohel was asked to perform the berit milah of a newborn child and, on the same occasion, give a name to the child’s three-year-old brother. This latter ceremony raises the she’elah. For upon arriving at the synagogue, where milah and naming were to take place, the mohel discovered two pertinent facts: 1) the father of these children is Jewish and the mother is a Gentile; 2) the three-year-old had been circumcised in the hospital with no religious ceremony prior to the eighth day of his life. The mohel performed the naming ceremony by reciting parts of the milah liturgy, making appropriate changes. Still, since the older child had not undergone the actual milah ceremony at its proper time, the mohel now wonders whether he should have taken the ritual drop of blood (hatafat dam berit) in order to symbolize the child’s entry into the covenant of Abraham.
Our responsum must consider three separate yet related issues: 1) the Jewish status of the three-year-old child; 2) the halakhah concerning hatafat dam berit for a male who was circumcised prior to his eighth day; 3) other issues which might affect our decision.
I. The child’s Jewish status. Were we to regard this child as a non-Jew there would be no question of the ritual validity of his circumcision. His milah would have been performed for the purpose of converting him to Judaism (leshem gerut), while the requirement for circumcision on the eighth day applies only to infants who are Jewish by birth.1 For us, however, the three-year-old child qualifies for the “presumption” of Jewish identity under the “patrilineal descent” resolution of the CCAR.2 The resolution specifies that this presumption must be established through “appropriate and timely public and formal acts of identification with the Jewish faith and people,” an example of which is “the acquisition of a Hebrew name.” The naming ceremony performed by the mohel thus confirms that this child has been Jewish from birth. We are dealing therefore with the milah not of a convert but of a Jewish child:3 does a circumcision performed prior to the eighth day of his life fulfill the requirements of ritual circumcision, or must a drop of blood be taken in order to invest the surgical procedure with religious significance?
II. Halakhic Considerations. According to Jewish law, a male infant is to be circumcised on the eighth day of his life, during daylight hours from sunrise on.4 In our case, the circumcision took place before the eighth day; has the mitzvah of circumcision been fulfilled thereby? The 14th-century authority R. Asher b. Yechiel rules that hatafat dam berit is not required when a boy is circumcised prior to his eighth day. He learns this from the statement in the Talmud that if a child whose eighth day falls on Shabbat is mistakenly circumcised the day before, “the Sabbath cannot be overridden” to take the drop of blood from him.5 This contrasts with the well-known rule that a circumcision performed at its proper time (i.e., the eighth day) does take place on Shabbat.6 This means, says a later authority, that the premature circumcision is ritually acceptable, for otherwise the hatafat dam berit would be considered the actual fulfillment of the mitzvah and, if it occurred on the eighth day, would override Shabbat. Since the taking of a drop of blood does not, however, override the Shabbat, “you must conclude that circumcision performed prior to the eighth day is not unfit and does not require hatafah.”7 This position is codified by the 16th-century poskim R. Moshe Isserles and R. Shelomo Luria.8
On the other hand, R. Shabetai Kohen, a leading 17th-century commentator to the Shulchan Arukh, rejects the position of R. Asher, Isserles, and Luria. He argues that the fact that hatafat dam berit does not override the Shabbat is no proof that a circumcision which takes place prior to the eighth day is ritually fit. In his view it is only the actual procedure of circumcision, and not its ritual substitute, which is permitted on Shabbat if that is the boy’s eighth day. Nonetheless, a premature circumcision does not fulfill the mitzvah and a drop of blood must be taken, albeit on a weekday.9 A prominent later authority, however, upholds the logic of those who do not require hatafat dam berit: if the premature circumcision did not fulfill the mitzvah, then the taking of a drop of blood surely does perform that requirement and ought to be allowed on Shabbat if that is the boy’s eighth day. There is no reason to distinguish between the procedures. If one fulfills the mitzvah thereby, one ought to be allowed to do so on Shabbat. But inasmuch as all agree that hatafat dam berit does not override Shabbat, we conclude that the mitzvah has been fulfilled by the earlier circumcision.10
