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5780.3

5780.3

B’rit Milah During COVID-19 Pandemic

 

Note: This responsa deals with the ritual aspects of b’rit milah. A doctor should always be consulted in regard to the medical aspects of b’rit milah.

Question
What should be the proper procedure regarding b’rit milah during the COVID-19 pandemic?
(submitted by Rabbi Julie Pelc Adler, Director, Brit Milah Program of Reform Judaism)

Response
In the midst of the current pandemic, it is understandable that parents and mohalim/ot are confused and frightened.  We will examine the issues here carefully, one by one.

1. The importance of b’rit milah

In emphasizing the importance of b’rit milah the Talmud equates it to all the other mitzvot and, indeed, credits it with preserving the very existence of the world.[1]  In Christian lands it was an unmistakable, permanent marker of Jewishness; in Muslim lands, it marked Jewish male children.  Its complex psychological significance in a classically male-centered Jewish spirituality cannot be overstated.[2]  It is true that the first generations of Reformers were deeply ambivalent about it; Kaufmann Kohler, for example, called it “a barbarous cruelty,” and recommended its abolition.[3]  It is quite likely that most Reform Jews would have ceased to practice circumcision had it not been for the view that gained currency in the early 20th century, that circumcision conveyed hygienic and health benefits.[4]  Before World War II, lengthy post-partum hospital stays for middle- and upper-class women and their infants made it easy to arrange a hospital circumcision, with or without ritual. In the postwar era, however, shortened hospital stays led to numerous inquiries about the acceptability of circumcision before the eighth day, or the reality of Jews simply ignoring b’rit milah in favor of medical circumcision. While Responsa Committee chair Israel Bettan authored a strenuous objection to that widespread practice in 1954,[5] Solomon Freehof was far more accommodating in 1960.[6]  All Reform responsa since then, however, have followed R. Bettan in insisting on the importance of milah on the eighth day as a religious rite.[7]  As a movement we have encouraged Reform Jews to choose b’rit milah on the eighth day, and have facilitated this by training Reform mohalim/ot.

2. Circumstances for delaying b’rit milah

We are forbidden to endanger ourselves. As Maimonides writes: “The Sages prohibited many things because they are life-threatening.  And anyone who ignores their words, and says, ‘I can go ahead and endanger myself; what business is it of anyone else what I do to myself?’ or ‘I pay no attention to that’ – they are to flog him for rebelliousness.”[8]  We are obligated to preserve ourselves from danger (and, as parents, we are responsible for preserving our children from danger). There is, therefore, unanimous agreement among all halakhic authorities that we delay b’rit milah if the infant is not healthy enough to undergo it.[9]
By contrast, there is far less consideration of whether b’rit milah might risk the well-being of an otherwise healthy infant.[10]  However, there is a faint thread running through the halakha that is worth examining in detail.  It begins with this Talmudic passage:

Rav Pappa said:  Therefore, on a cloudy day or on a day when a south wind is blowing, we do not circumcise [an infant], nor do we draw blood.  But nowadays, when people are accustomed to ignore [these strictures, we rely on the assurance that] Adonai preserves the simple (Ps. 116:6) [and we proceed on the assumption that no harm will follow].[11]

This statement was never codified in the later halakha, but the Nimukei Yosef cites it approvingly:

The Ritba wrote in the name of his teacher [with reference to this passage]:  From here we learn that whoever does not wish to circumcise on a cloudy day has permission to do so, and is acting with clear justification in not relying on Adonai preserves the simple.  And similarly it is appropriate not to circumcise on Shabbat if it is cloudy.[12]

The discussion of this issue by the Arukh Ha-Shulḥan makes abundantly clear that the underlying concern is whether conditions are such that performing the rite could endanger the infant:

…But Rabbenu Yeruham wrote that neither a cloudy day nor a south wind delays the b’rit milah, because Adonai preserves the simple. However, the strain of a journey—meaning that the infant is ill from the strain of having made a journey, does postpone the b’rit, until he is well. Another authority wrote that anything other than some illness in the infant himself—such as having to go on a journey—does not delay the b’rit, just as we do not delay it for the sake of blowing winds.

