Adoption

RR 200-206

Adoption

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.

CURR 196-199

ADOPTION OF CHILDREN OF MIXED RACE

There are a number of children born out of wedlock of Jewish mothers and Negro fathers. Are these children Jewish? They can be given for adoption to Negro families. Should they be given to those Negro families which call themselves Jewish, belonging as they do to “Jewish Negro” congregations in New York? (From Rabbi Isaac N. Trainin, Commission on Synagogue Relations, Federation of Jewish Philanthropies of New York.)

ONE might imagine that marriage between the races, producing half-breeds and people of skin colors which have not existed before, would indeed be a violation of the commandments implied in Leviticus 19:19 and Deuteronomy 22:9, where one is forbidden to sow with mixed seeds or to breed animals of different species. None of the earlier com-mentators offer any explanation as to why it should be wrong to mix breeds of plants or animals. The first to offer any explanation was Nachmanides (thirteenth century). Nachmanides, in his commentary on Leviticus 19:19, sug-gests a reason why such mixing of separate species is a sin. It is due to the fact, he says, that the man who creates such new breeds implies that God, Who created the present spe-cies and gave them the power to perpetuate themselves, had not done a perfect work at Creation, and that there is now need of new species of plants and animals, etc. In other words, the species as they exist are God’s work and presum-ably are perfect. To make new species is, therefore, a sin. This is a general consideration, but let us consider specific-ally the question of mixing the human races.

In Numbers 12:1, we are told that Miriam and Aaron rebuked Moses for “the Ethiopian woman” (Cushite) whom he had taken. The Targum (evidently in defense of Moses) translates “Cushite” as “the beautiful woman” and the Talmud (Moed Katan 16b) also explains away the word “Cushite” by saying that this is really his wife Zip-porah and that she was called “Cushite” because, being a Midianite, her skin was deeply tanned by the desert sun. The Talmud in the same passage explains away the Ethi-opian benefactor of Jeremiah, Ebed Melech, and implies that he was a Hebrew named Zedekiah.

Nevertheless, all this explaining away of the word “Ethi-opian” by Targum and Talmud does not necessarily indi cate that racial prejudices were involved. Also, the Talmud (b. Berachoth 59b) states that he who sees an Ethiopian must make a special blessing: “Praised be Thou, Who hast made a variety of creatures,” but this, too, is not anti-Negro prejudice because the same blessing must be recited, according to the Talmud, when one sees an unusually short man or an unusually tall man. So the law is recorded in the Shulchan Aruch, Orah Hayyim 224:9.

Nowhere does the Bible prohibit the admixture of races. Ezekiel, speaking to the Children of Israel in Chapter 16, verse 3, says: “The Amorite was thy father and thy mother was a Hittite.” So, too, with regard to the vast mixed multitude which came out of Egypt. While this mixed multitude is sometimes deprecated as the source of sinfulness, there is no statement which I remember to the effect that the descendants of the Twelve Tribes kept from intermarrying with the mixed multitudes. (See above Chapter 30.)

Since the status of a child of a mixed marriage depends upon the status of the mother, a child born of a Jewish mother is a Jewish child and must be so considered, no matter what the color of its skin may be. However, the question asked goes further: Should we consider the members of Negro congregations who call themselves Jewish as being truly Jewish? The question must be settled before the Jewish Federation can give a Negro Jewish child to such a family for adoption. Whether any family is Jewish depends upon whether it is descendant from a Jewish mother. The rest, as we have mentioned, makes no difference. But if it is a family not descendant from a Jewish mother, as is the case with most, if not all the people in these “Negro Jewish” congregations, then they are not Jewish unless they are correctly converted to Judaism. Those who have been correctly converted to Judaism are Jews in every sense of the word. Those that are not so converted are only Jews if they are descendants of a Jewish mother.

May the child be given to such a family, if the family is not considered Jewish? This is, likewise, a religious problem. May we give a Jewish child to a Gentile family to be raised and, indeed, adopted? Clearly, most Orthodox authorities would say “no,” but in this case, liberal opinion would say “yes.” The liberal opinion would be based upon the realities of social life in America. If we Jews fight for the right to have Christian children adopted in Jewish families, we should not object under special circumstances if Jewish children are adopted in Christian families. In this special case, this dark skinned Jewish child will have no home at all unless given to this Negro family for adoption.

CORR 145-150

QUESTION:

If a husband marries a widow with two children and adopts both children and the husband is a Cohen, are both children considered a Cohanim? (Asked by Dr. Jacob R. Marcus, Cincinnati, Ohio)

ANSWER:

IF THE WOMAN’S first husband was a Cohen, then the children remain Cohanim, no matter how many times or whom she mar ries. If her first husband was not a Cohen and her second husband is a Cohen, this marriage does not affect the status of the children of a previous marriage. They are Israelites.

Of course, if she has children from this second husband and it is he who is the Cohen, then these children are Cohanim. But if the second husband is a Cohen and he adopts the children, does that change their status from Israelites to Cohanim?

This question, in this form, was never asked before, as far as I know, because Jewish law has almost nothing to say about adoption. To what extent are the adopted children the actual children of the adopting parent? The matter is discussed in my Reform Responsa (i.e., Vol. I, p. 200 ff.). The essence of the matter is this: Judging by the few Aggadic statements and one or two legal discussions, we can say that the children adopted are to be considered as much his children as the natural children; except, of course, that whether one is a Cohen, Levite or Israelite depends entirely on the bloodlines, and in this case upon the father’s status. The rule is that in every marriage where no sin is involved, the status of the child follows that of the father (m. Kiddushin, III, 12). Therefore by blood these children are Israelites. Adoption cannot change it.

The question as to whether a child adopted by a Cohen becomes a Cohen because of this adoption can be discussed in another way. A fair analogy can be made between the status of such a child and the status of a proselyte (ger).