We might explain the dispute between the two positions in the following manner. Those who rule stringently see the requirement that milah be done at its proper time as a condition of the commandment. There is no mitzvah to circumcise prior to the child’s eighth day, and a circumcision performed during that time fulfills no commandment. The ritual obligation of berit milah must still be met through hatafat dam berit. Those who rule leniently agree, of course, that milah ought to occur on the eighth day. But if the circumcision is done prematurely, the obligation to perform that procedure no longer exists, and no ritual substitute is required. Just as one is exempt from the obligation of tsitsit if one does not wear a four-cornered garment and from the commandment to remove leaven from the house before Pesach if one possesses no chamets, so too is one exempt from the mitzvah of milah on the eighth day if the child has already been circumcised.11
There are, in other words, two alternative interpretations of the halakhah on this point. Contemporary Orthodox opinion favors the more stringent position.12 We disagree.13 The stringent position is based almost exclusively upon the ruling of R. Shabetai Kohen, which as we have seen has been refuted by later authorities. It is not demanded by the talmudic sources, which have led a number of poskim to rule that hatafat dam berit is not required in this case.14 It is merely a chumra, a stringency imposed upon Jewish ritual practice either by those who are unable to decide which interpretation of the sources is correct15 or by those who deem it necessary for reasons of religious policy. Whether such a stringency is in fact justified on policy grounds we shall consider below. In the meantime, we conclude that the halakhah does not require hatafat dam berit for a Jewish child circumcised prior to the eighth day of his life.
III. Other Considerations. We now inquire into those “reasons of religious policy.” Do any exist which speak to us, which would persuade us that this child should be made to undergo hatafat dam? An argument of this type is advanced by the late R. Isaac Klein, one of the leading halakhists of the Conservative movement. Noting that many circumcisions take place prior to the eighth day “through ignorance or for convenience,” he rules that “in order to discourage this practice, we would insist that such circumcisions are valid only if a drop of blood is drawn on the eighth day.”16 As a matter of general principle, we share with our Conservative colleagues this concern that milah be performed on the eighth day.17 Indeed, it is precisely when circumcision is conducted according to Jewish ritual requirements that it is transformed from a purely surgical procedure into berit milah, a sign of this child’s entry into the covenant, a religious act undertaken with the proper spiritual intention, an acknowledgement of our continuing bond with the tradition of Israel.
Nothing in this responsum, therefore, should be construed as expressing our approval of circumcision performed prior to the eighth day. On the other hand, we cannot lose sight of the fact that the child in our case is not eight days but three years old; for him, as well as for his family, the experience of hatafat dam berit would likely be traumatic and terrifying. Given that Jewish law does not require this ritual of a child circumcised before the eighth day, we believe that the negative repercussions of imposing stringency in this case would far outweigh any benefits we might hope to gain thereby. While we strongly encourage Jewish parents to have their sons circumcised on the eighth day in accordance with Jewish tradition and Reform practice, no good purpose would be served by requiring that a child in a case such as ours undergo the ritual drawing of a drop of blood.
We conclude that the mohel’s actions were proper18 and that they displayed the sensitivity and the learning which we would hope to find in all Jewish professionals. He brings credit to himself as a Reform mohel and to our movement as a whole.
(See note 3, above) Were this child born a non-Jew (and traditional halakhah does so regard him), we would need to consider whether hatafat dam berit was required to convert him to Judaism (leshem gerut), inasmuch as his circumcision was not performed for that purpose.19 In our Reform tradition, this question is addressed by an 1892 resolution of the CCAR which permits a Reform rabbi to perform conversions “without any initiatory rite, ceremony, or observance whatever.”20 This clearly dispenses with circumcision, hatafat dam berit, and immersion as essential ritual prerequisites for conversion. The question has been raised: what does this century-old resolution mean to us, rabbis operating in a vastly different religious climate? Are we still bound by its provisions? If so, how does this affect the guidance which this Committee may offer on she’elotthat touch upon conversion to Judaism?