Obviously, we do not delay the b’rit for the purpose of going on a journey, but rather we carry it out.  But it seems to me that it is obviously forbidden to take the infant on a long journey until he has recovered from the circumcision, lest he be endangered. However, it may be permissible to take him in a wagon, since in that case he is placed in one spot and appropriately covered with blankets and pillows. Also, one can see, when they have brought him on a journey by wagon, whether any weakness appears in him. This requires examination by experts in the body and face of the infant.  Indeed, we have never heard what the Nimukei Yosef wrote, that on cloudy days it is permitted to delay the b’rit. In fact, it is because Adonai preserves the simple that we are lenient on optional matters such as drawing blood on the eve of Shabbat…and thus all the more so with regard to an important commandment such as circumcision. And the proof of this is that not a single one of the authorities saw fit to mention this. So we learn that we do not use its guidance in fulfilling our obligation. Thus has the custom spread, and there is no changing it.[13]

It is quite obvious that the original authority, Rav Pappa, was expressing a genuine medical concern, based on his best knowledge. As subsequent generations’ medical knowledge changed, however, they dismissed these concerns as nonsense—but did not replace them with their own medical concerns. This may reflect the tacit trend toward stringency evident in the halakha over time, as seen in other practices such as the discontinuation of hafka’at kiddushinas a way of preventing agunot, or the Ashkenazic invention of “glatt kosher.”
Fortunately, we are under no obligation to adhere to the codified halakha when a minority viewpoint has clear merit.  And as we have stated before, we rely on medical expertise:  “As rabbis, we are not competent to render judgments in scientific controversies. Still, we do not hesitate to adopt ‘the overwhelming view’ as our standard of guidance in this and all other issues where science is the determining factor.”[14]
It is clear to us that b’rit milah may be delayed when performing the rite would endanger an otherwise healthy infant.

3. Does performing b’rit milah at this time endanger the infant?

The reality in North America is that parents can take many steps to minimize the chances of infection, but under current circumstances it is virtually impossible to eliminate all possibility of infection. Asymptomatic individuals are not being tested; the incubation period can be lengthy; and the virus is extremely contagious.  In many areas, by the time the infant reaches his eighth day, it is already highly probable that he has already been exposed to someone who is carrying the virus, unless he was born at home under conditions of strict isolation, and the medical practitioner(s) who delivered the baby were known to have tested negative for the virus. In other areas, it appears that this will be the case before too long.
As of this writing, there is not enough science available to stand as definitive research on COVID-19 in infants. Anecdotal evidence continues to mount, however, indicating that infants do not appear to be seriously affected. Infant deaths from the virus are so rare that individual cases are being reported as news.  It appears that in each case there were underlying health complications.[15]  It seems counterintuitive, and understandably goes against parents’ instinctive reactions, but so far the evidence is that babies, including newborns, are far less susceptible to COVID-19 than are older adults, unless the infants have some other health problem. It appears that the adults who would be present at a b’rit milah could be at greater risk than the infant himself.
Furthermore, there is no guarantee that this virus will disappear soon. Experts are saying that it will continue to circulate until there is a vaccine to treat it, with some saying that we will, therefore, require social distancing for 12-18 months.[16]  After that much time has elapsed, circumcision will be much more difficult and will carry its own set of risks.
Medical literature regards “newborn” circumcision as routine, requiring only local anesthesia, up to about age six weeks.[17]  Beyond six weeks, or when the baby grows larger than twelve pounds, it may be advisable to wait until he is six months old and perform the procedure under general anesthesia. There is a small indication that bleeding is a more likely complication for an older baby. Furthermore, as the baby ages, the foreskin is thicker and less pliable, so it is more difficult from a technical point of view to perform the circumcision using the more traditional Mogen clamp.
It would appear, then, that there is no absolute guarantee of safety for the infant; but he is no more at risk in a b’rit milah performed on the eighth day, even during the pandemic, than he will be at any time in his first year of life. That assumes, of course, that the b’rit milah is carried out in a way that does not add needless risk. It should be in the home, and there should be no one present other than the parents and the mohel/et. All standard procedures to minimize transmission should be followed, including wearing masks and gloves. It would be advisable to reduce danger to the parents by not having the rite performed by a mohel/et who has been working in a hospital or clinic where COVID-19 patients are being treated.
Some parents will, doubtless, consider a medical circumcision immediately after birth, followed by hatafat dam b’rit at home. We would point out that the most significant risk factor for the virus is the number of people to whom one is exposed at close range. A hospital procedure will bring the infant into contact with at least as many adults as will a b’rit milah performed at home.