With regard to a proselyte, we are taught that it is our duty to love him and to give him every consideration. In fact, Maimonides in his famous answer to Obadiah the proselyte said that (even though he, Obadiah, is not of Jewish descent) nevertheless when he prays he may always use the phrase, “our God and God of our fathers” (even though his fathers were not children of Israel). The reason is, as Maimonides says, that all the proselytes are children of Abraham our father. In fact, this is the law in the Shulchan Aruch, Orah Hayyim 199:4.

Nevertheless, although Maimonides would insist that a proselyte may use in his prayers the phrase, “God of our fathers,” Maimonides would never dream of saying that because of that right the various special laws governing the proselyte should not apply to him. For example, Maimonides would never say that a proselyte, like any other Israelite, may not marry a mamzer (which actually he may) or that the proselyte may act as a judge in a case involving born Israelites (which, in fact, he may not). In other words, Maimonides would give the proselyte every spiritual equality with born Israelites, but he would not dream of giving him ritual or ceremonial equality which would be against specific law.

The same analogy applies to the priesthood. Since priests today have no longer kept up a careful record of their genealogy, they therefore are actually in Jewish law “priests by doubt” (Cohen Sofek). (Cf. Mogen Avraham, Orah Hayyim 457, paragraph 9.) This being the case, one might perhaps say that the child adopted by the priest should have all the rights of the priest, since the priest is only a “priest in doubt” and these priestly privileges are given him merely out of courtesy and custom (cf. Responsa Isaac bar Sheshes, #94). In that case, why should not an adopted child take up all these privileges which, after all, are only courtesy, not a strictly legal priestly right?

Nevertheless, while this would seem reasonable, no scholar of the law would say that this child adopted by a Cohen is henceforth forbidden to go to the cemetery, as a Cohen is forbidden; or that this child when he grows up may demand the privilege of being called to the Torah first, as a Cohen may demand. In other words, a child adopted by a Cohen has all the spiritual advantages (for example, the right to affection, sustenance, education) that a natural born child has; but he cannot claim the ceremonial privileges or restrictions which apply only to the Cohanim. If, for example, this adoption occurred in ancient times, no single authority would dream of saying that this child may eat the heave offering (Terumah) which is the test of priestly descent. The ritual uniqueness of a Cohen is purely a matter of bloodlines, and the modern doubts as to Cohen status are a matter of genealogy.

So the analogy with the convert is a close one. Just as a convert has all the rights of a Jew except certain special ones which depend upon actual bloodlines (such as a Jew being forbidden to marry a mamzer), so this child adopted by a Cohen has all the spiritual rights of a born child, but none of the ceremonial uniqueness of a born priest.

A further difficulty in this situation arises as follows: This adopted child grows up and is called up to the Torah. Since, as mentioned above, he cannot claim to be called to the Torah first as a right which belongs to Cohanim, one would imagine that it would be wiser not to call him up to the Torah with the title “HaCohen” because often, when people would forget that he was adopted, they would ask him to come up first as a Cohen, or to go on the holidays to the duchan. Or he might be asked to preside at a Pidyen ha-Ben, all of which would be a considerable embarrassment, calling time and time again for uncomfortable explanations. He would constantly need to explain that he is adopted and not a Cohen by birth. Furthermore, it would be a life-long embarrassment to his parents, who may not want to be reminded all through their lives that this is not their son by birth.

Of course, not much harm would be done if he were called up first to the Torah, since there are some occasions when this is permissible. For example, if a Cohen (the only Cohen in the synagogue) came late to services and he is in the middle of his prayers when the Torah is being read, he may not be interrupted in his prayers in order to be called up first, which is the Cohen’s prerogative. An Israelite is called in his place (Orah Hayyim 135:5). Isserles adds (based on Maharik # 9) that if on fast days when they come to read the Torah the only priest present had not fasted, he cannot be called up to the Torah and, again, an Israelite is called up in his place. So if by chance this adopted person is called up to the Torah first, no harm has been done. Besides, Rabbi Jose in the Talmud says, “I know I am not a Cohen, but if I am called up to the duchan, I go” (Shabbas 118b). So while no great harm would be done, the situation might lead to uncomfortable explanations.

So even as far as the blessing of the community by the priest, there is this Talmudic precedent that it would not be so terrible a thing if a non-priest blessed the people. After all, in the daily service at the close of the Shemone Esra, before Sim Shalom, the reader reads the priestly blessing; and then, of course, it is an established custom that if for some reason a Cohen does not participate in the duchan (although it is a commandment) he can step out of the synagogue.

Perhaps the best solution would be in the community in which he lives and in which he is known, to be called up to the Torah, not as “Moses the priest, the son of Amram the priest,” but as “Moses, the son of Amram the priest.” This would be correct and as for cities in which he is not known, he need not claim to be a Cohen and so will have no embarrassment.

CORR 86-90

TWO ADOPTION PROBLEMS

QUESTION # 1:

A woman divorced her husband. She divorced him in court but has not yet received her Get. She became pregnant and states that the child belongs to her lover. She gave birth to the child and her sister adopted him. The sister now wishes to circumcise the child and give it a Jewish name. Since she did not receive a get from her husband, the child could easily be considered a mamzer, and therefore the question of circumcision is involved and all the problems of mamzeruth. In fact, the mother asked if she could have a Pidyen ha-Ben. (Asked by Aryeh Lev, New York, New York)

ANSWER:

IT IS INTERESTING that Rabbi Soloveitchik said that he would hesitate about calling this child a mamzer. I wish he would publish his response. His students justly admire him, but he deprives the rest of us from seeing his answers in writing.

The persons who asked you the question assume a principle which is not correct. They assume that a mamzer is out of the general orbit of Jewish law and that, therefore, it is a question whether circumcision, etc., are required in his case. But the laws concerning the mamzer are actually entirely different.

