CIRCUMCISION OF CHILD OF UNMARRIED MOTHER

What has tradition said about the circumcision of the child born out of wedlock, where no father can be present and there is no relative of the father’s family available? (From Judge J.W.P., New York City.)

IN general the Jewish law is that the duty to have a child circumcised is encumbent upon the father of the child. But suppose for some reason the father of the child neglects this duty, or suppose he is in another country. The duty, then, devolves upon the Beth Din to have the child circumcised. If the Beth Din for some reason neglects this, then the sin of neglect falls upon the person himself when he grows up. When he grows up, he is in duty bound then to arrange for his circumcision (see Shulchan Aruch, Yore Deah 261).

Of course, if the father is not Jewish, the duty of having his son circumcised cannot devolve upon him. A Gentile is not obligated to obey Jewish law (except, of course, the seven commandments of the “Sons of Noah”). Hence, clearly, a child must be circumcised at the order of the Beth Din. If the mother, however, is Gentile and the father Jewish, the child, as in all mixed relationships, follows the status of the mother and is a Gentile child and does not need to be circumcised at all.

It is to be noted that a mother has no obligation at all to arrange for the circumcision of the child (see Isserles to Yore Deah 261). Therefore if the mother does nothing at all about it, there can be no complaint against her. She is not obligated at all.

As for the question whether a child born out of wedlock must be circumcised, that, too, is clear. The Shulchan Aruch, Yore Deah 265:4, speaks of the duty of circumcis-ing an illegitimate child (mamzer) and the normal blessings are all recited over him, except the final prayer of well wishing. The commentator Shach says that this is because we have no desire that such should increase among us. Also it is required that it shall be announced that such a child is illegitimate. (These restrictions date back to Jacob Moellin [Maharil], in Mainz, fourteenth century). They must have had many such problems in those riotous days of persecution in the Rhineland.

However, it must be understood that the term “illegitimate child” (mamzer) does not apply to the average child born out of wedlock. Such a child is not a mamzer, unless the mother is married to some other man, or unless the father and the mother are of forbidden degrees of consanguinity. So there is no question that the child born out of wedlock must be circumcised and that if the father cannot do so, it is the duty of the Bes Din.

Most of the children with whom you deal are not children of married women by some man other than their husband, and generally not of people of forbidden degrees of consanguinity. They are certainly not mamzerim and even if they were, they would have to be circumcised if the mother is Jewish.

If the Bes Din has the duty of circumcising the child of a Jewish mother, who, then, is the Bes Din under present circumstances? It would be the rabbinate or the community; in other words, your organization would be deemed to have the obligation to see that the child is circumcised. If, therefore, the child is circumcised in the hospital, or if later the adoptive parents have the child circumcised, your organization has done its duty.

CCAR RESPONSA

New American Reform Responsa

94. A Berit For a Child of an Unmarried Mother

QUESTION: A Jewish man and a non-Jewish woman, who have no intention of being married, have had a child. They have asked the rabbi to preside at the berit. Is it appropriate for him to do so? (Rabbi Theodore S. Levy, Syracuse NY)ANSWER: Let us view this question through the eyes of tradition and then seek a modern approach to it. Tradition would not recognize the sexual relations of a Jewish man with a non-Jewish woman. Even if the couple were married civilly or by common law the marriage would not be considered qidushin (Yad Hil Ishut 115; Shulhan Arukh Even Haezer 154.23). Jewish recognition of marriage to non-Jews in a limited non-religious way was provided by the Napoleonic Sanhedrin of 1807 (N. D. Tama (ed) Kirwan (tr) Transactions of the Parisian Sanhedrin Kirwan p 155). We should remember that such marriages were not recognized by the various Christian churches in earlier periods either. The child of such a union is, of course, traditionally not considered Jewish (Kid 68b; Yeb 23a; Shulhan Arukh Even Haezer 4.5 ff). Such a non-Jewish child may then be converted by a bet din and would be accepted as any other infant who was converted to Judaism (Ket 11a; Shulhan Arukh Yoreh Deah 268.7; Shelomo Kluger Tuv Taam Vedaat II 111). We should note that the famous last century controversy (1864) between Rabbi Bernard Illowy and Rabbi Azriel Hildesheimer against Rabbi Tzvi Hirsch Kalischer centered around this matter. Rabbi Illowy of New Orleans felt that a child in that isolated, small Jewish community would probably not be raised as a Jew and might be mistaken as a Jew because of his circumcision. Subsequent discussions inquired whether the conversion actually benefitted the child; some traditional authorities felt that this would only be true if the child were raised in a traditionally observant household. This consideration, however, represented only a recent modern restriction. The general consensus moved in the direction of permitting such a circumcision. That also was the decision of Moses Sofer (Hatam Sofer Yoreh Deah #253). We should note Maimonides’ decision about Jewish soldiers who cohabited with non-Jewish women during wartime. If these women converted they would, of course, be considered Jews; they could then be married by the soldiers and their offsprings would be Jewish. If, however, a woman decided not to marry her Jewish soldier and continued to live with the soldier for as long as a year, then any child from such a union could be converted by a bet din (Yad Hil Melakhim 8.1-8). These traditional answers indicated that under a variety of circumstances it would be perfectly possible to have a berit for an infant child whose father was Jewish and whose mother is not Jewish. The berit would be for the sake of conversion and so it should be with us as our resolution on patrilineal descent deals with mixed marriage. It assumes marriage, a stable family and a Jewish education for the child. In this instance we seem to have some assurance that the child will be raised as a Jew. We should, of course, encourage the mother and father to marry, however, our primary concern here is with the child and not with the status of the parents.May 1988

If needed, please consult Abbreviations used in CCAR Responsa.