Conclusions

  1. B’rit milah on the eighth day is a mitzvah that we as Reform Jews take extremely seriously.
  2. We take seriously the obligation of sh’mirat ha-guf, preserving our well-being, and we therefore recognize danger to an otherwise healthy infant as a valid reason for postponing a b’rit milah.
  3. In keeping with our commitment to taking into account the best scientific and medical advice, given what we know about COVID-19, its transmission, and the danger it poses to infants, we do not find that performing the b’rit milah on the eighth day, with appropriate precautions, poses a more significant risk to the infant than delaying it until the pandemic has passed.

As we wrote recently, the COVID-19 pandemic constitutes a genuine emergency situation (sha’at had’ḥak).  “In an emergency situation a bet din is responsible for taking action for the welfare of the community, and may issue a temporary ruling (hora’at sha’ah) to prevent the kahal from going astray.”[18]  People can “go astray” in all sorts of ways, including by allowing self-preservation and concern for our families to turn into irrational fear and panic. We pray that this pandemic will pass, and that as many lives as possible will be spared, and that people’s livelihoods will not be destroyed; but in the meantime we will—we must—continue to live our lives.

Joan S. Friedman, chair
Howard L. Apothaker
Daniel Bogard
Carey Brown
Lawrence A. Englander
Lisa Grushcow
Audrey R. Korotkin
Rachel S. Mikva
Amy Scheinerman
Brian Stoller
David Z. Vaisberg
Jeremy Weisblatt
Dvora E. Weisberg

 

 

[1] Nedarim 32a.

[2] See Lawrence A. Hoffman, Covenant of Blood: Circumcision and Gender in Judaism (Chicago: University of Chicago Press, 1996), and Shaye J.D. Cohen, Why Aren’t Jewish Women Circumcised? Gender and Covenant in Judaism (Berkeley: University of California Press, 2005).

[3] “Authentic Report of the Proceedings of the Rabbinical Conference Held at Pittsburg, Nov. 16, 17, 18, 1885,” in Walter Jacob, ed., The Changing World of Reform Judaism:  The Pittsburgh Platform in Retrospect (Pittsburgh:  Rodef Shalom Congregation, 1985), 101.

[4] See David Gollaher, “From Ritual to Science: The Medical Transformation of Circumcision in America,” Journal of Social History vol. 28, no. 1 (Autumn 1994): 5-36.

[5] ARR #55, “Circumcision on a Day Other Than the Eighth Day of Birth.”

[6] RR #21, “Circumcision Before Eighth Day.”

[7] ARR #56, “Circumcision Prior to the Eighth Day” (1977); CARR #28, “Berit Milah” (1978); CARR #100, “The Pressured Mohel” (1988).

[8] Yad, H. Rotze’aḥ 11:5. See also Isserles’ gloss to ShA YD 116:5.

[9] Yad, H. Milah 1:16-17; ShA YD 262:2, 263:1.

[10] This question did arise in connection with metzitzah b’feh. The majority opinion is that metzitzah is a hygienic matter, not an integral element of the mitzvah, and therefore any technique that makes it safer is permitted. Isaac Klein, A Guide to Jewish Religious Practice (NY: Jewish Theological Seminary, 1979), 424.

[11] Yev. 72a.