A mamzer is restricted only with regard to certain specific marriage laws. He may not marry into a normal Jewish family, but on the other hand, he may marry a slave and thereby a mamzer’s family can be purified (Kiddushin 69a). But beyond these two marriage laws, a mamzer is like all other Israelites and all the laws apply to him. For example, he can be a witness in a Jewish court (Choshen Mishpot 34:21, based on the debate in Baba Kama 88a and the Tosfos there). Also it is specifically declared that he must be circumcised even on the Sabbath (of course if it is the eighth day). In fact, Ezekiel Landau in his Noda b. Yehudah, II, Yore Deah 182, makes it as a general principle that a mamzer is in duty bound to obey all the commandments (with the marriage exception which I have mentioned). This statement of Ezekiel Landau’s is well known. It is stated also by Isaac Lamperonti in his Pachad Yitzchok, under the word mamzer.

So there is no question about the child’s being circumcised. That is mandatory (a mitzvah). Also there is no question about the Pidyen ha-Ben, except that with regard to the Pidyen ha-Ben certain difficulties may arise. It is the responsibility of the father to arrange the Pidyen ha-Ben. In this case, then, this man (the “lover”) would have to acknowledge the child as his and arrange for his redemption.

QUESTION #2:

A couple adopted a child. They do not know the source of the child. When they got the child the father had the boy circumcised for the purposes of gerut. Normally, sometime later, a Bes Din is brought together and the child is given mikveh and it is a kosher Jewish child. There are no problems there. In this instance they slipped up on mikveh. It was never performed. Now the boy is 121/2 years old and is being prepared for Bar Mitzvah. The parents are Orthodox Jews and they want to do what is right in accordance with law. However, they never informed this child that he was adopted. They still do not want him to know that he is an adopted child. They feel they may want to tell him at a much later age or never tell him at all. It is a forgotten matter in the family. The father is prepared to go to mikveh with his boy at this time on the excuse that they want to prepare themselves properly for the Bar Mitzvah at the syna-gogue. However, as far as this boy is concerned he is now a bar-daas and he must know that if it is for gerut he must have kavanah.

ANSWER:

THE QUESTION amounts to this: If a tevillah is not consciously declared to be a tevillah for the purpose of conversion, is it legally such or must the child be told that it is a tevillah for conversion? But if he were told he would find out what his adopting parents do not want him to find out, i.e., that he is an adopted child and born a Gentile.

Of course, if I were answering the question as a liberal, I would say that the tevillah is not indispensable; it can be omitted entirely; that Rabbi Eliezer in Yevamos 46a said that just as the patriarchs became Jews simply by circumcision and did not take the ritual bath, so if a proselyte is circumcised and does not take the ritual bath, he is a full Jew because of his circum cision. But, of course, such a decision would not satisfy an Orthodox rabbi, since the final state of the law is that a preselyte requires both circumcision and tevillah.

In that case, I would raise another question: This child is going to be bathed in order to complete, belatedly, the process of conversion. Does he need to be told the purpose of this tevillah? This depends on the larger question of whether Mitzvos need kavanah, conscious intention, or not. See the debate summarized in my Responsa Literature, page 259 ff.

But aside from the question of whether he needs kavanah for the tevillah to be legal, the law is very clear that if a proselyte takes a tevillah for any purpose other than consciously for proselytizing, that act of tevillah, even though not intended for this purpose, is nevertheless valid for proselytizing. The law is in Yore Deah 268:3, namely, that if a candidate for conversion does not take the bath for the purpose of being proselytized (as, for example, if the man takes the bath to be cleansed of a seminal impurity, or the woman candidate takes the bath for menstrual purification) then even so this bath is valid also for the purpose of conversion. Therefore if the father and the son go to the mikvah together and he does not tell the son that this bathing is for the purpose of completing the conversion, the bath is valid nevertheless for this purpose.

It should be noted, however, that Ezekiel Landau in his commentary Dagul Mirvava to the Shulchan Aruch {ad. loc.) says that when an infant is converted the tevillah must be consciously for the purpose of conversion (i.e., with kavanah). His reasoning is as fol lows: The true essence of the conversion process is the explanation by the Bes Din to the candidate of the commandments and their acceptance by the candidate. The ceremonial rituals are merely additions (necessary but not indispensable, at least with regard to the tevillah). Hence, the law is given in the Shulchan Aruch that if the tevillah is taken for any other purpose it is valid also for conversion. But this easement of the law cannot apply to an infant when converted because he cannot understand the explanations of the commandments and, therefore, the tevillah is not an “addition,” but of the essence. Hence the tevillah in the case of the infant must be with kavanah. But in the first place, Landau’s requirement of kavanah applies to the Bes Din, not to the candidate, i.e., the infant himself. Besides it refers only to the period of infancy, whereas in this case a boy on the verge of Bar Mitzvah certainly knows the meaning of the Mitzvos. Finally, Ezekiel Landau’s statement is only a solitary one. In general we can rely on the law as stated in the Shulchan Aruch that the tevillah need not be for the express purpose of conversion in order to be valid for conversion. Therefore the boy need not learn that he was adopted and converted.

RR21 no. 5760.9

CCAR RESPONSA COMMITTEE

5760.9

An Adopted Asian Child

She’elah.

I’ve been approached by a couple who are unable to have another child (they have one already) and are interested to adopt. They are exploring the possibilities of adoption in several countries including Thailand and China. If they were to be successful in adopting a child from one of these countries, they are seeking to know whether progressive Judaism has a view on the rights of the child to be raised with knowledge of their birth (native) culture, including religious traditions. Apparently, there is considerable discussion of this topic nowadays among those officials responsible for adopted children and their welfare. More generally, how does Judaism view the welfare of adopted children in this regard: their right “by birth” to learn about their native culture, weighed against the adoptive parents’ responsibility to raise their children with a sound Jewish education and sense of identity? (Rabbi Fred Morgan, Melbourne, Australia)

Teshuvah.

Our responsum is based upon two earlier teshuvot: no. 5753.12, “Kaddish for Adoptive and Biological Parents,”1] and no. 5760.8, “Withholding Paternity Information.” The former deals with the nature of the parent-child relationship in adoptive families; the latter discusses the responsibility shared by all parents to act in accordance with the best interests of their children.