It is true that the resolution’s accompanying argumentation, authored by Rabbi Isaac Mayer Wise, is couched in language and expresses ideas which strike many of us as outdated.21 Nonetheless, it remains the official statement of the policy of the Central Conference until such time as it is amended or repealed. This Committee, unlike individual Reform Jews, rabbis, or congregations, is an agency of the Conference and in that sense is bound by explicit statements of Conference policy. At the same time, in judging how such a resolution should be applied in practice, we need to look not only to its wording but also to the history of its interpretation. We need to get a sense of how this statement has been implemented in Reform Jewish religious life for the past hundred years: how have Reform rabbis (and the Responsa Committee) understood its terms and provisions.22
When we consider the matter from this perspective, we find that Reform rabbis have not entirely dispensed with ritual requirements for conversion. Virtually every member of the Conference, when performing conversions, accompanies them with some ritual or “initiatory rite”. Such a ceremony is included in our Rabbi’s Manual, which provides for both milah and tevilah (ritual immersion) for proselytes. While these are not mandatory, “nevertheless, we recognize today that there are social, psychological, and religious values associated with the traditional initiatory rites, and therefore recommend that the rabbi acquaint prospective converts with the halakhic background amd rationale for berit milah, hatafat dam berit, and tevila and offer them the opportunity to observe these rites. In Israel, Canada, and various communities elsewhere, giyur [conversion] is performed by our colleagues in accordance with traditonal halakhic practice.”23 Our Committee, too, has dealt with milah and tevilah as serious, relevant options for conversion under Reform auspices.24 Both these responsa and the Manual take note of the 1892 resolution but add that it is customary among many Reform communities to require these rites of converts. This is not a case of local custom superseding formal law;25 rather, what has happened in our communities is an example of the age-old tendency of minhag to operate within “neutral spaces” in the law, defining the authoritative practice where none exists26 or where the formal halakhah is either vague or equivocal.27* Our practice, in other words, has determined that the 1892 resolution does not demand the elimination of ritual requirements for conversion and that the restoration of these requirements violates neither the letter of the resolution nor the spirit of Reform Judaism.
The Committee’s approach to this subject should keep this nuanced reality in mind. So long as the 1892 resolution remains on the books, we should remind our correspondents that circumcision and immersion are not required for conversion. They have, however, become the norm in many of our communities, for good and sufficient cause.28 If such is the practice of those who submit inquiries to us, we shall answer them within the context of their own minhag.
See R. David Zvi Hoffman, Resp. Melammed Leho`il, YD, # 82: hatafat dam berit is not required for the adult son of a Jewish father and a non-Jewish mother who was circumcised at birth but not immersed for purposes of circumcision. Significantly, this applies even when the mohel was under the mistaken impression that the child was born Jewish. Hoffman argues that the milah in any event was done for the purpose of mitzvah, since all Jewish males, whether Jews by birth or by choice, must be circumcised. Thus, the requisite intent to perform mitzvat milah was present, and the child (now an adult) need only ratify his status as a proselyte with ritual immersion. CCAR Yearbook, xciii (1983), 157-160. Our responsum speaks to the situation of Jewish communities which recognize patrilineal descent. Other Jewish communities will regard this child of a non-Jewish mother as a non-Jew who would require conversion. While it is reasonable to assume that Reform mohelim will act in accordance with the Reform interpretation of Jewish law and tradition, they along with rabbis have a moral obligation to inform parents in cases such as this that other streams of Judaism do not accept this milah as the circumcision of a Jewish child. Honesty and integrity demand that we stand for our