[12] Nimukei Yosef, Yevamot 24a, s.v. ve-ha-id’na.

[13] Arukh Ha-Shulḥan YD 263:4-5.

[14] RR21, vol. 2, 5759.10, “Compulsory Immunization.”

[15] For example, see this news story: https://www.theguardian.com/world/2020/mar/29/coronavirus-illinois-governor-announces-rare-death-of-baby, accessed 10 April 2020.

[16] See, e.g., https://abcnews.go.com/Politics/federal-government-18-month-plan-life-return-normal/story?id=70046439, accessed 10 April 2020.

[17] For the research that provided the information in this paragraph I thank Dr. Bryan Hecht, M.D., Division Director of Reproductive Endocrinology, Obstetrics and Gynecology, MetroHealth, Cleveland, board certified in Obstetrics and Gynecology and Reproductive Endocrinology and Infertility, and a certified Reform mohel.

[18] Yad H. Mamrim 2:4, cited in 5780.2, “Virtual Minyan in Time of COVID-19 Emergency.”

RR 209-212

Custody of Children

Since according to Jewish divorce law the wife has an inferior status (namely, the husband can divorce her, she cannot divorce her husband), does he have the same advantage in deciding who shall have custody of the children? Or does the wife have definite rights in the matter? (From Rabbi Morris W. Graff, Miami, Florida)

The question implies that if it is an advantage to be given the children, the advantage would always be given to the husband; but that if it is a burden to have the responsibility of the children, then the burden might be put upon the wife, since in general the husband has superior status in matters of divorce.

However, the law does not consider the question of advantage or disadvantage to husband or wife, respectively, but considers primarily the interest of the child or children, and as the law develops, it approximates quite closely the American law—or at least the law of the Commonwealth of Pennsylvania, as it has been described to me by a learned lawyer.

In Jewish law, however, there is a different status as to custody for male and female children, but it really concerns the welfare of the children. The duty to study the Torah is incumbent upon male children, not on female children; and the duty to see that the male child studies the Torah is legally incumbent on the father, not on the mother. This difference between boys’ and girls’ duties and between the different duties owed to them expresses itself clearly in the law. Generally, young children belong with the mother. This is the implication of the Talmud in b. Ketuboth 65b, 102b. The law is clarified and codified in the Shulchan Aruch, Even Hoezer 82 : 7. A female child is always with her mother. A male child is also with his mother, but after he reaches the age of six, his father can demand him (to arrange for his instruction or to teach him himself, which is a primary form of the commandment). Maimonides (Yad, Hilchos, Ishus, chap. 21 : 17) gives the law in the same way. The father must support the child while the child lives with the mother up to the age of six. After the age of six, the father can say, “If the boy lives with me, I will support him; if he stays with the mother, I will not support him.” But the daughter stays with the mother even after the age of six. Abraham ben David (Rabad) says in his note that the father can demand the son before the son is six, because he has to teach him Torah at the age of four or five. But Joseph Caro (in “Bays Joseph”) says that this is not correct; that the systematic study begins after six, and the simple things that the child has to learn before that age, he can learn in the company of his mother.

However, all this depends upon whether the boy or girl can be raised decently by the mother. Moses Isserles (Cracow, sixteenth century), says in his note to the Shulchan Aruch that this decision that the daughter be with the mother depends upon whether the court feels that it is good for the daughter to be with her. If the court feels that it is better for the child to be with the father, the mother cannot insist upon having her. This is based upon a responsum of Meir, of Padua (sixteenth century, Italy; should be #53, not #93). Also, if the mother herself should die, the grandmother (the mother’s mother) does not have the right to insist that the children be with her. There is a note based upon a decision of David Ibn Zimri (Cairo, Egypt, sixteenth century) that when in the case that came before him the mother was immoral, the child was taken away from her and given to the father; if the father is dead, the child may be given to other relatives.