The term “best interests of the child” does not, of course, originate in Jewish literature. We borrow it from the language of other legal traditions. Yet it is a principle deeply rooted in Jewish law, which posits that along with the child’s filial duty to honor and revere the parent (Exodus 20:12; Deuteronomy 5:16; Leviticus 19:3) come a set of obligations owed by parent to child.[2] To insure that these obligations are met, Talmudic law prescribes a number of general rules concerning parental care and custody of children.[3] These rules, however, can be altered or ignored by the rabbinical court (beit din) when it determines that the good of the child demands other arrangements.[4] “The best interests of the child,” in other words, serves as a guiding Jewish principle in matters relating to child-rearing and family relationships, and we think it applies quite directly to our case. Whether adopted children enjoy a Aright >by birth’” to learn about their native culture, it is certainly arguable that such knowledge will be beneficial or even essential to their psychological welfare. Those who study the growth and development of adopted children report that race and culture play significant roles in identity formation among adoptees whose racial and cultural heritage differs from that of their adoptive parents.[5] While we are in no position to evaluate the scientific literature in this field, much of the data seems to argue that it is important for parents to take active steps to assist their transracial and transcultural adopted children in building a positive appreciation for their ethnic origins.[6] If Judaism teaches us to work toward the “best interests of the child,” it stands to reason that our tradition would encourage adoptive parents to help their children learn about their native culture.

Our responsum 5753.12 declares that, according to the best reading of Jewish tradition, adoption creates a real family and a real parent-child relationship.[7] When Jewish parents build their family through adoption, therefore, it is a Jewish family they are building, a family in which the parents teach Torah and bequeath their Jewish heritage and identity to their children. Jewish identity, as we have written on numerous occasions, is religiously exclusive. There is no such thing as a “half-Jew,” a person who is simultaneously Jewish and a communicant of another religion; one is either a Jew or a non-Jew.[8] This affirmation is basic to our understanding of Jewish identity and of the task assigned by tradition to all Jewish families, however those families are created. Its implication for our she’elah is clear: Jewish parents who seek to teach their adopted child about the child’s native culture must do so in a way that does not compromise the child’s perception of Judaism as his or her exclusive religious identity. To put this in the language of the preceding paragraph, the “best interests” of a Jewish child require that he or she be raised as a Jew.

How do parents negotiate these conflicting demands? The idea that Judaism is the child’s exclusive religious identity implies, at the very least, that the child should not take part in any of the overtly religious ceremonies and rituals of his or her native culture.[9] This standard, we acknowledge, is somewhat vague, perhaps unavoidably so. Religious elements are woven tightly into the fabric of everyday life in many cultures, so that it is may be impossible to distinguish with absolute clarity their “religious” from their “non-religious” aspects. Indeed, Jewish culture is a prime example of this phenomenon. Still, we can say that “overtly religious” ceremonies include worship services or rituals in which deities other than the God of Israel are invoked, as well as rituals that express theological commitments incompatible with Judaism. The child may learn about these aspects of the native culture but should not participate in them.[10] In addition, the Jewish commitments of the Jewish household take precedence over conflicting claims. For example, the family’s observance of Shabbat or holidays should not be altered to accommodate events relating to the child’s native culture. Similarly, if the family observes kashrut, they are under no obligation to allow their child to eat non-kosher foods associated with his or her native culture. Following these guidelines, we think, will allow the child to develop a deep and keep appreciation of the native culture while establishing a firm and sure identity as a member of the Jewish people.

NOTES

Teshuvot for the Nineties (TFN), 201-207. As with all our responsa, this one is available online at ccarnet.org/resp.
These are the mitzvot haben `al ha=av; see Kiddushin 1:7 and BT Kidushin 29a.
For example, a child should live with his or her mother (in the event the parents do not live together) until the age of six. Upon reaching that age, boys generally live with their fathers, since it is the father=s duty to teach Torah to his son, while girls remain with their mother, who bears the responsibility of training her daughter in the ways of Jewish womanhood. See BT Ketubot 65b, 102b and 103a; Yad, Ishut 21:17-18; Shulchan Arukh EHE 82:7.
Isserles, EHE 82:7; R. David ibn Zimra (16^th-century Egypt), Responsa 1:123; R. Shmuel di Medina (16^th-cent. Salonika; Maharashdam, EHE, no. 123). This rule guides the jurisprudence of the Israeli rabbinical courts on matters of child custody; see Piskey Din Rabaniyim 1, p. 61 and p. 157.
Madelyn Fruendlich, Adoption and Ethics, Volume One: The Role of Race, Culture, and National Origin in Adoption (Washington, DC: The Child Welfare League of America, 2000), p. 123. Fruendlich offers a useful, wide-ranging survey of the research in the field.
The following statement by D.S. Kim is representative: AIt is necessary for the child to be aware of personal heritage to develop his full potential or to define his place in society. Therefore, while avoiding ethnocentricity or reverse racism, foreign children can and should be instilled with a positive ethnic identity”; “Issues in Transracial and Transcultural Adoption,” Social Casework 5 (1978), 477-486, at 485. See also R. Rios-Kohn, “Intercountry Adoption: An International Perspective on the Practice and Standards,” Adoption Quarterly 1:4 (1998), 3-32, at 4: adoptive families ought to pay “due regard…to the child=s ethnic, religious, cultural, and linguistic background.”
See TFN, p. 206, at the end of the responsum’s text: “children are obligated to show their adoptive parents all the deference and honor expected of Jewish children, for indeed, these have become their parents in every respect.”
See TFN, no. 5754.3, pp. 263-264; New American Reform Responsa (NARR), no. 88, pp. 138-139, and no. 109, pp. 173-174; Contemporary American Reform Responsa (CARR), no. 61, pp. 98-99. That Judaism must be a child’s exclusive religious identity lies at the heart of the CCAR’s resolution on patrilineal descent: a child brought up in a mixed-married household must be raised exclusively as a Jew in order to qualify as a Jew under the terms of the resolution. See TFN, no. 5755.17, pp. 251-258.
See also CARR, no. 51, pp. 97-88.
To use an example from a Western setting, a Jew seeking to learn about the culture of Italy would do well to witness church masses, since Roman Catholicism is such a significant element in the life and traditions of the Italian people. The Jew, however, would not worship at the mass or engage in any of the ritual behaviors particular to Catholic worship.