own beliefs; they also demand that we offer all who come before us the same opportunity to make informed decisions concerning their Jewish lives. On the requirement of milah for conversion, see Excursus. Genesis 17:12 and Leviticus 12:3; BT Pesachim 4a and Yevamot 72b; Megillah 20a and Rashi ad loc., s.v. ad hanets hachamah. Hilkhot HaRosh, Shabbat 19:5; the talmudic statement is found in BT Shabbat 137b. BT Shabbat 132a; Yad, Hilkhot Milah 1:9. R. Yoel Sirkes, Bayit Chadash to Tur, YD 262. Isserles in Sh. A, YD 262:1; Luria in Yam Shel Shelomo, Yevamot 8:6. As noted by both Siftey Kohen and Turey Zahav to Sh.A., YD 262:1, Isserles seems to contradict himself in this very paragraph when he rules that a circumcision that takes place at night is invalid and requires hatafat dam berit. But see Isserles in his Darkey Moshe, Tur YD 262: the prohibition against performing a circumcision at night is more strenuous than the one forbidding the ceremony prior to the eighth day. Meanwhile, two other poskim (Luria, loc. cit., and Perishah, Tur YD 262) resolve the contradiction by ruling that a circumcision that takes place at night, like the one that takes place prior to the eighth day, is ritually fit and does not require hatafat dam berit. Siftey Kohen, Sh. A., YD 262, # 2. R. Aryeh Lev b. Asher (18th cent.), Resp. Sha’agat Aryeh, # 52. This explanation is advanced by R. Yosef Babad (19th cent.), Minchat Chinukh, mitzvah 2. See also Sha’agat Aryeh, who calls circumcision before the eighth day an “irreparable error”; compensation in the form of hatafat dam is neither required nor efficacious. See Arukh HaShulchan, YD 262, par. 5. Most authoritative halakhic compendia on berit milah acknowledge that there is a dispute over this issue; see R. Asher Greenwald, Zokher Haberit (Hungary, 1931), ch. 4, # 9. Some popular works, however, tend to ignore the lenient opinion altogether and give the false impression that all authoritires require hatafat dam. Examples are R. Paysach Krohn, Bris Milah (Brooklyn, Mesorah Artscroll Series, 1985), 92, and R. Eugene J. Cohen, Guide to Ritual Circumcision (New York, 1984), 9. In general, readers should be advised to utilize such popular Orthodox guides with appropriate caution. See American Reform Responsa, # 56, pp. 145-146. See notes 5, 8, 10 and 11. Sha’agat Aryeh, # 54, adds Maimonides to this list. He deduces this from Yad, Hilkhot Milah 2:1, where Rambam rules that while a circumcision may not be performed by a non-Jew there is no need to take a drop of blood to validate the procedure. This implies, says R. Aryeh Lev, that Rambam subscribes to the “irreparable error” theory (see note 11) and would apply it to the case of premature circumcision. Bayit Chadash (see note 7). R. Isaac Klein, A Guide to Jewish Religious Practice (New York, 1979), 425. Contemporary American Reform responsa, # 28, p. 48; Gates of Mitzvah, 14. One member of our Committee dissented. He would require hatafat dam in this case, for reasons that parallel those cited by Rabbi Klein (see note 16). Shabbat 135a; Alfasi ad loc.; Yad, Hilkhot Milah 1:7; Sh. A, YD 268:1. CCAR Yearbook, v. iii, 94-95; ARR, 236-237. See the critique by R. Solomon B. Freehof, Reform Responsa for Our Time, # 15, pp. 71-79. In a similar way, our Committee has issued a number of decisions pertaining to the Patrilineal Descent resolution. These decisions are part of the “annotated edition” of the resolution, part of a tradition of interpretation which over time will determine its actual parameters. Rabbi’s Manual (New York, CCAR, 1988), 232. The ceremony for conversion is at 199ff. ARR, # 57, pp. 146-149 and # 69, pp. 238-239; CARR, # 44, pp. 74-76; # 45, pp. 76-79; # 47, pp. 83-85; and # 49, 83-85. Minhag mevatel halakhah; see Y. Baba Metsi`a 7:1. Yad, Hilkhot Shevitat Asor 3:3: minhag is valid when it constitutes a choice between several options permitted by halakhah. See the famous incident between Hillel and the Beney Beteira (Pesachim 66a). On the relationship between minhag and halakhah in general see Menachem Elon, Jewish Law (Philadelphia, 1994), This may involve a desire to emphasize that, in accepting proselytes, the community sees itself as representing not only the Reform movement but the Jewish people as a historical entity; it therefore adopts the same conversion procedure utilized by all Jewish communities.
If needed, please consult Abbreviations used in CCAR Responsa.