The law, in spite of the fact that it begins with a basic difference in status between male and female, nevertheless arrives at the same humane attitude held by the laws in Pennsylvania and, I assume, in most of the other states, that the custody of the children in case of divorce is determined by what is beneficial to the children, and the primary presumption is that they go with the mother.

As far as Reform Judaism is concerned, all the above has comparatively little bearing. In general, we accept the validity of civil divorce and therefore must accept the decision of the civil courts as to custody of the children, but we have certain religious preferences—as have also, undoubtedly, the Catholics—which may well influence the courts. First of all, if it is a mixed marriage and if the mother is Jewish, then the child is Jewish according to Jewish law, since in mixed marriages the child follows the religious status of the mother. We would therefore want the mother to have the child so as to raise it as a Jew. If, on the other hand, only the father is Jewish, the child is non-Jewish, according to Jewish law. In that case, the child’s religion is dependent upon his own choice, or, if too young, upon the choice of the parents and we have no preference as to custody.

Moreover, if both parents are Jewish, but one is likely to raise the child religiously and the other is indifferent, we would prefer that the child be given to the more religious parent. I am sure that in the latter case, since both parents are Jewish, the courts would follow our preference, if expressed.

RR 115-117

Children and Christian Services

A boy belonging to our congregation attends an Epis copal day school. He sings in the choir, each member of which is required to wear a cross. What is the atti tude of Jewish law to the Jewish boy participating in the choir-singing and wearing the cross? (From Rabbi William Braude, Providence, Rhode Island)

As for the cross itself, that does not necessarily involve too strict a violation. In the Shulchan Aruch (Yore Deah 141 : 1), Isserles says that such crosses as are bowed down to—for example, those at a church altar or at a wayside shrine—are forbidden (for a Jew to own or to handle) but “those that are hung on the neck as mementos are not technically ‘tzalem,’ an idol, and are permitted.” By the way, our small Shulchan Aruchs use the word “zuros” (images) but the Shulchan Aruchs not printed in Russia use what must have been Isserles’ original phrase, “shesi v’erev” (a cross). The commentators make it clear that if this cross is not directly adored in worship (i.e., if that particular cross is not bowed down to), it is not forbidden. This law is old, going back at least to Raviah in the Rhineland (twelfth century). Of course it means that a Jew may own such a cross and handle it and accept it as a pledge for a debt; it does not mean that he may wear it, although the law indicates at least that an ordinary cross worn but not worshiped is not too strictly forbidden.

However, the more important question here is whether a Jewish boy may participate in or help conduct an Episcopal service. The service is trinitarian. That does not mean that we do not consider the Episcopal service to be a true worship of God. The fact that they add “Son” and “Holy Ghost” to the name of God when they worship, does not make it for them, in the eyes of Jewish law, false or idolatrous worship. Christians are “children of Noah” and as such are not forbidden “shittuf,” the addition of other personages in their worship of God. This is clear, for example, from the famous Tosfos to b. Sanhedrin 63b, in which Rabbenu Tarn says: “Although they may take oaths by their other sacred personages, saints, et cetera, they are really taking their oath to God, and although they associate God’s name with others, the sons of Noah are not forbidden to do so.” So, too, it is codified in the Shulchan Aruch (Orah Hayyim 156, note of Isserles). For further reference, see Reform Jewish Practice, II, 37-38. But the Jewish boy in the Episcopal choir worships with Christians and reads Christian responses, et cetera. This is forbidden to him. Being a Jew, he is forbidden any “shittuf” and may not participate in any trinitarian worship.

RRR 91-93

Circumcision and Naming of Orphan

A father died before the circumcision of his boy. The question was asked: How should the child be named in Hebrew, as the son of his father or the son of his mother? Also, who takes the father’s part in the Brith Mila ceremony? (From Rabbi Nathan Kaber, Altoona, Pennsylvania)

Why should there be any question that the child is named as the son of his father rather than the son of his mother? All the rabbis in the Mishnah and the Talmud carry their father’s name, even though the fathers of many of them, for most of the time that they are quoted, have been dead. It is true that there must be a custom to name a child after his mother, as, for example, Samuel Edels, after a woman, Edel, or Moses Rivkes, or Joel Sirkes. But this was, perhaps, merely the popular identification of the child when the father had died early, and Moses Rivkes is also known as Moses ben Naftali, and Joel Sirkes as Joel ben Samuel Sirkes.