CARR 61

CCAR RESPONSA

Contemporary American Reform Responsa

37. Adoption and Mixed

Marriage

QUESTION: What is the status of a child whose natural parents

are both Gentiles, who is adopted by a couple where one partner (in this case the husband) is Jewish and the other is not? (Rabbi R. Block, Riverside, CT)

ANSWER: This child

should be treated as any other adopted child, in other words named in the synagogue, with a berit for a male, and if the family desires, tevilah. All this should be done in accordance with the responsum, “Adoption and Adopted Children,” (W. Jacob, American Reform Responsa, #63). As this child has been brought into a mixed marriage, we should be especially careful about her education. The ritual acts at the beginning of life (berit, tevilah, naming) are a prelude to the education of the youngster. In other words, the conversion conducted at the time of infancy would designate this youngster as Jewish and her future education would confirm that Jewishness.

April 1984

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 203-207

CCAR RESPONSA

American Reform Responsa

63. Adoption and Adopted Children

(1978)

QUESTION: What is the status of adoption and adopted children in Judaism? What steps are necessary for a conversion if such children are Gentile? If the children are converted, should they bear the name ben Avraham or bat Sarah? Should there be a special ritual for adoptions either for the naming of such children or for bringing these children into the covenant of Judaism? (Rabbi Michael M. Remson, Family Life Committee)

ANSWER: There is nothing in the legal section of the Talmud about adoption, although the Talmud does present agadot which discuss the status of Moses’s relationship to Pharaoh’s daughter and Naomi’s to her grandchild (Talmud, Meg. 13a and San. l9b). These discussions led to the statement, “Whoever rears an orphan in his house is considered as if he had begotten that child.” In addition, on the same page we find the statement, “He who teaches his neighbor’s son Torah, is as if he had begotten him.” Exodus Rabba 45 interpreted the verse of Isaiah 64:8, “You, O God, are our Father,” as meaning that “Anyone who raised a child is called father, not the one who has begotten it.” These are not halachic statements, but they indicate a climate of opinion which definitely favored adoption.

The problem with adoption is knowing the biological background of the adoptive child. If there is conclusive evidence that the child was the offspring of parents who could, under Jewish marriage law, have contracted a lawful marriage, then the child is deemed Jewish and there is no bar to adoption or any later participation in Jewish life, except that the child could not share in the traditional privileges of the Aaronite priesthood. Further, if the child is the child of a Jewish mother and a non-Jewish father, no bar to the adoption in terms of Jewish status of the child obtains. Even if the child were a foundling (an extremely rare situation today as far as Jewish infants are concerned) and the circumstances of the discovery point to a desire on the part of the natural parent(s) to insure that the baby would be found and taken in by a family to be raised, the Jewish presumption is that such a child may rightfully be considered Jewish.

Situations of doubt have always been rare, as Jewish law did everything possible to avoid them. For example, in the case of an unmarried Jewish mother, her statement about paternity was accepted; if she could not establish paternity, then the child was presumed kosher (Mishna, Kid. 4.2; Talmud, Kid. 73a; Yad, Hil. Isurei Bi-a 15.30, 31; Shulchan Aruch, Even Ha-ezer 4.30, 32). The sources make a distinction between two categories of children of whom nothing was known: Shetuki–children about whose paternity the mother was unwilling to say anything, and Asufi–foundlings with nothing known about mother or father. Some doubt was expressed about the acceptability of foundlings as suspicion of Mamzerut (a child born of an adulterous or incestuous relationship) existed, but the Talmud (Kid. 73a) surrounded this category with so many hedges that it virtually ceased to exist. In other words, most children would fall into the former category.

A considerable amount of modern discussion of these matters has been undertaken by Ezekiel Landau (Noda BiYehuda, vol. I, Even Ha-ezer #7), and Benjamin Weiss (Even Yekara 2.5). Both of these individuals discussed whether children with an unmarried Jewish mother and with doubtful paternity could be accepted. They concluded that the children were welcome even if the father was not Jewish. We can see from both ancient and more recent authorities that the main obstacle standing in the way of possible objection of Jewish children was successfully removed. Once they had entered the household, they were to be considered completely like children of the house and in no way different from natural children. This is in accordance with the Agadic statement previously mentioned, and which was re-emphasized by Meir of Rothenburg in Responsum #242, in which he dealt with a question about a note (Shetar) and an adopted orphan raised in the household. The orphan was considered legally part of the household. This thought was then embodied in the Jewish legal tradition (Isserles to Shulchan Aruch, Choshen Mishpat 42.15). It is reasonable today to rely on reputable adoption agents or agencies that should be in a position to provide information on the adoptive child’s origin, not necessarily with specific names, etc., but with an accurate statement on the background of the anonymous (to the adoptive parents) natural parents.

If a child beyond the age of infancy is adopted– as, for instance, in the case of a stepfather adopting the child of his wife, where the child was born to the wife’s first marriage–there is no problem whatsoever in clarifying the child’s origins. If a couple adopts an older child who may remember a mother or a father, there is an obligation on the part of the adoptive parents to find out the child’s origins in order to be forewarned of any possible problem in the child’s future full participation in Jewish life, particularly in the area of marriage. All adopted children should be told at an appropriate time that they have been adopted.