There was of course a custom, not necessarily widespread, to name a person in certain prayers after his mother. Especially in cases where a man was sick and they prayed for him in the synagogue, they would pray for him, let us say, as “Ya’akov ben Rifke.” The reason given for this special use of the mother’s name is the verse in Psalm 116: 16: “I am thy servant, the son of Thy handmaid.” The implication is that in case of special emergency prayer, the mother’s name is used. But nowhere do we find that a person’s father’s name is omitted from that of any legitimate child.

Now, how can the Brith Milah service be conducted, since the father has an indispensable role in it? The mohel, originally the father, circumcised the child himself, as the Talmud states in b. Pesachim lb top. The mohel is the father’s agent and, therefore, the father is to stand by bis side. When the mohel has circumcised and pronounced the blessing, the father is required to pronounce the bless-ing to enter him into the covenant, and so forth. With the father having such an indispensable role, how can the ceremony be conducted if he is not present, or dead?

There is an analogy in the case of the redemption of the first-born, which takes place on the thirtieth day (see Yore Deah 305 : 10). While Isserles says that if the father is dead or absent the child cannot be redeemed, the bulk of the authorities agree with Sabbetai Cohen (the Schach) that if the father is dead, the court has the right to redeem the child and, in fact, the duty to do so. The same is the case with circumcision. The court has the duty, in case the father neglects it, to circumcise the child. Here Isserles, who was dubious in the case of redemption going on in the absence of the father, has no doubt that the circumcision must go on though the father is dead (see Isserles to Yore Deah265:l).

Who, then, shall speak the father’s blessing to bring the child into the covenant, and so forth? Some say that anybody present may do so. Others say that the man who holds the child may do so. Perhaps, by analogy with what is the practice in redemption of the first-born, the grandfather is considered a parent and he may say it. I would suggest that the grandfather be appointed to say it or the one who is the Sandek or, perhaps, the rabbi himself who is the Beth Din.

RRR 94-97

Naming a Child When Circumcision Is Delayed

If owing to the child’s illness the circumcision is de layed, when should the child be named? The question raises a problem in the State of Louisiana, which re quires “an immediate registration of the name for the Office of Vital Statistics.” If it were not for this re quirement, the child could be named at the Brith, no matter how many days or weeks it was delayed.

Recently I formally named a child, with the bless ing, at the temple services, after immediately register ing the name as required by state law. Is this proper procedure? (From Rabbi Jerome Mark, Lake Charles,Louisiana)

The question of when and how to name a child when circumcision is delayed depends somewhat on the general laws involved in the naming of a child. In Biblical times, all the instances which we have of the naming of a child indicate that the child was named at birth, as one can see, for example, with the children of the matriarchs: “And Leah . . . bore a son and she called his name Reuben” (Genesis 29 : 32). This does not say expressly that it was at his birth that he was given his name, though it seems to imply it. Curiously enough, the first clear examples of naming a child at circumcision come, not from classic Jewish literature but from the New Testament. One is Luke 1: 59: “On the eighth day they came to circumcise the child; and they called him Zacharias after the name of his father.” The other is from Luke 2 : 21: “And when the eight days were accomplished for the circumcising of the child, his name was called Jesus.”

But nowhere in the Mishnah or in the Talmud is there the slightest mention of any requirement, or custom, to name a child at the circumcision. The first mention of it is in the Midrashic literature of the Middle Ages in Pirkey d’Rabbi Eliezer, chapter 48, where it is said, speaking of Moses, that his parents at his circumcision named him Jekuthiel. In fact, the only attempt that I have seen to explain the reason for naming a child at the time of his circumcision is a homiletic explanation quoted from Chamudey Daniel in the book “Brith Olom” (Blum, p. 227). He suggests since Abram was not called Abraham until after his circumcision (which occurred in his adult years) therefore children should not be named until their circumcision. Clearly this is hardly a sound analogy.