Lastly, a child who is definitely non-Jewish may, indeed, be adopted and converted. There is no question at all about the acceptability of non-Jewish children as candidates for adoption. Their background does not matter; even people once prohibited entry into the family of Israel, such as the Ammonites, Moabites, etc. (Deut. 23:4), were no longer forbidden by Mishnaic times (Tosefta, Kid. 5.9; Yad, Isurei Bi-a 12.25). In all such cases, we must deal with the process of conversion to Judaism (Mishna, Ket. 4.3; Ket. iia). It should be pointed out that such conversion, while full and complete ritually and legally, obligates the adoptive parents to provide Jewish training, etc., for the child. When the child reaches the age of Bar/Bat Mitzvah, there is a traditional mechanism by which the converted child could reject Judaism without prejudice (Sh.A., Yoreh De-a 268.7). In earlier days, a formal process of rejection was required because of the rigidity of Jewish-Gentile relationships. Nowadays, no such rejection mechanism is necessary, because belonging to the Jewish people and faith are essentially voluntary. It is important, however, that the adopted child be informed at an opportune time that he/she was adopted. In other words, the Jewishness of the child matures along with the child himself. Theoretically, the child could reject Judaism upon becoming an adult, but that matter is moot for us, and the conversion matures along with the child and becomes irrevocable. This places a special duty upon adoptive parents to see to it that an adopted child receives an adequate Jewish education so that the child’s sense of being Jewish would not ever come into question.

It is clear that nothing formal should be done in this regard until permanent jurisdiction over the child has been obtained. This is proper from two points of view; first of all, it would be morally wrong, and probably illegal, to convert a child to Judaism as long as the possibility of having to return it to its non-Jewish parents remains; if that should occur, the child would be raised as a non-Jew. Secondly, it avoids the problem of public embarrassment if a child so placed has to be returned to its natural parent(s). Although this situation rarely arises, it does occur and that painful experience should not be aggravated.

When such a child has been legally adopted, then he or she should be named in the synagogue. The name to be provided would be ben- or bat-, and then the name of the adopting parents. Thenceforth, those parents are fully his/her parents and that should be indicated through the name. This should be stressed rather than the fact of conversion. The designations ben Avraham or bat Sarah were created for the purpose of providing a full name to individuals whose parents remained non-Jews. They also helped the convert, as this was a constant reminder of conversion to Judaism from another religion. In our case, both adoptive parents are Jewish and the child has never known any other religion, so it needs no reminder nor a special parental name (Moshe Feinstein, Igerot Mosheh, Yoreh De-a 161). Linking the Hebrew name of the child with his/her parents will provide an additional firm bond between them, which may be of special significance during the teenage years when this child will become Bar or Bat Mitzvah and question his or her real origin.

The naming of such a child should occur in the same manner as with any other child. This procedure should also be followed if the adopted child is older and may be capable of understanding the process. In most Reform congregations this would be considered sufficient ritual conversion for girls and also for a large number of boys. This act, along with Jewish education, would bring the child into the covenant of Judaism in the same manner as any natural child.

In the case of boys who are not circumcised, there should be a circumcision done precisely in the same manner and with the same ritual as a circumcision for natural children. It would, of course, usually occur at a more advanced age. If a child was already circumcised, some parents may want to undertake tipat dam, but that remains optional. In addition, some more traditional parents may also want to have the adopted boy or girl undergo Tevila. It is quite clear from tradition that if such a child at any later time undergoes Tevila, even though not specifically for the purpose of conversion, it would be considered the same as if he had undergone it for that purpose (Shulchan Aruch, Yoreh De-a, 268.3). The Talmud debated the need for both circumcision and ritual bath. R. Eliezer (Talmud, Yev. 46a) indicated that a proselyte who was circumcised and did not take the ritual bath, was considered fully Jewish. The decision went against him. Both orthodox and Conservative rabbis in our day require it. A good case for having Tevila optional can be made. Tevila should, therefore, be considered optional, as it is with adult converts nowadays. In some cities Tevila has become frequent; in many other cities it is not practiced at all.

Finally, let us turn to the possibility of a new ritual for adoption. When an adopted child enters the family, the parents will probably feel quite at ease with that child and will, from the beginning, be able to treat it as if it were a natural child. Such an attitude will develop only slowly among grandparents and other relatives, who must be shown that this child is to be considered the complete equal of a natural child. For this reason, all procedures should follow the pattern taken with natural children. This will help the acceptance of such adopted children. For this reason, we would not favor adding any new ritual for adopted children. They should be treated like any other child in every way, be brought up into the covenant, and raised as Jewish children.
Walter Jacob, Chairman

Stephen M. Passamaneck

W. Gunther Plaut

Harry A. Roth

Rav A. Soloff

Bernard Zlotowitz

See also:

S.B. Freehof, “Baptism of Child Before Adoption by Jewish Couple,” Recent Reform Responsa, pp . 97ff; “Adoption of Children of Mixed Race,” Current Reform Responsa, pp. 196ff; “Adoption by Cohanim,” Contemporary Reform Responsa, pp.

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5753.12 201-207

CCAR RESPONSA

Kaddish for Adoptive and Biological Parents

5753.12

She’elahA child was adopted in infancy by Jewish parents, converted and raised as a Jew. Subsequently, the child discovered that

his or her biological parents were Jews. Does the child have kaddish and yahrzeit obligations toward

the biological parents? If so, is this obligation in addition to or in place of any similar obligation to the adoptive parents?

(Rabbi Daniel K. Gottlieb, Concord, Ontario)

TeshuvahThis Committee has dealt previously with the issue of adoption.¹ The case before us differs, however, in

that it raises the crucial, often explosive emotional issue which every adopted child must confront: which set of parents,

the biological or the adoptive, are the “real” parents? To put the question in Jewish terms: to whom does this child owe the

primary responsibility indicated by the commandment to “honor your father and your mother”? Sooner or later, say many

experts in the field, every adopte child must somehow come to terms with this question, and a great deal is at stake in how

he or she answers it. Accordingly, the psychological literature on adoption deals extensively with the subject. In this

teshuvah, we want to examine the issue from the standpoint of Jewish religious tradition, a tradition we seek to

understand and interpret as best we can from a contemporary liberal perspective.

Halakhic Precedents. Had this child been born a Gentile, tradition would surely have regarded the adoptive

parents as his or her only parents. The conversion would have severed the legal tie with the biological

parents.² In this instance, though, the child was born to Jewish parents, and this fact matters greatly: he or

she has inherited Jewish status from the biological mother and father.³ Jewish law, moreover, regards the

legal connection between Jewish parents and their biological offspring as a permanent one.

The concept of “adoption”, through which a parent-child bond is created through legal means and thereby replaces the

bond linking the child to his or her biological parents, is not to be found in the Talmudic sources. The “adoptive” parent is

always referred to as a legal guardian (apotropos) who raises (megadel) the child; that person is never

called “father” or “mother”. The biological parent, meanwhile, never ceases to be the parent. A number of commentators

in fact hold that a child is obligated to fulfill the commandment to “honor your father and your mother” for the biological

parents even if they did not care for the child during his or her lifetime. The essence of parenthood, in this view, lies in the

procreation of the child, a fact which even the severest kind of parental neglect cannot erase.⁴

This theory leads to some important halakhic consequences. A contemporary authority rules that “an adopted child…is

obligated to honor (his biological parents) during their lifetime and upon their death, and to observe the laws of mourning

and kaddish as any other child, even though he had no contact with those parents throughout his

life.”⁵ The child’s obligations toward the adoptive parents, by contrast, are not so strict. R. Gedaliah

Felder, in an authoritative treatise on the halakhot of conversion,⁶ declares flatly that a person is

not required to “honor” his or her adoptive parents. He hedges this conclusion somewhat with the remark that, as a matter

of courtesy and good manners, one ought to show respect to those who have raised and cared for one; thus, the adoptee

ought to say kaddish for his parents, unless this should somehow violate the prerogative of the parent’s biological

children.⁷ Similarly, R. Ovadiah Yosef rules that a person need not observe the rites of mourning

(avelut) for the adoptive parent, nor should he say kaddish for that parent unless there are no biological

children who can fulfill the requirement.⁸ In short, one may mourn one’s adoptive parents; one

must mourn one’s biological parents. In this line of reasoning, the connection between Jewish parents and their

biological offspring is permanent and “real”, while that forged by adoption is both artificial and less halakhically

compelling.

Differing Trends. There is, however, another discernible trend in Jewish legal thought, a trend composed of a

number of rules, principles, decisions and customs which point in the opposite direction and portray the family

relationship created by adoption as no less “real” than the biological one. These are as follows:

1. The applicability of the commandment to honor one’s parents to all biological parent-child relationships is not

necessarily absolute. A Talmudic dictum holds that a parent may legitimately renounce the kavod (honor) owed

him by a child.⁹ There is no more obvious case of a “waiver of rights” than a parent who has placed a

child for adoption. This is not to imply that the parent’s decision is cavalier, arbitrary, or thoughtless; indeed, in many

circumstances that choice is a painful one which the parent nonetheless recognizes as the most responsible option

available. But when a biological parent agrees to allow others to raise a child as their own and to forego all the personal

and financial obligations of parenthood, it is reasonable to conclude that the parent agrees to forego “honor” as well.

2. How can parents waive this “honor” when children are required to render it to the ones who bring them into the world?

The answer is suggested by the author of the Sefer Ha-Chinukh (mitzvah # 33), who describes the

commandment to honor one’s parents differently than do the authorities cited above. Its purpose, he writes, is to recognize

and show compassion to those who have done kindness for us during our formative years; it teaches us to be grateful for

the goodness we have received from them. He does, it is true, add that the commandment also serves as a reminder that

one’s father and mother are the reason for one’s physical existence. Yet by equating these two purposes, he acknowledges

that the essence of parenthood lies at least as much in the care, the love, and the teaching which the parent

bestows upon the child as it does in the fact of procreation. It follows that the duty to honor our parents defines our

relationship toward those who have shouldered these obligations at least as much as it does that toward those

who supplied the genetic material from which we were conceived. Adoptive parents, that is, are one’s “real” parents, as

real as the biological ones.

3. The halakhah often treats the adoptive relationship precisely as it does the biological one. R. Benzion Ouziel

rules that parents are required to provide food, housing, and education for their adoptive children in the same measure as

for their biological offspring. This obligation also extends to the emotional side of family life: the rabbinic court is

empowered to intervene on behalf of the adoptive children should they be treated unfairly in any way by other members of

the household.¹⁰ R. Moshe Feinstein declares that an adopted child may be named “the son/daughter

(ben/bat) of the adoptive parent” rather than of the Jewish biological parent or of “our ancestor Abraham” in the

event the child was born to a Gentile mother and subsequently converted.¹¹ He apparently relies upon a

responsum of R. Meir of Rothenburg,¹² who holds that a person may, in a legal document, legitimately

refer to the child he has raised in his home as “my child.” Some authorities limit this ruling, arguing that a father may call

an adoptee “my child” only when he has no other biological children; if other children exist, the document is

invalid.¹³ This has been explained as an attempt to avoid confusion and contention in matters of

inheritance. We presume that a father would rather bequeathe his property to his child than, say, his wife’s child

from a former marriage; a document which equates the two children is thus presumed a forgery.¹⁴

Halakhists are in doubt as to how the law is decided,¹⁵ but in our case the presumption clearly does not

hold.

Adoptive parents agree under civil law to treat the child in matters of property and inheritance as though he or she were

their biological offspring. This agreement is valid under Jewish law as a gift made “in contemplation of death”

(matanat shekhiv mera) by which property is distributed so as to avoid the division demanded by the inheritance

laws.¹⁶ It is also binding under the doctrine “the law of the land is the law” (dina demalkhuta

dina), by which monetary obligations entered into under civil law are enforceable at Jewish law as well. Since the

parents are thus obligated to their adoptive child, the objection to R. Meir’s ruling is moot. A parent may refer to an

adoptive child as “my child” in all respects, legal as well as emotional.