In the Halachic literature the first reference is in the Tur, Even Hoezer 265, in which it is stated that the author of the “Ittur” (Isaac Abbe Mari in Provence, twelfth century) speaks of the blessing which we now use in concluding the naming of the child. This seems to be the very first reference in the Halachic literature; and from then on it was apparently taken for granted that the child was named at the circumcision, because the Shulchan Aruch mentions the naming formula incompletely, as something well known. It is important to note that the fixed custom of naming the child at circumcision begins only in the Middle Ages; unless, of course, the two references in the Gospel of Luke indicate that the custom originated earlier among Greek-speaking Jews, but if so, it is strange that there are no other references to it in the entire Talmudic literature. From which we can conclude that at least it is no violation of any law but merely a divergence from custom if the child is named at another time than at the circumcision.

What, then, is the best occasion for naming a child whose circumcision is delayed on account of illness? In some of our Reform congregations, in cities where the children are circumcised by obstetricians on the third or fourth day, the family will either have a naming party on the eighth day (a sort of a Brith Mila without the operation) or the boy is named when the father is called up to the Torah in the synagogue, just as girls are named. Similarly, if circumcision is delayed, as in this case, the boy can well be named in the temple.

There is no real objection to naming the child before the circumcision. In fact, there is a partial analogy. If, for example, the child belongs to a family which is excused from circumcision altogether (because it is a family of bleeders in which previous children have died because of circumcision) then this child must, of course, be named without circumcision. In such a case the custom is that the child is named when the father is called to the Torah before the eighth day (see “Brith Olom,” loc. cit.). If, when the child is circumcised at a later time, the family wishes to have a Brith Mila party, there is no objection to having the child named again, making reference to the fact that the name is already consecrated.

As for sending in the name to the Bureau of Vital Statistics immediately, this can always be done, and it is not relevant to the circumcision ceremony. After all, while the name is religiously given or announced at the circumcision, the name can well be chosen as soon as the child is born, as was done in Biblical times (when a child was apparently named at birth). Therefore, in Louisiana the child’s name can be registered on the first or second day, and the formal naming delayed either until the child is named in the temple or at the Brith Mila.

RRR 59-62

Father Transfers Children to Christian Sunday School

A physician in your congregation removed his chil dren from your religious school and entered them into the Sunday School of the local Presbyterian Church. You ask whether this action affects his right to he a member of your congregation. (To Rabbi Max Selinger, Cumberland, Maryland)

There is no doubt that by taking the children out of the Jewish school this man has violated the positive commandment, namely, that it is a duty incumbent upon the father to teach, or to provide for the teaching of, the Torah to his children. There is also no doubt that by enrolling them in a Christian Sunday School he is putting them on the road to apostasy from Judaism. That he has committed a sin thereby is certain, but the specific question that you ask concerning him is a difficult one. Does he, because of this sin, forfeit the right to be a member of the congregation?

You know, of course, that as far as worshiping with the congregation is concerned, the Talmud states (b. Keritot 6b) that no fast day service is a proper one unless sinners are included among the worshipers. That is why, in the preliminary statement to the Kol Nidre, we say that God has commanded us to worship with sinners. In other words, if he should want to worship with the congregation, one would not forbid him that duty or privilege. But you ask whether he has the right to be a member, which means the potential right to be an officer and even to be honored by the congregation, as being called up to the Torah, and so on. In other words, just what has he forfeited by his sin?

The legal literature does not specifically mention a man’s status in the community in relation to this particular sin. But there is sufficient discussion of analogous matters to give us some guide as to the spirit of the tradition in such matters. There is a great deal of discussion in the law concerning “one who separates himself from the ways of the congregation” {Hapores m’darche zibbur). The statement is used specifically, at first, with regard to the question as to whether one should mourn for such a man if he dies or whether to engage in his funeral. For the sake of completeness, it would be well to go through this discussion from the beginning.