We should also refer to the issue of yichud. Individuals are ordinarily forbidden to be alone together with

members of the opposite sex other than their spouses. Parents are exempt from this prohibition on the theory that family

ties suppress any sexual inclinations they might have toward their children and other blood relations.¹⁷

Some authorities hold that this applies only to biological children; thus, it is only with great difficulty that R. Eliezer

Yehudah Waldenberg permits parents to be alone with children adopted in infancy.¹⁸ R. Chaim David

Halevy, however, takes the opposite view. Parents may be alone with and display normal physical affection to their

adoptive children, for their relationship to them is exactly the same as their relationship toward biological children. The

adoptees have become “like real children (kevanim mamash) in every respect.”¹⁹

The matter of yichud illustrates an important development of halakhic thought. As we have seen, Jewish

tradition offers two contradictory approaches concerning the relationship between parents and their adopted children. The

one defines the status of adoptees as somehow less “real” than that of biological offspring; the other regards adoptees as

the “real” children of their adoptive parents. Some halakhists have come to assume the second approach, at least with

respect to certain issues, not because they regard the first approach as “wrong” but rather because it is irrelevant to

contemporary social reality. They understand, that is, that the traditional distinctions between biological and adopted

children are derived from sources which do not know of our present-day institution of adoption. When those sources speak

of non-biological parenthood, they refer to situations analagous to those of step-parents or foster parents, guardians who

cannot say with legal accuracy that “this is my child.” They do not describe the case of adoption in which, as R.

Halevy notes, the emotional differences between biological and non-biological children virtually disappear. Adoption,

some authorities have come to understand, creates a “real” family relationship, characterized by the same feelings and

emotions that pertain to the bond between biological parent and child. It therefore makes no sense to think about adoption

as though it were the same institution as its Talmudic antecedents.²⁰

Liberal Considerations. We agree, and we would go farther. We propose to apply this insight to all issues. We

believe it is time that Jewish law erase all invidious distinctions between biological and adopted children. We do so not

only because we regard adoption as a new phenomenon, different from legal guardianship, but because of our sense of

what Jewish parenthood is truly about.

Parenthood is about family, and adoption creates family just as surely as does biology. We hold with the Talmudic

sentiment that “one who raises an orphan in his home is regarded by Scripture as though he has given birth to that child”

(BT. Sanhedrin 19b). We believe that those rules, principles, and customs within the tradition which portray

adoptive families as “real” families are motivated by the same sentiment. And, most importantly, we agree with the

Sefer Hachinukh that the essence of parenthood does not and cannot consist of the act of procreation. 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 are the real

parents of these children. They are no less entitled to “honor” than the biological parents. Our best understanding of

Jewish law and religious values demands that this simple fact be accorded full and complete recognition.

We do not hold thereby that adoption renders biology irrelevant. Indeed, the individual in our case is a Jew because the

biological parents were Jewish. Had they been Gentiles, a conversion would have been necessary to create a Jewish family

relationship between adoptive parents and child. Yet our case deals not with lineage but with parenthood. And though the

child does not owe his or her Jewish status to the adoptive parents, they are no less entitled to love, honor, and filial

devotion.

In this case, the individual may choose say to kaddish and observe yahrzeit for the biological parents. This may

be quite helpful on psychological grounds as a means for helping this person come to terms with his or her past. At the

same time, however, he or she must observe all the customs of mourning for the adoptive parents. Children are

obligated to show their adoptive parents all the deference and honor expected of Jewish children, for indeed, these have

become their parents in every respect.

Notes

See American Reform Responsa, # 62-63, pp. 199-208.

“A proselyte is like a newborn”; BT. Yevamot 22a and

parallels.

M. Kiddushin 3:12; Yad, Hilkhot Issurey Bi’ah 19:15; SA, EH

8:1 ff.

See both the Meshekh Chokhmah and the Ketav Sofer to

Deuteronomy 5:16.

R. Yonah Metzger, Resp. Miyam Hahalakhah, v. 2, # 18.

Nachalat Zvi, p 37. R. Felder cites approvingly the Talmudic

story (BT. Sotah 49a) of R. Acha bar Ya`akov, who raised his

daughter’s son. When the latter had grown, R. Acha said to him,

“bring me some water”. The young man replied, “I am not your son”

(Rashi: I am not required to honor you as a son honors his father).

See also R. Yehudah Greenwald, Kol Bo `al Avelut, p. 375, who

writes that the adoptee’s obligation of “honor” toward the adoptive

parents is not equivalent to that owed to the biological parents.

Yalkut Yosef, v. 6, p. 100. See also R. Aaron Felder, Yesodei

Smochos, p. 74.

BT. Kiddushin 32a; Yad, Hilkhot Mamrim 6:8; SA Yore De`ah

240:19.

Sha`arey Ouziel, v. 2, pp. 184-185.

Resp. Igerot Moshe, YD, # 161.

The responsum is found in the collection entitled Teshuvot

Maimoniot printed at the conclusion of Yad, Sefer Hamishpatim; it

is # 48 in that collection. See also Isserles, CM 42:15.

R. Chayim Benveniste, Kenesset Ha-Gedolah, CM 42:15.

R. Moshe Sofer, Resp. Chatam Sofer, EH, v. 1, # 76.

See R. Eliezer Y. Waldenberg, Resp. Tzitz Eliezer, v. 4, #

22.

See Yad, Hilkhot Zekhiah Umatanah, ch. 9.

See Rashi, BT. Kiddushin 81b, s.v. ve-dar. This theory is, of

course, a presumption, valid in most (but, tragically, not in all)

families.

Resp. Tzitz Eliezer, v. 6, # 40, ch. 21.

Resp. `Aseh Lekha Rav, v. 3, # 39. See also R. Nachum Eliezer

Rabinowitz, cited in Techumin, v. 10, 1989, p. 317, # 19.

R. Halevy (see note 19, above) significantly points to

contemporary practice (“go out and see what the people are doing”;

cf. BT. Berakhot 45a) to justify his decision: since adoptive

parents treat their children as though they were biological

offspring, there is no reason to enforce upon them an halakhic

distinction which has now become artificial. A popular discussion

of this subject may be found in Dennis Prager, “Blood vs. Love,”

Ultimate Issues 11:2 (1995).

If needed, please consult Abbreviations used in CCAR Responsa.