The Sifra to Emor, end of first section, and the Talmud in b. Sanhedrin 47a, speak of a priest being forbidden to “defile himself” by participating in funerals. He may do so, however, for his close relatives. The text, Leviticus 21 : 4, says, “He shall not defile himself, being a chief man among his people. . . .” To which the Talmud says, “If the relative acts truly as one of the people of Israel, the priest may defile himself for that funeral, but not if the person ‘hias separated from the ways of the congregation’.” It is from this passage in the Talmud that the phrase is carried over in all the later law. There is one other even sterner passage in the Jerusalem Talmud, Terumoth 8 : 3, in which it is said that if a shochet or a butcher feeds people trefa meat, we must not even bury him at all. The next important source is in the post-Talmudic treatise, “Semachot” 2 : 8, in which the law is applied not only as to priests, but as to all sinners and all relatives. Sefer Ha Eshcol, in the laws of the uncleanness of priests (p. 179, end of chapter 53) explains “he who separates . . .” as follows: “As for example apostates and sectaries.” A limitation is given by Solomon ben Aderet (0responsum 763) who says that a person who refuses to support the congregation financially belongs to this group, but that does not mean that we should not bury him and provide shrouds for him. It means that we do not do him the usual honors of standing in a row of mourners, and so forth. The fullest discussion of this sort of a person is given in the “Mordecai,” at the end of “Moed Katan,” chapter 3. There the Mordecai quotes his teacher, Meir of Rothenburg, who gives a careful limitation to the phrase “he who separates himself. . . .” He says, “It must be a person who commits these sins provocatively (l’hachis) and steadily, not merely occasionally.” The law is codified in the Shulchan Aruch (345 : 5). It is worth noting the text in the law as it is here definitely given. The phrasing comes from Maimonides (“Hilchos Avel” I : 10): “All who separate themselves from the ways of the congregation, these are the men who break the yoke of the commandments from their neck, and are not included with the rest of Israel in their actions, and in the honor given the festivals, and in attending synagogues and schools, but consider themselves free without the law, and also apostates to idolatry. For all these we do not mourn at all.” To which Isserles adds that if one does not bear the financial load of the congregation, his relatives may mourn for him but not the rest of the community.

While the law specifically speaks of burial, we may take it to be expressive of our general attitude to that person who separates himself. Now from the law as given we may- draw certain conclusions: First, much depends upon the motive of the person in his action. If, as Meir of Rothenburg said, the action was provocative (i.e., meant to affront the Jewish community) then the community is justified in the strictest reaction; but if the motive is not provocative, but due to some fancied advantage for his children, and if there is a possibility that the man can be persuaded to repent of his action, then the community would be justified in being patient and in trying to use persuasion.

However, there is another principle in the law not directly concerned with the motivation of the man, but concerned with the security of the Jewish community. Suppose, for example, that the action of this man, who may be a prominent citizen, should have a baleful influence upon other members of the community who may be led to follow his example, and that therefore the community may be endangered, then our legal tradition justifies any special strictness which may be necessary to protect the community, i.e., “to build a fence” (le migdar milsa). The right to stern action for communal defense is recorded in the Shulchan Aruch, Choshen Mishpot II, and Isserles, at the beginning of Choshen Mishpot 425. This special right of drastic action for communal defense has been used by Jewish community leadership all through the ages.

I cannot, therefore, give you a specific and clear-cut answer as to this man’s right to continue in the congregation, since the tradition gives us some leeway for practical and common-sense judgment. If the action is merely a chance notion on his part, he can just be permitted to belong as he wishes, or not; if, however, it is a studied affront to the community (l’hachis), he should be excluded. If the community reaction against him is one of scorn, he can be ignored. But if his example may be followed by others and the community thus endangered, then strict action should be taken. This, basically, is the spirit of our religious tradition on the matter.

RRR 120-127

Status of Apostates (Children and Adults)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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